Reeves v Reeves

HIS HONOUR: These proceedings involve a dispute between the plaintiff and the defendant who are the only two children of the late Gloria Dawn Reeves (the deceased), who died on 28 May 2021. The dispute is in relation to their entitlements to valuable farming land at Stroud Hill, approximately 5-7 km north-east of the main town area of Dungog, NSW, though address details variously refer to the location as being both Dungog and Stroud Hill.

On 22 October 2010, the deceased executed her last Will (last Will), which gave the majority of the disputed land (which I will describe in more detail below) to the defendant (Kevin Wayne Reeves – but generally referred to and known as “Wayne”).

Without intending any disrespect, it is convenient to refer to various of the deceased’s family relations (many of whom bear the common surnames) by reference to their given or familiar family names.

Mr Birtles appeared with Mr Green for the plaintiff. Ms Fendekian appeared with Ms McNeil for the defendant. For convenience, I will refer to the submissions on behalf of the plaintiff and the defendant as submissions by Mr Birtles and Ms Fendekian respectively. However, it was evident that throughout the hearing their juniors gave them considerable assistance which should be properly acknowledged.

I will cite the evidence in the proceeding by reference to the Court Book (CB), transcript pages and exhibit numbers and cite the submissions by reference to the plaintiff’s opening written submissions (POS), the plaintiff’s closing written submissions (PCS), the defendant’s closing written submissions, which incorporated the defendant’s opening submissions (DCS), and transcript pages.

The means by which the plaintiff (Russell Robert Reeves) presses his case to a greater share of the disputed land are through three claims for relief, namely:

I have determined that the plaintiff’s construction claim and rectification claim fail but the plaintiff’s estoppel claim succeeds.

The plaintiff’s claims, whilst at one level are able to be simply stated, are grounded in a detailed factual history.

A significant degree of the history per se is not relevantly disputed. Nonetheless, the parties are at dispute regarding various matters which are said to bear upon the deceased’s intentions regarding what she proposed or wished the plaintiff to inherit at various points during her lifetime and, in particular, in the process of the deceased making her last Will.

The factual disputes in this regard, which on the plaintiff’s side are said to underpin his three claims and on the defendant’s side are said to undermine the three claims, focus on expressions used by the deceased and others to describe the disputed land and upon choices made by the plaintiff during his lifetime.

The extent of the deceased’s landholdings at the time of her last Will, the ownership of which did not vary in the subsequent 10 to 11 years leading to her death, is not in dispute.

By October 2010, the deceased held 21 pieces of land which are identifiable in a number of ways, but for precision are technically described as lots in deposited plans.

The case was, to a substantial extent, advanced on both sides on the basis that there was a ‘correct’ form of appellation of the various lots by which (it is contended) the deceased in some way conclusively defined the content of her intentions, whether expressed in forms of testamentary promises or in her last Will. The parties marshalled, both in affidavit and documentary form, a large volume of evidence prehearing directed to descriptions of the disputed land.

During the hearing, there was a considerable degree of testing of various witnesses regarding naming and forms of spelling of the disputed land (in whole or part).

Broadly speaking, the evidence revealed that the deceased and others, over many decades, used different names and various forms of spelling to refer to the disputed land, both individually and collectively, for different purposes.

Often, use of the descriptions was by reference to farms or farming operations. At other times, use of the descriptions was to the land, structures on the land or landmarks. The lots constituting the disputed land were rarely referred to by the deceased, the parties or relevant witnesses in casual or informal settings or engagements by reference to their lot and DP numbers. There is no real dispute that on parts of the disputed land there were relevantly, at various times, ‘farms’ managed in the sense of uses of land by the deceased and her husband for remunerative purposes. Those uses were in the form of dairying and beef cattle operations (farms). As will be explained further below, the two key dairy operations on the family farm were known as “Dingadee Dairy” and “Kennilworth Dairy”. Both of these operations have since ceased.

Ultimately, for the purposes of determining the plaintiff’s claims, it is the deceased’s use of names or descriptors, in context, which is relevant for the construction, rectification and estoppel claims. The plaintiff’s understanding of the deceased’s use of names is also relevant for his estoppel claim.

Determination of the plaintiff’s claims requires some outlining of the various family relationships, details of deceased’s last Will, her estate and, in particular, her property holding to provide sufficient context for addressing the claims for relief. Much of that material is not disputed per se and I will set that out below.

The deceased was born in Stroud, which is to the east of Dungog, in March 1928, and, by the time of her death in May 2021, was aged 93. As a child, she lived with her parents in what is described as the Dingadee area: CB 82[10], 269[70]. The name “Dingadee” is, according to the Geographical Names Register of the Geographical Names Board, of Aboriginal origin: CB 1056.

In her early childhood, she lived in a house known as “Dingadee House” on land which is not part of the estate land, but owned by the Hooke family: CB 82[10], 269[70].

In 1949, at the age of 21, the deceased married James Clifford Reeves, who is referred to in the evidence as “Jim” or “Jimmy” (I will refer to him as “Jim”). The deceased remained married to Jim for approximately 55 years until his death on 4 February 2005. She did not remarry or form any other relationship after Jim’s death.

In February 2021, the deceased was hospitalised, and she remained hospitalised until she passed away: CB 116[211].

The plaintiff, the deceased’s first child, was born in August 1951 and is currently aged 72. The defendant was born approximately four and a half years later in March 1956 and is currently aged 67.

The plaintiff is a research scientist: CB 81, 126, 212. He holds a Bachelor of Science degree (awarded with honours in 1974) and a Doctor of Philosophy degree in chemistry (awarded in 1978) from the University of Newcastle: CB 86[34]-[35]. He co-founded, and is an employee of, Apace Research Limited (Apace), a not-for-profit scientific research organisation: CB 91[57]. The plaintiff also co-founded, and is the non-executive managing director of, Ethanol Technologies Pty Limited (Ethtec) (CB 106[159], 121[242]) and is a director of Ethanol Technologies Investments Limited (ETI) (Exhibit D3). ETI is the parent company and controlling entity of Ethtec: T 163.27-29; Exhibit D3 page 22.

The plaintiff married Barbara Bensley (Barbara) in April 1980 and they remained married until Barbara’s death on 14 August 2016.

The plaintiff and Barbara have three children, namely:

Stuart and Andrew referred to the deceased as “mama”.

The defendant is a grazier and has always lived and worked on the family farm: CB 259. In 1975 he started studying physics at the University of Newcastle, during which time he stayed in Newcastle and returned to Dungog on weekends to work on the farm. Eventually, the defendant dropped out of university: CB 260[11]. In 2007, he resumed his studies on a part-time basis and in 2014 graduated with a Bachelor of Science degree majoring in physics. Since that time, the defendant has continued to work on the family farm: CB 259[4], 261[16].

The defendant has never married and has no children.

The deceased was survived by a sister Patricia, who is currently aged approximately 92: CB 147[4], [8]. Patricia’s daughter Karen Hewitt (Ms Hewitt) swore an affidavit in the proceedings on the part of the plaintiff.

During their lifetimes, the deceased and Jim were assisted by various workers on the farms, as well as a number of professionals.

Without attempting to be exhaustive, I note details of the following workers and professionals having some connection with the deceased:

The evidence in the proceedings contained numerous descriptions and references to the deceased’s landholding. For reasons which are explicable by the relief sought in the rectification claim, many of the witnesses annexed map documents to their affidavits principally for the purposes of outlining what they contended to be the deceased’s description, or their understanding of the deceased’s description, of her land.

That resulted in their being many different map documents in the Court Book materials.

Counsel, in their preparation for the hearing of the case, recognised the forensic assistance to the Court, and to the various witnesses, of having a large map version of the deceased’s landholdings.

Within a short period of time after the commencement of the hearing, each of the respective counsel handed up, as a form of aide-mémoire, a large-scale (A3 size) coloured map of the deceased’s landholdings. The document handed up by the plaintiff’s counsel was marked as MFI-1, and the document handed up by the defendant’s counsel marked as MFI-2.

Counsel and instructing solicitors are to be commended for their assistance to the Court in preparing such diagrams, which facilitated the hearing of the matter and the Court’s and witnesses’ understanding of the various lots referred to during the hearing.

Counsel also rightly recognised that, for the sake of simplicity, it is helpful (if not imperative) to identify the disputed landholding by reference to a single document, so that the evidence of the many witnesses could be comparable and comprehensible by reference to a fixed or standard reference point, and everyone was “on the same page”. During the course of the hearing, the vast majority of witnesses who were cross-examined in relation to the deceased’s landholding and naming of land were cross-examined by reference to MFI-2. That is explicable by the fact that the defendant’s counsel cross-examined first and there were more witnesses for the plaintiff than for the defendant.

As MFI-2 was the principal document to which witnesses were taken, it is convenient to use that document as being the document by reference to which I will describe the deceased’s land. To assist in making these reasons for judgment comprehensible, I will incorporate MFI-2 as an appendix to these reasons for judgment.

MFI-2 contains both a table (on the left) and a coloured map diagram (on the right). The table contains contained six columns with the following headings (from left to right): lot; purchase details; source (of purchase details); nickname; source (of nickname); and colour.

There are 22 rows of data in the table (under the abovementioned headings). In particular, under the heading “lot”, there are entries which for the most part identify lots of land by reference to lot and DP number. Those entries contain lettering identification from (a)-(v), being 22 entries.

Whilst there are 22 rows, there are a few anomalies in the alphabetical identification of lots (a)-(v). Without intending to be exhaustive:

The detail contained in the table is sourced principally from three affidavits read in the proceedings, being: the plaintiff’s first affidavit; the defendant’s first affidavit; and Mr Gowing’s first affidavit.

Insofar as the purchase details of the lots are concerned, there is, as I understood it, no substantial dispute regarding the descriptions contained in that column. Various witnesses were asked about the names recorded in the “nickname” column. The nicknames were inserted for only half (11) of the 22 rows. There is no dispute that the names have been sourced from the affidavit references. However, a number of the witnesses who were questioned about the nicknames did not agree that the relevant lots were known by such nicknames.

For the purposes of describing the real property owned by the deceased, the table includes all 21 lots. I propose to refer to the particular lots, for the purposes of addressing the evidence in the proceedings, by reference to the nominated letter in the MFI-2 table, for example “(a)”, “(b)” etc, as a means of identifying the particular lots.

For simplicity and ease of reference, I set out the lettering used to identify each of the deceased’s 21 lots in MFI-2 immediately below.

There are various features of the deceased’s landholding, and her landholding may be characterised in a number of different ways. A particular feature of the landholding, as is evident from MFI-2 and emerged from the evidence, is that there is (with some minor exceptions) somewhat of a natural division of the deceased’s landholding by reference to a road known as Stroud Hill Road, which runs essentially horizontally from east to west on MFI-2. Lot (o) (being Lot XX/DP XXXXXX) is the one lot which straddles both north and south of Stroud Hill Road. However, with that exception, there are 10 lots held by the deceased which lie entirely north of Stroud Hill Road and 10 lots which lie entirely south of Stroud Hill Road.

The 10 lots that lie north of Stroud Hill Road are referenced in MFI-2 as being lots (a), (b) and (d)-(j). For counting purposes, the lot which is lot (f) is in fact two lots (Lots X and X DP XXXXXX) which adjoin one another.

The balance of the 21 lots held by the deceased, barring lot (o), lie entirely to the south of Stroud Hill Road. The major portion of lot (o) also lies south of Stroud Hill Road. In the table in MFI-2, those 11 lots are listed as lots (k)-(q) and (s)-(v).

The plaintiff and his legal representatives, for the purposes of advancing his case, essentially described the 10 lots north of Stroud Hill Road as being the “Dingadee lots” (CB 37[1]) and the remaining 11 lots, all (essentially) lying south of Stroud Hill Road as being the “Kennilworth lots”. Those two descriptions conveniently group the lots under a descriptor which was not seriously disputed between the parties: CB 271[80], 272[91], 275[110], 276[116]. For convenience, I will adopt the same description.

The disputes regarding nomenclature, at least initially, were as follows:

The land referred to in row (r) in the MFI-2 table identifies land being PLT X in DP XXXXX, which is the subject of Enclosure Permit XXXXX from the NSW Department of Planning, Industry & Environment: CB 1168. The plaintiff describes it as being PLT X in DP XXXXX (CB 85[32(g)], 107[164(h)]), while the defendant and Lachlan Wilson (Mr Wilson, his solicitor in the proceedings) describe it as being of part of Lot X in DP XXXXXXX: CB 276[117], 299[7]. I will refer to it as the “enclosure permit entitlement”.

A Crown Land Search was conducted by the defendant’s solicitor (CB 299[5]), which describes the enclosure permit entitlement as being an enclosed road and a “Crown public road through and west of Lot [X] DP [XXXXXXX]”: CB 1168, 1347. It is evident from the map attached to the search that it comprises in fact two small, enclosed road areas, one being “through” lot (q) (Lot X DP XXXXXXX) and the other to the “west” of lot (q) and adjacent to Lot X DP XXXXXX, benefiting lot (q) with the area of 7,359 m²: CB 137[64], 276[117], 277[119], 299[7]-[8], 1169, 1268, 1348.

An enclosure permit is an authorisation issued by the Department to an owner of an adjoining property and allows the Crown road to be used for the grazing of stock and fenced into the owner’s private land. The permit, whilst described as a form of “holding” (CB 1168), does not give the person with the benefit of the permit ownership of the Crown road or allow them to restrict access along the Crown road: CB 1255. In fact, it is subject to small annual rent payable annually in advance on 3 October each year, which for the 2021 year was $516: CB 1168, 1281[54], 1347.

For that reason, the land subject to the permit is not to be understood as being land forming part of the deceased’s estate (despite the form of the description of real property in the inventory of property). When a property enclosing a Crown road is sold, the enclosure permit remains in force and the new owner of the land is liable for payment of the rent, including any arrears of rent and interest: CB 1255[15], 1345.

There are a number of other features which are evident on the map in MFI-2, and are referred to in some of the evidence in the proceedings, that bear mentioning.

There is a railway line that runs east to west across the deceased’s land. It runs south of Stroud Hill Road on the east and crosses Stroud Hill Road between lots (k) and (o). North of Stroud Hill Road, it enters the land area owned by the deceased (after winding through other land not owned by the deceased) between lots (j) and (h). It continues through to Monkerai Road (sometimes described by Stuart as Monkerai Creek Road: T 242-243), runs past lot (a), borders lot (e) and continues south effectively around the border of lot (a).

Lot (v) is a small lot being the site of the deceased and Jim’s first home (sometimes referred to in the evidence as the “original home” e.g. CB 83[17], 223[99], 1245[46]), and lot (u) is a small lot with the site of the deceased’s second home (sometimes described in the evidence as the deceased’s family home or “Kennilworth Homestead” e.g. CB 82[15], 1266[45]). Those lots, when one looks at MFI-2, are distinct, but appear to be more generally located within the boundary lines of lot (s).

On the western side of lot (s) and lot (o), there is a road, being Majors Creek Road, which runs to the north and is effectively perpendicular to Stroud Hill Road. Monkerai Road generally runs along the border of Lot XX DP XXXXXX (the plaintiff’s lot), lot (b), lot (g) and lot (h) to the east and (relevantly) lot (a) and lot (d) to the west. To the far left side of MFI-2 there is another road, Fosterton Road, which, in its northern part, runs north-south in lots (not owned by the deceased) to the west of lots (d) and (a). In its lower reaches, Fosterton Road touches along the border of lots (a) and (f) and eventually intersects with Stroud Hill Road: T 429.28-430.15.

Lot (i) is exceedingly small and hard to discern from MFI-2 or MFI-1. Early on in the hearing, it was marked with an X on MFI-1, with the agreement of counsel.

For the most part, the lots forming part of the Kennilworth lots were acquired by Jim and/or the deceased from 1956 through to the beginning of the 1970s. The exception was lot (n) which was purchased in 1986.

The lots forming part of the Dingadee lots were purchased later than the set of Kennilworth lots (excepting lot (n)). Lots (a) and (f) were purchased in 1979, lots (d) and (e) were purchased in 1980, lot (b) was purchased in 1987, lots (g), (h) and (i) were purchased in 1993 and the final lot (j) was purchased in 2002.

Thus, all of the 21 lots had been acquired by 2002.

There was some slight dispute on the affidavit evidence regarding the sizing of the various lots. The plaintiff in his first affidavit (sworn 15 August 2022) indicated that the total area of the farm comprising the Dingadee lots and the Kennilworth lots is 788.68 ha: CB 106[161]. That figure was taken from records which the plaintiff had accessed from the NSW Valuer General: CB 136[58]. It is also supported by a reference in the NSW Local Land Services Rates 2001 Tax Invoice: CB 992. Mr Wilson took issue with that sizing figure in his affidavit (affirmed 4 October 2022) and responded to the plaintiff’s calculations: CB 299[7]-300[13]. The plaintiff responded to Mr Wilson’s calculations in a subsequent affidavit (sworn 28 October 2022), in which he explained his calculations and ultimately accepted the figures given by Mr Wilson: CB 136[58]-137[64].

There is no issue on the hearing which is vitally dependent on the actual size of each of the lots or their total sizes. For the purposes of the hearing, the parties proceeded on the basis that the areas referred to in the evidence of a valuer, Mark Ellis (Mr Ellis), were accurate, or at least that his evidence appropriately details the size of the areas. On that basis, I note that Mr Ellis indicated that the 10 Dingadee lots comprise an area of approximately 301.13 ha (CB 1251) and the 11 Kennilworth lots comprise an area of 419.137 ha (CB 1252), together being a total of approximately 720 ha.

Mr Ellis provided evidence in the proceedings on behalf of the defendant which included a valuation report dated 13 September 2022 (initial valuation report): CB 1247-1365. He provided land descriptions of the various lots in that report: CB 1267-1268.

On 24 August 2023, the plaintiff swore an affidavit which was directed to providing additional evidence in relation to the parcels owned by the deceased, including their past use and current occupation, in response to Mr Ellis’ initial valuation report. In that affidavit, he provided a description of the Dingadee lots and the Kennilworth lots: CB 212-224. (His description of the 10 lots as being the Dingadee lots was, for evidentiary purposes, limited to being understood as his contention regarding which lots comprise the Dingadee lots.)

On 31 August 2023, Mr Ellis provided a supplementary valuation report addressing observations as to whether he agreed with the plaintiff’s description of the lots and whether the plaintiff’s descriptions changed any of his reasoning or conclusions in his initial valuation report: CB 1241-1246.

From approximately early 2007 (T 36.35-39) (with an exception I will refer to below), the deceased leased out three of the Kennilworth lots, namely (k), (l), (m) and part of lot (o) (being that part north of Stroud Hill Road), together with the 10 Dingadee lots.

The exception being that one of the “leases” is in fact a “licence”. Specifically, a land use licence agreement, dated 16 November 2013, between the deceased and a company, Baker Family Group Holdings Pty Ltd, as trustee for the Baker Family Unit Trust (Baker Family licence): CB 945-948. The Baker Family licence is in respect of premises described as XX Monkerai Road Main Creek, comprising 420 acres of grazing land and incorporating steel cattle yards and a hay shed, covering lots (h), (j), (b), (g) and the part of lot (o) north of Stroud Hill Road, together with the plaintiff’s Lot XX DP XXXXXX (lot (c) in MFI-2): CB 110[177(i)], 945–948. The Baker Family licence is signed by the deceased and witnessed by the defendant: CB 948.

For the purposes of the plaintiff’s claims, the matter proceeded on the basis that the plaintiff’s own land (being lot (c)), which was included in the Baker Family licence by the deceased, was (self-evidently) not included in his claim for what is described as the “leased lots”. Thus, unless otherwise indicated, I will refer to the “leased lots” as being the 10 Dingadee lots plus lots (k), (l) and (m), and part of lot (o): e.g. CB 3[3], 7[36], 37[3], 41-42[36], 1286, 1350. As there were 13 lots and part of another lot, the leased lots were at times during the evidence described as being 14 lots.

In light of the plaintiff’s ultimate claims in the proceedings, it is convenient to refer to the three Kennilworth lots which were leased, namely that lots (k) [Lot X DP XXXXXX], (l) [Lot X DP XXXXXX], (m) [Lot X DP XXXXXX] and part of lot (o) [part of Lot XX DP XXXXXX] as being “the Kennilworth leased lots”.

Mr Ellis valued the 10 Dingadee lots, which comprise an area of 301.13 ha, at a total amount of $5,420,375 (adopting a rate of $18,000 per hectare): CB 1251.

Mr Ellis valued the 11 Kennilworth lots, which comprise an area of 419.137 ha, at a total amount of $5,130,123 (adopting a rate of $12,240 per hectare): CB 1252.

Mr Ellis valued the leased lots as well. However, in valuing the leased lots, he did not include the small part of lot (o) which is north of Stroud Hill Road. Thus, the value Mr Ellis gave was for the 13 lots, which he indicated comprised land area of approximately 320.496 ha, being $5,768,925 (adopting a rate of $18,000 per hectare): CB 1252.

There was no broad challenge to Mr Ellis’ valuation reports. Rather, there was a very discrete challenge to the value that Mr Ellis attributed to lot (e), being the lot which is bounded to its north, west and south by lot (a) and, to the east, by the railway line.

In response to the plaintiff’s statement that lot (e) was effectively landlocked, Mr Ellis indicated in his report that it is unlikely that the land would have potential to be sold in isolation and he considered it to be contiguous with adjoining lots, but nonetheless confirmed his assessment of value at $18,000 per hectare as at September 2022: CB 1242.

In response to the plaintiff’s comments more generally, Mr Ellis revised the value that he had attributed to a number of the Dingadee lots in his supplementary valuation report, resulting in a revised value for the 10 Dingadee lots of $4,953,527: CB 1245. Likewise, he revised his value for certain of the Kennilworth lots, resulting in a revised valuation for those 11 lots at $6,309,750: CB 1246.

Mr Ellis was cross-examined, and I considered him to be a careful, reliable and truthful witness.

The critical part of his cross-examination focused upon lot (e) and its potential use and value. He was cross-examined on the basis that the lot, being bounded on the east by the railway line, has no vehicular access other than what might be obtained by access through lot (a) at some point on the northern, western or southern boundaries of lot (e).

Lot (e) is 3.25 ha. Mr Ellis explained that, if the lot was totally isolated with no vehicular access, the value of the lot would represent a constrained value. This would most likely be the value of the lot to an adjoining owner, which would take into account the value of the contiguous lots less some sort of discount to reflect the fact that the transaction would take place “off market”, or “not [be] exposed to the overall market”, because the most likely buyer would be the adjoining owner (which presumably causes the price to have little upward pressure without competition amongst buyers): T 375.

If there were access to lot (e), Mr Ellis indicated it would probably sell as a lifestyle lot, by which he meant that the likely use would involve a purchaser building a house on the lot and having a hobby farm or undertaking hobby farm style pursuits on the property: T 376. Mr Ellis indicated that if there were no access to lot (e), the value of the lot would be determined by (or have to take into account) the cost of acquiring a right-of-way over the adjoining property, based on market rates which would be a percentage of the rate per hectare: T 376-377.

During the hearing, there were two other diagrams which featured largely in the evidence of Mr Doyle, the solicitor who attended on the deceased for the purpose of making the last Will, and Mr Gowing. Although there are various forms of the diagrams in evidence, Mr Gowing and Mr Doyle were cross-examined by reference to a version of the two diagrams which appear at CB 1028 and 1029 and at pages 26 and 27 of Exhibit P1. The diagrams present as forms of topographical maps that cover the area where the deceased’s property is located. The document at CB 1028 and page 26 of Exhibit P1 identifies, through shading or hatching, the lots held by the deceased south of Stroud Hill Road, and contains handwriting under the map “South of Stroud Hill Road”. I will refer to that map as the “South map”. The document at CB 1029 and page 27 of Exhibit P1 depicts lots held by the deceased, identified through shading or hatching, which are north of Stroud Hill Road and contains under the map handwriting “north of Stroud Hill Road”. I will refer to that map as the “North map”.

Colour versions of the North map and South map appear at CB 838-839 (and 1026-1027). They were sourced by Mr Gowing from Mr Brorson, who provided them to Mr Gowing on 22 June 2010: CB 245[14]. The colour versions contain no annotation on the actual maps themselves. The documents which I have described as the North map and South map do, however, contain handwriting. As the maps bear some importance in relation to the Will-making process, I will later in these reasons briefly address the context in which the maps were sourced from Mr Brorson.

From the time of the acquisition by Jim and the deceased of the initial Kennilworth lots around the 1960s, the couple operated a dairy farm on Kennilworth. That farm continued in operation through the childhood years of the parties.

In March 1979, Jim and the deceased purchased lot (a), on which lot the Dingadee Dairy operated. The plaintiff states (and I accept) that he contributed $26,000 to the purchase price of $80,000 for lot (a).

The Dingadee Dairy was operated by a share farmer, Colin Sullivan (Mr Sullivan), under a share farming agreement with Jim and the deceased, by which they received income from the dairy and also from the house on the lot. The plaintiff says, and I accept, that he forwent a share of income from that arrangement at Jim’s request.

From about 1990, Stuart commenced helping at the Kennilworth Dairy and doing other farm jobs on the weekend with the plaintiff, Jim and the defendant. According to Stuart, Jim ran the Kennilworth Dairy on what he described as the “Kennilworth property”, which, according to his understanding (T 175), constituted the property held by Jim and/or the deceased on the south side of Stroud Hill Road: CB 182[6], [8]. The “Dingadee property”, to Stuart’s understanding, constituted the landholding on the north side of Stroud Hill Road.

In 2001, the share farming agreement with Mr Sullivan for the Dingadee Dairy came to an end, and Jim then engaged workers to run the Dingadee Dairy: CB 105[153], [154].

In or about December 2006, the deceased decided to close the Kennilworth Dairy and raise beef cattle instead: CB 111[183]; 138[67], 213[11], 217[48], 263[30]; T 33, 300.35-37.

In 2006, the Australian Rail and Track Co-operative (ARTC) made a decision to remove two wooden bridges that connected the farm between land south of the railway line and land north of the railway line. ARTC advised that it was not intending to replace the bridges. The deceased decided that she would not accept this decision and sought compensation against ARTC: CB 264[41]-[42].

In about November 2009, Mr Gowing assisted the deceased to reinstate her entitlement to compensation arising from shares she had lost in Dairy Farmers Cooperative Pty Ltd as a result of the milk quota system: CB 247[21].

In May 2010, and for some months thereafter, Mr Gowing assisted the deceased in a dispute with Binnie Beef which related to cattle that were on agistment on the deceased’s property: CB 246[20].

On 24 July 2010, the deceased received a compensation payment of $300,000, plus payment of her legal expenses, from ARTC as a result of her claim: CB 246[19].

In 2006, approximately a year after Jim died, the deceased informed the plaintiff that she had decided to lease “the Dingadee paddocks”: CB 109[174]. The deceased indicated that she would contact Mr Dillon to arrange it. It appears from about that time arrangements were made for leasing.

Mr Dillon indicates that, in about 2008, approximately three years after Jim died, the deceased contacted him wishing to engage Dillon & Sons to lease some of the Dingadee paddocks: CB 172[21]. It seems to me that the timing of the deceased’s initial contact with Mr Dillon was earlier than that, namely in or about late 2006. However, nothing of substance turns on that.

Mr Dillon met with the deceased at her home, sitting at the kitchen table, to discuss her requirements. He took topographical plans of the area with him and showed the plans to the deceased: CB 172[22]. According to Mr Dillon (CB 172[22]):

Mr Dillon indicates that he did not ask the deceased to identify the Dingadee paddocks as it was obvious to him, based on his past dealings with the deceased and as a property owner in the area, that she was referring to her land on the north side of Stroud Hill Road: CB 172[23].

Mr Dillon indicates that, in her instructions to him, the deceased variously referred to the Dingadee paddocks as (CB 173[24]):

Mr Dillon attended the deceased at her home on at least five occasions to discuss the leasing of the Dingadee paddocks. Dillon & Sons acted for the deceased in respect of the leasing of the paddocks, however, whilst he has searched the firm’s records, Mr Dillon has not been able to obtain copies of those leases: CB 173[25]-[29].

In early 2007, following the closure of the Kennilworth Dairy (in about December 2006), the deceased commenced leasing the 14 lots which I have described as the leased lots: T 36.37-39; cf CB 109-110[174]-[176].

The deceased then commenced to use the Kennilworth lots, apart from the four lots which she had leased, in the beef cattle raising operation which was managed by the defendant: CB 111[183].

There is little detail regarding those arrangements. The only formal documentation adduced on the hearing regarding the leasing arrangements was:

Under the Baker Family licence, the licensee had an obligation to maintain fencing on the property to a suitable standard to accommodate the use: CB 947 [cl 20].

Under the Wall lease, the permitted use was agistment of cattle: CB 972. Under the lease, the lessee had obligations (CB 978-979):

Mr Moxey was unable to precisely identify which lots were leased to Peter Moxey and Diane Moxey (the Moxeys): T 368. The defendant, whilst deferring to what he thought was Mr Moxey’s superior knowledge, gave evidence suggesting that the area leased to the Moxeys was the three lots west of Monkerai Road, being lots (d), (a) and (e), and that the lease was for about six years: T 272.5-44. He intimated that the leased lots were not all leased separately as it was too much hassle to do so: T 281.156-120.

As I will set out further below, it is the plaintiff’s case that he spent substantial time and money maintaining the leased lots over a number of years.

Jim made a Will dated 6 December 1950 (CB 399), by which he appointed the deceased as executrix and left his entire estate to her. Consequent upon his death, the deceased sought and obtained probate of that Will.

The deceased, so far as the evidence discloses, made three Wills during her lifetime, namely:

A signed version of the deceased’s 2006 Will is not in evidence. However, there was no dispute between the parties as to its contents and it was agreed that the 2006 Will is in accordance with the document contained in the Court Book: T 35.6-13.

The deceased, by cl 1 of the 2006 Will, appointed the plaintiff and the defendant to be joint executors and trustees.

She gave the whole of her estate upon trust to pay all her just debts, funeral and testamentary expenses, and to:

The deceased received advice, from Mr Gowing and Mr Doyle, about incorporating into her Will the terms of what is described as a “Beneficiary Controlled Testamentary Trust” (testamentary trust provisions).

The deceased’s last Will is a lengthy document of 21 pages together with a back sheet.

I will say more about the content and the structure of the last Will later in these reasons.

Leaving aside, for the moment, the dispute arising from the construction and rectification issues and the detail of the testamentary trust provisions, at face value the dispositive provisions of the last Will are relatively straight-forward. The dispositions are summarised in a form of affidavit of executors affirmed by the plaintiff and the defendant on 17 May 2022 and 2 June 2022, respectively (executors’ affidavit), as follows (CB 1081-1082):

On 10 September 2021, Mr Gowing renounced probate of the last Will.

Following correspondence between the parties’ respective solicitors, the parties made a joint application for probate by summons dated 28 June 2022 and signed by Mr Doyle (who, although being the solicitor for the defendant, filed the document on behalf of both parties for the purposes of making the application).

The summons was supported by the executors’ affidavit as I have noted.

Having regard to the plaintiff’s claims in the proceedings needing to take their course, it became evident to the parties that an interim administrator would be required to assist in the administration of the estate.

On 19 December 2022, Katelin Whitley (Ms Whitley), a solicitor based in Singleton, was appointed as interim administrator of the deceased’s estate for the period up to 19 June 2023: CB 1217.

The special grant of administration was in essentially a usual form, limiting Ms Whitley’s role to: collecting and preserving the deceased’s assets; paying liabilities of the deceased or her estate incurred in the usual course of business; establishing and operating estate bank accounts; keeping an account of all receipts and disbursements in the administration of the estate; and appointing an accountant to keep estate records and prepare tax returns.

The orders of the Court noted the specific agreement of the parties that Ms Whitley, as interim administrator, would be requested to record farm income and all leasing income and expenses relating to the land separately between identified parcels of land which were categorised as being “Russell’s land”, “Kevin’s land” and “the disputed land”: CB 1217-1218.

The orders further permitted Ms Whitley to delegate to the defendant the selling of livestock, on the basis that he would advise Ms Whitley and the plaintiff of such sale and identify the number of livestock sold and the proceeds of sale received.

The orders also noted an agreement between the parties that an amount of $125,000 would be paid from the estate towards the defendant’s costs in the proceedings. It was further noted that the defendant may apply to the Court at any time to increase the amount of the payment, both parties had liberty to apply to the Court for a different costs order at the conclusion of the proceedings and both parties shall reimburse the estate for any legal costs paid from the estate in the event that a different costs order is ultimately made: CB 1218-1219.

The orders made on 19 December 2022 (specifically, Order 4) envisage that Doyle Wilson Solicitors would be acting for the parties as executors in relation to the application for probate: CB 1218.

On 2 March 2023, a formal notation was made by Hallen J to the effect that the Court could not admit the deceased’s last Will, in its present form, to probate, until such time as the rectification claim was determined: CB 1223.

On that occasion, a formal order was also made pursuant to r 7.10(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that the defendant be appointed to represent the deceased’s estate for the purposes of the proceedings: CB 1224. The appointment of Ms Whitley as interim administrator was also extended until further order of the Court or the issue of the grant of probate of the deceased’s last Will, whichever is the earlier: CB 1224.

Further, an order was made that, in addition to the $125,000 earlier paid to the defendant on account of his costs in the proceedings, an amount of $220,000 also be paid from the estate towards the defendant’s costs, on the same terms of there being liberty to either party to apply to the Court for a different costs order at the conclusion of the proceedings: CB 1224.

During the hearing, the defendant sought, by notice of motion, further payments of money on account of his costs. I dealt with that application and on 11 October 2023 made the following orders:

The parties, in their executors’ affidavit, annexed a form of inventory of property of the deceased’s estate: CB 1087-1089 (see also CB 1053-1055).

Whilst nothing of significance turns on it, that initial inventory of property is somewhat incomplete in that it did not include three of the deceased’s lots, being lots (e), (g) and (i).

Subsequently, an amended inventory of property was prepared which includes those three lots: CB 126[7], 1164. The amendment was only necessary to include those lots. Both inventories ascribed the same value to the landholding (namely an estimated $10 million). Both inventories include the enclosure permit entitlement as “property” of the deceased.

The amended inventory of property may be summarised as follows:

The executors’ affidavit disclosed that the deceased had relatively minor liabilities as of the date of her death, comprising $4,161.63: CB 1082-1083.

Accordingly, the net value of the deceased’s estate was disclosed as $12,312,319.17: CB 1083.

The above description of the inventory of property reveals that the deceased’s landholding comprised the vast majority of the deceased’s assets, being approximately 81% of the net estate.

As indicated above, the plaintiff’s case revolved around three forms of relief, being the construction claim, the rectification claim and the estoppel claim.

Chronologically, the evidence giving rise to the estoppel claim arises prior to the evidence bearing upon the construction claim and the rectification claim. However, the construction claim and the rectification claim were the primary claims advanced by the plaintiff. On the plaintiff’s case, there was no need to pursue relief in respect of the estoppel claim if he were successful on the construction claim and/or the rectification claim.

The pleading of the estoppel claim distinguished between initial representations or “promises” (allegedly made by Jim and/or the deceased to the plaintiff from about 1969 up to 2005) on the one hand, and subsequent representations or “promises” (allegedly made by the deceased to the plaintiff from about 2006 up until her death) on the other.

The context for the subsequent representations had a genesis in the death of Jim in 2005, but was more particularly consequent upon the deceased’s decision to close the Kennilworth Dairy, lease the leased lots and set up a beef cattle operation.

Specifically, according to the plaintiff’s further amended statement of claim dated 7 September 2023:

Mr Birtles submitted that the initial promises were repeated to the plaintiff on at least eight separate occasions between 1969 and 2005 (CB 78I[43]; POS [54(l)]), and that the deceased repeated the subsequent promises to the plaintiff on at least nine occasions between 2008 and 2020: CB 78I[45]; POS [54(m)]. Exactly how those numbers were counted is not clear to me. However, as outlined below, clearly there was evidence of repetitions of the initial promises and the subsequent promises.

Having regard to the pleadings, the evidence and the way that the case was conducted at hearing, the real issues in dispute are as follows:

In his case, the plaintiff read affidavits from 12 deponents, including himself. The witnesses in the plaintiff’s case, apart from himself, were his three children Andrew, Stuart and Angela, the deceased’s niece Karen, Mr Addison, Mr Shepherd, Mr McMahon, Mr Dillon, Ms Irwin, and two friends of the plaintiff, being Michael McFadyen (Mr McFadyen) (a high school friend: CB 194[2]) and Raymond John Armstrong (Mr Armstrong) (a university friend: CB 203[1]).

The defendant read affidavits from 6 deponents, including himself. The witnesses in the defendant’s case, apart from himself, were Mr Gowing, Mr Doyle, Mr Ellis, Mr Moxey and Mr Wilson, the defendant’s solicitor.

In New South Wales, s 140 of the Evidence Act 1995 (NSW) provides:

In GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857, Kiefel CJ, Gageler (as his Honour then was) and Jagot JJ, in the context of considering whether there should be a stay of proceedings, addressed comments to the issue of how courts grapple with conducting a civil trial fairly, including the assessment of evidence which involves the recollection of events which occurred long in the past. Their Honours stated (footnotes omitted):

The Court scrutinises very carefully a claim against the estate of a deceased person. It is not that the Court looks on the plaintiff’s case with suspicion and as prima facie fraudulent, but it scrutinises the evidence very carefully to see whether it is true or untrue: Plunkett v Bull (1915) 19 CLR 544 at 548-549 per Isaacs J; [1915] HCA 14.

The frailty of human recollection is well-known. In Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, Gleeson CJ, Gummow and Kirby JJ stated as follows (footnotes omitted):

Thus, where possible, evidence should be approached and weighed having regard to objective surrounding facts which are either undisputed or established by contemporaneous documents and the inherent probabilities of life as they bear upon the events: Horn v GA & RG Horn Pty Ltd [2022] NSWSC 1519 at [672].

It may also be of assistance to assess and weigh the evidence, not only by reference to its immediate context, but also in the context of the total evidentiary mosaic in the case: Wild v Meduri [2023] NSWSC 113 (Wild v Meduri) at [336] per Hallen J.

A particular difficulty in this case is that there are very little contemporaneous documents that bear upon the conversations and promises said to have occurred as between the plaintiff and his parents, and in particular with the deceased.

In light of that, my approach has been to assess the evidence of the plaintiff having particular regard to such contemporaneous documents that exist, testing in cross-examination, any prior inconsistent statements, evidence of other witnesses addressing conversations with the deceased and the inherent probabilities of life.

As I note below, I was assisted by the cross-examination in the proceedings and, in particular, by the very capable cross-examination by Ms Fendekian. Ultimately, albeit ironically, through that capable cross-examination, there was a body of evidence (in particular, from the plaintiff and his two sons, Andrew and Stuart) which was helpful in persuading me that the promises on which the plaintiff’s estoppel case relies were in fact made by the deceased.

Each of the plaintiff’s witnesses, apart from Mr McFadyen, were cross-examined. Each of the defendant’s witnesses, apart from Mr Wilson, were also cross-examined.

As a preliminary observation, each of the main witnesses for the plaintiff, being himself and his two sons, Andrew and Stuart, were very strongly tested in cross-examination. Generally, they all impressed me as truthful and generally reliable witnesses. Their cross-examination was rigorous, without transcending bounds of propriety.

As I indicated during submissions (T 429.6-14), Ms Fendekian to my mind showed considerable skill in probing possible flaws in their evidence. She was often not content (as some cross-examiners are) to simply put the competing case, but exhibited good technique in attempting to unpick witnesses’ evidence by reference to matters which might have caused their observations to be fleeting, unremarkable or distracting, and thus unmemorable. At times, just when one thought her initial testing foray had subsided and the witness would get some respite, she returned to the fray with alternative angles of winnowing flaws in recollection.

Possibly lesser mortals might have wilted under Ms Fendekian’s testing. However, to my mind, each of the plaintiff, Andrew and Stuart on the whole withstood the challenges with much of the substance of the plaintiff’s evidence intact and virtually all of the substance of Andrew’s and Stuart’s evidence unimpaired.

Whilst judges are mindful of the fallibility of human recollection, in the case of Andrew and Stuart, each appeared to have good reasons for recollecting events and my sense was that each of them appeared to have a genuine recollection of relevant events.

The plaintiff was cross-examined over three days (T 26-36, 41-64, 70-149, 152-167). He, as Ms Fendekian readily acknowledged, is a man with impressive academic credentials. Even the defendant, who was not enamoured of his brother, acknowledged that it was clear that the plaintiff “was going onto higher education because he was a brilliant student” and he applied himself “to his studies”: CB 260[7]. Some witnesses have a ‘memory like a sieve’, unable to hold all the content of much of what is observed or learned. The plaintiff generally impressed me as someone who had the substance (if not necessarily the precise detail) of many of the events he recounted relatively well-embedded in his memory.

The plaintiff was, in my assessment, attentive to the questions, measured and careful without being overly cautious. He, generally speaking, did not engage in debate, nor unnecessarily volunteer information.

The plaintiff’s evidence includes numerous accounts of alleged conversations, some over 50 years ago, with persons who are now dead. Ms Fendekian submitted that the key conversations on which he relies are not corroborated by any other witness and contended that uncorroborated evidence of this kind is to be approached with considerable caution, citing Wild v Meduri at [313]-[322] (DCS [142]). She also noted (at DCS [32]) that, in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) at [22], Leggatt J (as his Lordship then was) cautioned that:

Specifically, Ms Fendekian raised several matters bearing upon his recollection.

First, Ms Fendekian submitted that the plaintiff under cross-examination exhibited a high level of confidence in his recollection of what his parents allegedly said to him in various conversations, yet in several instances failed to reliably recall what, if anything, he said in response. She cited examples at DCS [33]-[34(a)] (lack of response criticism).

Secondly, Ms Fendekian criticised the plaintiff’s intransigence of insisting that he had a clear recollection of some parts of conversations but other evidence showed his recollection was unreliable (mistake criticism): DCS [33]-[34(b)]. I will address this matter first and deal with the lack of response criticism after that.

A mistake criticism Ms Fendekian raised involved questioning of the plaintiff about a conversation which he had with Jim in the early 1990s, said to have taken place while they were spraying woody weeds on lot (d) with Stuart: CB 101[125]. The plaintiff sought to anchor the accuracy of his recollection by reference to Fosterton Road being on the right-hand boundary of lot (d), but later changed his evidence to refer to Monkerai Road (being on the eastern side of lot (d)). Other anchors he relied upon, including reference to black prince cicadas and Carowiry Creek, he acknowledged were not confined to lot (d): T 103.14-107.19. The plaintiff accepted that his reference to Fosterton Road was an error and in fact the particular road was Monkerai Road: T 105.27. However, he had other anchors, including the fact that the creek had different characteristics and the particular location that they were spraying had a lot of quartz through it: T 106.49-107.8.

Whilst the plaintiff accepted he made a mistake in his reference to Fosterton Road, overall my impression was his reference to season (T 104.30) and geology (T 106.49-107.8) did assist his recollection so as to make it substantially reliable as to the conversation recounted.

The lack of response criticism, Ms Fendekian submitted, speaks to the fallibility of the plaintiff’s memory, and the unreality of his insistence that he has a clear recollection of other parts of the same conversation.

I have considered the submission. However, whilst accepting the plaintiff’s recollection was not perfect, I nonetheless consider that it was substantially correct and reliable.

The tenor of the cross-examination in relation to the lack of response criticism was that it was unusual that the plaintiff could recall what his parents had said but he made no response to their statements – the likely explanation or inference being that the plaintiff had no real genuine recollection of what occurred.

A brief example will illustrate this. The plaintiff was questioned about a conversation with his parents, said to have taken place in early 1990, regarding the prospect of them purchasing further property so that the landholding would be big enough to, eventually, allow each of the plaintiff and defendant to run their own separate farms: CB 100[122]. At T 99-100, the plaintiff’s cross-examination proceeded thus:

A number of observations may be made about the lack of response criticism.

One observation is that the plaintiff did not claim he had perfect recall on all occasions. He indicated that he could recall conversations with clarity but not precision: T 101.41-102.43.

A second observation is that the fact that a witness cannot recall precise words used, and the specific occasion on which words were used, does not mean that the person’s memory of the substance or “gist” of what was said must be rejected: Gan v Xie [2023] NSWCA 163 at [119] per White JA (Simpson and Basten AJJA agreeing at [126] and [127], respectively). Nor does it mean that the recollection is necessarily unreliable.

A third observation is that there were reasons which arguably make explicable the plaintiff’s lack of response. In this regard it is appropriate to cite a few examples of the evidence and refer also to Mr Birtles submissions on the lack of response criticism.

In the mistake criticism example cited above (when the plaintiff, Stuart and Jim were spraying woody weeds along Carowiry Creek on lot (d)), the plaintiff gave evidence that Jim made a statement:

Ms Fendekian probed the plaintiff about this: T 107.28-109.40. The cross-examination was in part (T 109.24-40):

Ms Fendekian expressed (non-verbally) some incredulity regarding the plaintiff’s lack of response.

The plaintiff was also non-responsive to Jim’s statement regarding the closing of the Dingadee Dairy (T 115.40-41).

A related example included a conversation between the plaintiff and the deceased wherein the deceased made a statement to which there was no direct response. The plaintiff recounted a statement by the deceased, made in December 2008, that “[t]he leased areas will be yours”: CB 111[184]. He was cross-examined about this, which relevantly included the following (T 131.19-41):

Ms Fendekian, whilst accepting that the plaintiff’s lack of response might to some extent be explained by his personality, doubted that explanation and indicated that the plaintiff was capable of animated response on occasions (referencing his response to the postdoctoral fellowship opportunity: CB 87[39]). She thus intimated that the plaintiff’s lack of response to statements by the deceased had some explanation other than a conservative personality, namely a lack of true recollection: T 427.46-428.35.

Mr Birtles had a number of responses to the lack of response criticism.

First, Mr Birtles submitted that the important parts of the conversations were what was communicated to the plaintiff; what he said back (if anything) was less important to him. He contended that the conversations occurred at critical junctures of the plaintiff’s life, when he was making decisions about what he should do with his education, his career and living arrangements, and he remembered those conversations because they were important to him: T 404.35-41, 405.3-6.

Secondly, Mr Birtles submitted, in response to a query from me, that part of the relationship between the parents and the sons is that the plaintiff and the defendant did what they were told to do. He submitted that the defendant had given evidence that he just did what he was told (see e.g. T 270.8, 279.30-31): T 404.44-405.2.

Thirdly, in response to another query by me, Mr Birtles accepted that it may simply have been part of the plaintiff’s personality: T 405.8-10.

Human relationships are extraordinarily varied. The dynamic of any interaction between two people will be influenced by many factors, including personality, upbringing, the nature of any occasion and the presence or absence of others. Accepting that there are some social or relational norms which might inform and explain how people respond to each other in discussion, it is common experience that there may be many reasons why people do not respond to matters that are said.

A classic example in the realm of farming proprietary estoppel cases is the decision of Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776 (Thorner v Major). In that case, the claimant, Mr Thorner, was a Somerset farmer who, for nearly 30 years, did substantial work without pay on the farm of his father’s cousin, the deceased. The primary judge found that, from 1990 until his death in 2005, the deceased encouraged the claimant to believe that he would inherit the farm and that the claimant acted in reliance upon this assurance. On appeal the decision was overturned. On further appeal to the House of Lords the decision was reinstated.

The appeal to the House of Lords focused upon various issues. However, one of the issues was the requirement of certainty in the promise said to found the estoppel.

Lord Hoffmann observed a distinctive feature of the case, as had been remarked in the Court of Appeal, was that the representation of inheritance was never made expressly but was “a matter of implication and inference from indirect statements and conduct”, commenting at [2]:

The fact that the deceased had actually intended the claimant to inherit the farm was irrelevant. The question was whether his words and acts would reasonably have conveyed to the claimant an assurance that he would do so. The fact that the deceased spoke in oblique and allusive terms did not matter if it was reasonable for the claimant, given his knowledge of the deceased and the background circumstances, to have understood him to mean not merely that his present intention was to leave the claimant the farm but that he definitely would do so: Thorner v Major at [3] per Lord Hoffmann. Indeed, it was noted that there was a close and ongoing daily relationship between the parties: Thorner v Major at [8].

The deceased was described as taciturn and in the habit of saying very little, and when he did, it was by oblique remarks. Even though clear and unequivocal statements played little or no part in communications between the two men, they were well able to understand one another: Thorner v Major at [23]-[24], [26] per Lord Rodger of Earlsferry. The primary judge had received significant evidence that they were taciturn and undemonstrative men: Thorner v Major at [59] per Lord Walker of Gestingthorpe, [80] per Lord Neuberger of Abbotsbury.

In this case, a particular aspect of how the plaintiff presented in giving evidence was that, at times, (in my assessment) his evidence appeared somewhat (though not completely) devoid of emotion with flat affect. However, I did not perceive that as necessarily being untoward. I suspect that part of how the plaintiff presented was at least explicable by personality. He struck me at times as being reserved, task focused and very ordered in thinking. When asked about his achievements, he was self-effacing (T 153.39-44):

Particularly in light of the defendant’s indication that, at least for his part, he just did what he was told, I did not consider that it was necessarily unusual that the plaintiff would not respond, or not directly respond, to his parents in a particular way.

Ms Fendekian’s reference to the plaintiff’s animated response to the postdoctoral fellowship opportunity was an isolated incident. The context was different. He was speaking to his university professor, not to his parents.

In assessing the plaintiff’s evidence about conversations with his parents, and Ms Fendekian’s criticisms of the plaintiff’s recollection, I’m mindful of the fact that there are other witnesses whose evidence bears upon the likelihood of the promises being made.

As I note below, the defendant himself was “very much aware of” the plaintiff’s inheritance expectations. Each of Andrew and Stuart also deposed to conversations with the deceased in which she indicated intentions to gift the plaintiff property, in particular the leased lots.

Leaving aside submissions as to reliance and “countervailing benefits”, there was no real dispute that the plaintiff had forgone opportunities to study medicine at Sydney University and to do postdoctoral work at Florida State University.

There was also no real dispute that the plaintiff had done some degree of maintenance work on the leased lots. Indeed, the defendant’s position was not so much that he had not done work, but rather that he did not have authority to do it.

I make further comments on the plaintiff’s evidence below. However, I generally regarded him as a truthful and substantially reliable witness.

Stuart was cross-examined for a little over an hour on the morning of the fourth day of the hearing. Like his brother Andrew, Stuart impressed me as a careful, thoughtful and reliable witness. Ms Fendekian put to him generally that his recollection of conversations deposed to in his affidavit did not occur in the terms to which he deposed. He rejected that contention: T 235. She then tested Stuart in detail on the conversations: T 235-252.

In closing, Mr Birtles submitted that Stuart had a good recollection of the matters about which he was cross-examined: T 404.12-13.

Ms Fendekian advanced, meanwhile, that Stuart’s evidence of alleged events and conversations from many years ago, particularly as to the content and location of conversations, should also be approached with caution. She cited examples from the 1990s, three months after Jim’s death in 2005, 2008, 2010, 2014 and 2020: DCS [35]-[36]. I accept that caution is required. Nonetheless, I am persuaded that his recollection was substantially correct in all material respects.

Ms Fendekian cited a conversation that Stuart had with the deceased in 2009 (at CB 185[30]) as an example of him downplaying the deceased’s financial literacy. She referred to instances of statements by Mr Gowing, Mr Doyle, Mr Moxey and the defendant to refute any suggestion that the deceased was not capable of managing her own financial affairs: DCS [37]. The example does not cause me to doubt Stuart’s evidence. Stuart was reciting a conversation he had with the deceased regarding investments and a share buyback. He was not asserting that she lacked ability to manage her own financial affairs. An ability to manage one’s own financial affairs does not mean that one understands or seeks to understand details about the niceties of certain investments. None of the examples given by Ms Fendekian demonstrates precisely the deceased’s understanding of financial investments, as distinct from her ability to give instructions, which I do not doubt.

Andrew was cross-examined for close to 40 minutes. He presented as an impressive witness, being both measured and reliable in giving his evidence. I will say more below regarding certain parts of his evidence on which he was tested. I unreservedly accept his evidence.

For like reason with Stuart, Ms Fendekian posited that Andrew’s evidence should be treated with caution. She cited various examples of his evidence recalling events from many years ago, including giving assistance to his father in the mid-90s, a conversation with Jim at age 15, and conversations with the deceased in late 2005 and 2011: DCS [38]-[39].

Mr Birtles submitted that it is clear from Andrew’s evidence that he had a vivid recollection of the evidence about which he was cross-examined: T 404.10-11. That accords with my impression. Whilst conscious of the need for caution, I am satisfied that Andrew’s evidence was reliable in its material respects.

The defendant presented as an entirely different character to the plaintiff.

On occasion, he volunteered information without being questioned about it: e.g. T 273.35-274.22. He also volunteered information that was non-responsive to questions, or at least he diverted readily to providing other unrelated information: T 279.25-41, 280.30-46.

The defendant volunteered on occasion that he just did what he was told (by his parents) and had no choice: T 270.9-14; 279.30-31.

There were certain aspects of the defendant’s evidence which I accepted, such as in relation to the beef cattle operation which I refer to below.

Ms Fendekian submitted that the defendant gave his evidence with candour: DCS [43]. It is correct that the defendant’s evidence was given forthrightly. Candour usually connotes honesty and sincerity. However, there were aspects of the defendant’s evidence that did not have that hallmark and which I do not accept.

The defendant asserted that the plaintiff’s relationship with the deceased was strained, stating (CB 267[62]):

I do not accept the defendant’s evidence that the deceased made the above statements. No other evidence in the proceedings gave cogent support to a finding that the deceased would likely have said such things about the plaintiff.

Interestingly, in parts of his evidence, the defendant did not deny that the plaintiff had inheritance expectations. When examined about the plaintiff’s building of a house on lot (c), he stated (T 268.14-19):

The defendant then gave the following evidence that was curious (T 268.22-32):

Later on, the defendant was cross-examined about his relationship with the plaintiff, as well as the relationship between the plaintiff and his family and the deceased, as follows (T 283.29-43):

When cross-examined further about the statements that the defendant alleged the deceased had said, he continued in the same vein (T 285.5-39):

The last response was said in a tone of rancour.

A little later, after questioning about the 2006 Will, the following exchange occurred (T 286.48-287.3):

The last response was said in a tone of barely controlled hostility.

The defendant then became unnecessarily argumentative, to the point where I asked him to confine himself to answering the questions (T 287.12-42):

Then, towards the end of the cross-examination when the defendant was questioned about Mr Gowing’s contact with himself and the deceased about giving him information on the title details of the deceased’s properties, the following exchange occurred (T 291.49-292.9):

The defendant was clearly embittered towards the plaintiff.

Whilst Ms Fendekian sought in submissions to neutralise Mr Birtle’s criticisms of the defendant (at DCS [44], PCS [23], respectively), I find that the defendant’s evidence was tarnished in the above respects and influenced by his views of the plaintiff. He was argumentative and volunteered information not directly responsive to some questions in the respects I have indicated above. To the extent that there is conflict in the evidence as between the plaintiff and the defendant, unless indicated otherwise, I prefer the evidence of the plaintiff.

The defendant was not asked what he meant by the plaintiff “was going to be a threat”. Nor did he elaborate on it. Nonetheless, it is particularly strong language for the defendant to have used. Whatever the defendant might have thought about the plaintiff’s actions or conduct, there is not a skerrick of a suggestion in any of the evidence that the deceased regarded the plaintiff as, or had any expectation that he would be, a “threat”. To the extent that the defendant suggested that the deceased thought that was the case, I reject the defendant’s evidence.

Further, the notion that the plaintiff’s relationship was strained with Jim or the deceased is unsupported by any other witness.

I reject the defendant’s evidence otherwise. Having watched the plaintiff being cross-examined across three days, I did not gain the impression that the plaintiff was given over to threatening comments or conduct. My impression was otherwise. Ironically, out of the two parties, it was the defendant (who was cross-examined for much less time, being just under two hours), rather than the plaintiff, who exhibited the antipathy set out above.

The defendant does not dispute that the plaintiff performed maintenance work on all of the leased lots. Rather, his evidence was that the plaintiff was not authorised to do it: T 282.40-50. Specifically, he alleged that the deceased “didn’t give the okay” and that “[t]he first time she knew of it was when he did it”: T 283.4-6. The defendant elaborated further, asserting that the clearing work that the plaintiff did was not checked with the people who leased the properties: T 283.14-27.

It is true that there is no specific evidence by the plaintiff of any conversation with the deceased by which he said he was about to start maintenance work on the leased lots. However, I accept the plaintiff’s evidence that the discussions he did have with the deceased, informing her of work he had done, were not met by the deceased with anything other than ratification and encouragement for the plaintiff to continue such work. I also accept that the work carried out by him in April 2020 on lots (h), (j) and (k) was authorised by the deceased (who paid for the herbicide and diesel fuel used in conducting that work) and reject the defendant’s assertion otherwise: CB 116[208], 135[53], 279[134].

Mr Gowing was cross-examined on the fourth and fifth days of the hearing (T 296-310, 313-336). He gave his evidence in a clear and sometimes forceful manner. He had a habit of answering some questions instantaneously as the questions from Mr Birtles were completed, almost without “drawing breath”. However, I do not regard that as in any way affecting his credit or reliability.

Ms Fendekian noted that Mr Gowing directly acknowledged, both in his affidavit evidence and under cross-examination, the matters in respect of which he had an actual recollection and the areas in relation to which he did not: DCS [45].

Ms Fendekian contended that to the extent that his evidence was a reconstruction prompted by reliable, contemporaneous and complete documentary material, that course was logical and unobjectionable: DCS [45]-[46], [48], citing Hodgson CJ in Eq (as his Honour then was) in Lindsay-Owen v Lake [2000] NSWSC 1046 at [3] (in a statement approved by Lindgren J in Whittaker v Child Support Registrar [2010] FCA 43 at [338]), and Kaplan v State of Victoria (No 8) [2023] FCA 1092 at [1112] per Mortimer CJ. Whilst the proposition is undoubted, the contention of Mr Birtles was that the source of Mr Gowing’s reconstruction was based upon incomplete, rather than complete, materials.

Mr Birtles did not submit that Mr Gowing lacked credit in the sense of being dishonest. Rather, he submitted that he had very little recollection: T 399.

I address below particular aspects of Mr Gowing’s evidence regarding the deceased’s process of making her last Will.

Mr Doyle presented as a witness who was attempting to give the best of his recollection. In his affidavit, he indicated that he did not have a detailed recollection of his conversations with the deceased, although was able to recall some conversations with her: CB 234[18].

Mr Birtles did not submit that Mr Doyle lacked credit in the sense of being dishonest. Rather, he submitted that, in relation to maps and diagrams supposedly shown to the deceased for the purposes of making her last Will, Mr Doyle had a “false memory”: T 399.37.

I accept Mr Doyle as a truthful witness. I address below particular aspects of his evidence regarding the deceased’s process of making her last Will.

Mr Addison was cross-examined regarding his affidavit evidence of a conversation which he had with Jim in which Jim said that the plaintiff would end up with property and that the defendant would not be able to buy Dingadee. Mr Addison indicated in cross-examination that he understood Jim was suggesting that the plaintiff might take over the dairy business at Dingadee, and that he had some concern about whether the defendant would have the capacity to purchase Dingadee: T 178. When pressed about why Jim had expressed that concern, Mr Addison indicated as follows (T 178.30-47):

Mr Addison confirmed that, prior to Jim’s death, all instructions to him and his firm came from Jim, they never received instructions directly from the deceased and she was never in attendance when Jim provided instructions: T 180. Mr Addison gave his evidence in a relatively clear and uncomplicated way. I accept his evidence.

Mr Shepherd had given evidence in his affidavit that, during the time that he had worked for Jim and the deceased, they had two separate farming operations, being Kennilworth and Dingadee: CB 179[19]. The only point on which Mr Shepherd was cross-examined was to clarify that his reference to “two separate farming operations” was a reference to the dairy businesses that they had on each of those parts of the farm, which he confirmed. Mr Shepherd added, in response to a further question, that it was usual that cows from Kennilworth Dairy would graze on the land north of Stroud Hill Road: T 184. Precisely what was meant by that was not further clarified. However, I note that a small part of the lots falling within the description of the Kennilworth lots, being part of lot (o) together with lot (m), lies north of Stroud Hill Road. I accept his evidence.

Mr Armstrong gave evidence which was effectively limited to the period from 1970 to 1974 when, on two or three occasions, he attended the family farm for approximately two to three weeks each time during university holidays. Recalling those occasions, Mr Armstrong made several observations, including that he did not recall the defendant assisting in the dairy or milking the cows during the periods that he stayed there: CB 204[14]. He accepted that the events were some 50 years ago and that his observation might be a poor memory: T 186. Whilst I do not doubt Mr Armstrong’s evidence, I consider it of little assistance to me in determining the critical issues in the proceedings in light of the other evidence.

Ms Hewitt was cross-examined regarding a conversation she recalled having with the deceased and her mother regarding the deceased’s testamentary intentions. She presented as a reliable witness and I accept her evidence, which I refer to below.

Mr Dillon was cross-examined regarding his identification of the lots in respect of which the deceased had given him instructions. Subject to the concessions that I have outlined below dealing with the descriptions issue, I accept Mr Dillon’s evidence.

Ms Irwin was cross-examined regarding “Dingadee Cottage” for barely two minutes. She confirmed her affidavit evidence. I accept her evidence.

Mr McMahon clarified in cross-examination that most of his dealings with Jim and the deceased were with Jim. In Mr McMahon’s words, Jim was the “prime mover” in respect of most of the dealings he had, but when it came to signing contracts and the like the deceased came in and attended upon him for that purpose. He indicated that, prior to Jim’s death, he had not ever separately taken instructions from the deceased in relation to the matters in which he acted for them. His instructions in the first instance came from Jim and then from both of them when the occasion arose: T 201–202. The one qualification to that was when Mr McMahon received instructions solely from the deceased in relation to a matter concerning a car accident in which she had been involved: T 202.

Mr McMahon gave his evidence in a clear and straightforward way. I accept his evidence.

Angela was cross-examined principally in relation to the descriptions issue. The cross-examination was brief: T 209-211. She impressed me as a careful and reliable witness. I accept her evidence.

Mr Moxey was briefly cross-examined regarding the agistment of part of the Dingadee lots to the Moxeys. He was unable to identify by reference to MFI-2 which lots were agisted, it being a personal arrangement between the Moxeys and the deceased. He did not know whether there was a written document recording the terms of the agistment or for how long the land was agisted, though thought it was for approximately five to six years: T 368. He clarified, in relation to his evidence that the defendant assisted the deceased in managing the “property”, that he was referring to the defendant’s assistance with respect to the Kennilworth property where the deceased lived: T 369. I accept his evidence.

There was a myriad of evidence regarding the description of the various lots in the disputed land. Some of the references to that evidence is captured in the “nickname” column in MFI-2.

The plaintiff gave evidence that the cottage located on lot (h) was referred to by his parents as “Dingadee Cottage”, essentially from the time of purchase at least up until the deceased advertised the cottage for rent in 2001: CB 101[129], 104[142]-105[148].

The plaintiff indicated that at the entrance to lots (g), (h) and (i), the street address being XX Monkerai Road, there is a sign which originally read “DINGADEE” and had been in place when his parents purchased the three lots in 1993. Subsequently the sign was broken, with the remnants of the sign simply showing “GADEE” (see photographs taken on 15 September 2022: CB 1178-1180): CB 132[40].

The plaintiff gave evidence that harked back to the 1950s and 60s, when he heard his mother spell Kennilworth with two ‘n’s: CB 118[223]-119[225].

Stuart was tested by Ms Fendekian in relation to the spelling of Kennilworth and he disputed that his grandparents spelt it with one ‘n’: T 252.

The defendant, meanwhile, gave affidavit evidence that, to the best of his knowledge, Kennilworth has always been spelt with one ‘n’, and the original spelling of Kennilworth with two ‘n’s was “originally a joke that my father Jim and myself played on Gloria”: CB 279[138]. He further denied that the deceased ever thought that the spelling of the Kennilworth sign into the property (i.e. at the entrance of Kennilworth) was misspelt, and said that she had never said anything to him about this or suggested that the sign should be changed: CB 279[139] (responding to CB 119[225] rather than, as stated in his affidavit, to CB 118[223]). The defendant referred to a company search for the company and the deceased’s driver’s licence, which both spell Kennilworth with one ‘n’: CB 279-280[139], 988, 1154.

In cross-examination, the defendant initially disputed that the correct spelling of Kennilworth was with two ‘n’s: T 265.17-18. However, he has an email address with Kennilworth spelt with two ‘n’s. Also, his attempts at explaining that a sign he had put up in front of the deceased’s homestead, which spelt Kennilworth with two ‘n’s, was done “as a bit of a laugh” seemed strained and unconvincing, as did his evidence which suggested that if he had to spell Kennilworth on a form to submit to a government instrumentality, he would probably spell it one way or the other: T 264-265.

The plaintiff stated that he had never heard his parents refer to the properties on the north side of Stroud Hill Road as “Yates” and that they always referred to those properties as “Dingadee”: CB 134[47].

In relation to the defendant’s assertion regarding the conversation with the deceased in which she proposed to call the Dingadee Dairy lot “Dinga Dee”, the plaintiff indicated that the deceased had never spoken to him about that and he had never seen any document where it was spelt with two words (other than the last Will): CB 136[57].

Mr Dillon, who purchased a property known as “West Dingadee” approximately 36 years ago (prior to the hearing, as distinct from the date of his affidavit) and had been a resident of the area since 1965 and worked in the Dingadee district as a real estate agent and licenced stock and station agent for over 42 years, indicated that he had never seen, in any document, the land or any property in the area described as “Dinga Dee” (with two words): CB 171[12].

In relation to lot (d), Mr Dillon stated in his affidavit that the lot was part of “Yates’ paddock”: CB 173[24]. However, it was suggested to Mr Dillon that rather than that lot being “Yates’ paddock”, it was in fact a property purchased from Ross Haggarty. Initially he did not think he was mistaken, however, after having been shown MFI-2, he accepted that as being correct: T 192-194. In relation to lots (c) (now owned by the plaintiff) and (b), Mr Dillon had described those in his affidavit as being “Russell’s paddocks”. Relevantly, it appeared that he understood that Russell owned lot (b), which, subject to the terms of the last Will, is not the case.

Ms Fendekian submitted that Mr Dillon reluctantly conceded that he did not know whether the plaintiff was in fact the current legal owner of those particular lots: DCS [41]. He did not concede that his evidence was mistaken. However, this was not a reason to cause me to doubt his evidence. His evidence was simply that the deceased described the two lots as being “Russell’s paddocks” (CB 173[24]). His affidavit evidence did not address legal ownership as distinct from a description by the deceased. He assumed, when asked as to why the deceased would have referred to those lots as being “Russell’s paddocks”, that it was because the paddocks were side-by-side: T 194.50.

Mr Dillon was also cross-examined regarding the areas that he had marked on a map (CB 173[28], 1140) as being all of the deceased’s property north of Stroud Hill Road. He had indicated that the deceased referred to each of those areas as “Dingadee”, although, when questioned further, accepted that occasionally she had called the paddocks other names as well: T 195-196. In re-examination, Mr Dillon indicated that, in relation to an answer that the last sentence in paragraph 28 of his affidavit was not strictly correct (that the deceased referred to each of the areas as “Dingadee”), he meant that the deceased referred to those paddocks to him as part of the Dingadee paddocks but on occasions she had called one particular paddock “Yates’”: T 196.

Angela gave evidence in relation to her involvement with the deceased, particularly in her younger years. She assisted the deceased to clean the cottage (identified as being on lot (h)) which she described as “Dingadee Cottage”, and indicated that she had had no less than 50 conversations with the deceased in which the deceased referred to that cottage as “Dingadee Cottage” and had never heard the deceased refer to it as “Yates Cottage”. She also indicated that the defendant referred to the cottage as “Dingadee cottage” and did not ever hear the defendant refer to the cottage as “Yates cottage”: CB 200[14]. In cross-examination, she indicated that everyone in her family referred to the cottage as “Dingadee Cottage”, and that she had never heard the deceased refer to it as anything other than “Dingadee Cottage”: T 211. She had also never heard the deceased refer to parts of the property as “Yates”: T 211. Angela was also asked about the spelling of “Kennilworth” and confirmed that she had always seen it spelt with two ‘n’s: T 210. I accept her evidence.

Ms Irwin gave evidence that, in the mid to late 1990s, she had many discussions with the deceased in relation to the cottage located on lot (h), which she indicated the deceased referred to as “Dingadee Cottage”: CB 190[7]-[8].

She indicated that she had had at least 20 to 30 conversations with the deceased in which she referred to the cottage in that manner and had never heard the deceased call it anything other than “Dingadee Cottage”. In particular, Ms Irwin had never heard the deceased call the cottage “Yates Cottage”, nor refer to the land which was purchased from Bert Yates as “Yates”: CB 191[11]-[12]. Ms Irwin was briefly cross-examined by Ms Fendekian: T 198-199. She confirmed her affidavit evidence. I accept her evidence.

Andrew indicated that in his family he had never heard areas of land being referred to by lots or DP numbers. Rather, it was always by landmark or property name: T 213. He disputed that lots were mentioned by reference to the persons from whom they had been acquired and never heard the properties referred to as “Yates’”, for example: T 213.

Andrew was also questioned and tested by Ms Fendekian regarding the conversation which, he said, occurred with the deceased in about 2011 on the Kennilworth property: CB 154-155[27]-[28]; T 218-220. It was suggested to Andrew that the deceased might have misunderstood his comment about building “a house down here eventually” (being on the Kennilworth property). He disputed that suggestion, indicating that he had been pointing to the ridge slightly past where the deceased lived, as they were standing in her eastern garden at the time: T 219. Andrew indicated that he understood the deceased’s comment in reference to “the other side of the road” (being Stroud Hill Road) as referring to the “Dingadee property”: T 220. I accept his evidence.

To Stuart’s understanding, Jim and the deceased referred to “Kennilworth” and “Dingadee” as separate farms. He noted that there was a Kennilworth herd of cattle and a separate Dingadee herd of cattle: CB 183[11], 1134 (limited to his understanding).

Stuart indicated that the cottage on lot (h) was always referred to by the deceased as “Dingadee Cottage”: CB 183[13].

Andrew was also questioned regarding the spelling of “Kennilworth”. He confirmed that he usually saw it spelt with two ‘n’s, and the only time that he saw it spelt with one ‘n’ was by reference to a sign on Majors Creek Road: T 221.

Mr McMahon, whilst acknowledging that there were not many occasions where he was required to receive instructions directly from the deceased, agreed with the suggestion in cross-examination that, if the deceased wished to refer to parcels of land within her property, she would sometimes refer to them by reference to the name of the previous owner of the land from whom they had been acquired: T 203.

Mr Addison had marked on a map (CB 144[19], 1133) an area which he identified as being owned by Jim and the deceased and which they referred to as “Dingadee”, being essentially the area which comprised what I have earlier described as being the leased lots. I say “essentially” because the marking on the map is a little ambiguous as to whether part of lot (o), which is north of Stroud Hill Road, falls within or outside of his marking. In any event, when challenged as to whether he really meant that the marked area was what Jim referred to as “Dingadee”, Mr Addison initially asserted that that was not the case and that the whole family referred to it as “Dingadee”. However, he then qualified that by indicating that he could not say what the defendant had called the area: T 180. When pressed as to whether the deceased referred to the area as “Dingadee”, Mr Addison confirmed that he had heard her refer to it as “Dingadee”, at least on occasions when she had come into the office, but not, as indicated above, in the context of her giving any formal instructions: T 180-181.

In relation to the spelling of “Kennilworth”, Ms Fendekian cross-examined a number of the witnesses in relation to documentary material which shows the spelling of “Kennilworth” with one ‘n’. That material included:

Different witnesses generally had different experiences in relation to how the deceased referred to particular parcels of land.

I reject the defendant’s evidence that, in or around 2010, the deceased decided to describe lot (a) as “Dinga Dee”. There is no evidence corroborating that. Both the plaintiff and Mr Dillon had never seen in any document the land or any property in the area described that way.

I find that the deceased referred to lots (g), (h), and (i) as both “Dingadee” and, at least occasionally, “Yates”.

Overall, I am persuaded that the deceased predominantly referred to the cottage on lot (h) as “Dingadee Cottage”, although I accept that there may have been some occasions on which she referred to the cottage as being “Yates Cottage”.

The relevance of the description of property focuses upon how the deceased described her property and, in particular, how she described it for the purposes of instructions given for her last Will.

Ultimately, I am not satisfied that the deceased had such a fixed dictionary of phraseology that would lead to the unimpeachable outcome that the deceased’s use of the word “Dingadee” would necessarily imply a reference to the (10) Dingadee lots, relevantly, for the purposes of her last Will.

The spelling of “Kennilworth” was more vexed. There was a myriad of evidence bearing upon the spelling of it. Perhaps the most compelling evidence for it being spelt with a single ‘n’ is the deceased’s driver’s licence.

The plaintiff contended that the setting out of the deceased’s address in the last Will being “Kenilworth, Majors Lane, Stroud Road, Dungog” (CB 873) was incorrect, and that the correct address description is “Kennilworth, [XX] Majors Creek North Road, Stroud Hill NSW 2420” (CB 118[222]-[223]).

The defendant was cross-examined about this issue. He asserted that the way that the address had been written in the last Will was a “version” of it, but appeared to accept that if the deceased was asked to state her address she would state it as being “[XX] Majors Creek North Road, Stroud Hill”: T 263.1-.37.

Ultimately, it does not really matter. No case for rectification was advanced in respect of the spelling of “Kennilworth” in the last Will. Neither Mr Gowing nor Mr Doyle gave evidence regarding the deceased’s spelling of “Kennilworth” in her instructions for the last Will. Thus, even if the deceased had a preference for spelling “Kennilworth” with two ‘n’s, it is not a matter in respect of which I need to make a finding.

On 8 March 2005, approximately a month after Jim’s death, Mr McMahon had a conference with the deceased during which he took some preliminary instructions from her regarding making a new Will: CB 590–591.

It is evident that, at the time of that conference, Mr McMahon had advised the deceased in relation to the matters that needed to be attended to in order to obtain probate of Jim’s Will. In particular, he had a conversation with her in which he asked whether she knew which land titles were in Jim’s own name. She replied “[n]o, I wouldn’t know that” and, to assist in establishing title to the land, Mr McMahon indicated that he would work on the basis of some title deeds held in his firm and at the bank, and requested the deceased to bring in some council rate notices: T 200.

Mr McMahon confirmed in cross-examination that, on that occasion, the deceased seemed unprepared to make a final decision about how she wanted to dispose of her estate. Accordingly, he suggested to her that, if she was not ready to make a final decision then, she might consider doing what he described as a “holding pattern will” leaving half of her estate (or perhaps her property) to each of the plaintiff and the defendant. However, the deceased did not wish to make a Will at that time and so that avenue was not progressed: T 206.45–207.8.

Following the conference on 8 March 2005, Mr McMahon had a telephone conversation with the deceased on 8 April 2005: CB 164[38], 593–594. At that stage, she had not yet spoken to the plaintiff and the defendant in relation to her Will.

Mr McMahon subsequently made enquiries with Westpac and Dungog Shire Council to ascertain all of the landholdings of Jim and the deceased by reference to lot and DP numbers. The deceased did not provide instructions to him by reference to lot and DP numbers other than in the form of the rate notices (which it appears she did provide).

In January 2006, Mr McMahon received instructions from the deceased in relation to her Will (being the 2006 Will): CB 164[44].

On 9 February 2006, it appears that the deceased attended upon Mr McMahon to sign the 2006 Will. Although Mr McMahon does not have a signed copy of the 2006 Will, the draft that he retained on his computer is, he indicates, consistent with the instructions received from the deceased and recorded in his handwritten file notes: CB 166[55]-[57].

In June 2009, the deceased, apparently on a recommendation by Mr Badgery, contacted Mr Gowing and inquired whether he would be willing to take on her accounting work which, at that stage, involved some issues regarding dairy industry deregulation compensation: CB 244[4].

Mr Gowing first met the deceased and the defendant on 24 June 2009, at which point he was asked to assume responsibility for the deceased’s accounting work: T 296.

On 25 June 2009, Mr Gowing provided the deceased with a form of retainer letter (CB 753-755), which she subsequently signed.

From the time of his engagement up until the deceased’s death, Mr Gowing advised and assisted her by preparing financial statements and tax returns.

One of Mr Gowing’s first tasks was information gathering: T 296. In the context of Mr Gowing taking on the work, he sought to get an understanding of details of the properties which the deceased and Jim had purchased, including the dates of purchase and purchase price, to assist him in advising in relation to capital gains tax.

It appears that, initially, the deceased was unable to give Mr Gowing particular details about those matters.

In December 2009, Mr Gowing wrote to the deceased’s then solicitor, Felix Prentice from WJ Enright & Prentice (which law practice had encompassed or subsumed the firm McMahon & McMahon) of Dungog: CB 245[9]. Mr McMahon had acted for Jim and the deceased in relation to various matters and, in particular, in relation to the purchase of property in the period from the late 1970s until 2006: CB 161[20]. Mr McMahon acknowledged that most of his dealings were with Jim: CB 161[20].

Mr Gowing also sought to obtain information from the deceased’s previous accountant, Addisons, in relation to dairy deregulation (CB 245[10]) and, as I understand it, also in relation to the purchase of the lots which form part of the deceased’s estate.

On 2 March 2010, Mr Prentice sent to Mr Gowing a valuation report that had been prepared by Mr Brorson in respect of four lots: CB 245[11], 803, 575-587. The valuation had been prepared for assessing the fair market value of properties said to form part of the “Kennilworth” agricultural holding (CB 822) as at the date of Jim’s death on 4 February 2005. The valuation was in respect of lots (k), (p) and (v) being three of the above-mentioned 11 Kennilworth lots. Another lot bearing title reference D/XXXXXX, said to be part of the Kennilworth agricultural holding, was included as part of that valuation. That particular lot appears to be identifiable as being lot (q): see CB 575, 577, 1112, 1268 (having an area of 86.45 ha).

On 3 March 2010, Mr Gowing emailed the valuation to the deceased for her information, noting that it would help in identifying the properties but not with the cost base at the time of purchase: CB 245[12], 831.

In March 2010, there was subsequent correspondence by Mr Gowing with various persons in which he lamented that he only had a very limited picture of the deceased’s landholdings. The deceased had told him that the aggregate area of her landholdings was close to 2000 acres, however he only appeared to have awareness of a portion of the holdings and was concerned as to how he could adequately deal with CGT issues: e.g. CB 834.

On 12 March 2010, there was also an initial conversation between Mr Gowing and the deceased (without Mr Doyle) about “the benefits of a testamentary trust”: T304.1-12, 315.42-43.

There was serious dispute at the hearing as to what occurred in relation to the so-called “instructions conference” (or instructions meeting) for the last Will. Each of Mr Birtles and Ms Fendekian set out a timeline of events surrounding the instructions of the last Will, including in respect of the provision and annotation of maps bearing upon the instructions.

In or about June 2010, Mr Doyle was contacted by Mr Gowing to prepare a Will for the deceased. He had not previously met her: CB 233[7]. Mr Doyle opened a file to prepare the Will and a power of attorney, however, due to the computer system of his firm being hacked in March 2019, the electronic version of the file was lost. The firm had a practice of destroying the physical file once a digital copy had been made. He was otherwise only able to locate three documents relating to the matter, being two letters and an invoice each dated 27 October 2010: CB 233-234[9]-[11].

On 22 June 2010, Mr Gowing received an email from Mr Brorson attaching the North map and the South map with colour, lines and cross-hatching (at CB 838-839): CB 245[14]. After having received those maps, Mr Gowing arranged for a large number of photocopies to be made and used the photocopies for various purposes in handling the deceased’s affairs (including various compensation claims and other dealings): CB 245[15]; T 305.38-306.14.

On 4 November 2021, Mr Gowing signed a statement comprising seven pages and two annexures being, respectively, colour copies of the North map and South Map and the annotated copies of the South map and North map (4 November 2021 statement): CB 1019-1029. Mr Gowing’s 4 November 2021 statement was in response to a request from the plaintiff’s solicitors, dated 19 October 2021, to provide a copy of the Will file and a statement setting out certain details regarding the making of the last Will.

In the proceedings, Mr Gowing affirmed two affidavits being, respectively, affidavits dated 29 September 2022 (CB 242-256) and 2 November 2022 (CB 301-304).

Relevantly, Mr Gowing stated in his affidavit (CB 250-252):

In cross-examination, Mr Gowing indicated that the notes made on the North map and South map were made by him on an occasion, the timing of which he was not able to say precisely, where he was at the deceased’s home attending upon her at the kitchen table and where only he and the deceased were present: T 307.17-31. When asked again about whether he was quite sure that it was only himself and the deceased present at the conference at which he took the notes, he was not directly responsive (T 308.48-309.1):

However, he was not then pressed on who was present. Whilst Mr Gowing was later asked regarding how many occasions he attended upon the deceased (T 316.1-2), I did not understand Mr Gowing as qualifying his earlier answer that only he and the deceased were present on the initial occasion: T 307.30-31.

Mr Gowing accepted that the purpose of his writing the notes on the maps was so that he had a record of the acquisition date and cost base for future accounting purposes for the lots, being the start of his compilation of information of historical material that he would need: T 308.43-46, 319.40-320.4. However, he disputed that the conference was specifically for the purposes of obtaining information about the historical cost base: T 307.45-50.

When Mr Gowing’s cross-examination resumed the following day (15 September 2023), he gave the following evidence (T 315.22-316.23):

Mr Gowing was also cross-examined about his 4 November 2021 statement. He regarded it as then setting out as fully and completely as possible his recollection of how the title details for the properties in cl 7.3 of the last Will were obtained: T 323.16-19.

In questioning regarding his reference to “my enquiries and advice” from the deceased in paragraph 20 of his 4 November 2021 statement, Mr Gowing said (at T 318.7-18):

The cross-examination probed forms of expression regarding Mr Gowing’s enquiries as used in his 4 November 2021 statement. He said (at T 318.42-319.38):

Further, at paragraph 21 of his 4 November 2021 statement, Mr Gowing stated (CB 1022):

In cross-examination he stated (T 323.42-48):

A little later, Mr Gowing was asked about his independent recollection of the deceased’s instructions to Mr Doyle. He stated (T 325.5-37):

Further, in terms of instructions, Mr Gowing gave the following evidence (T 326.20-38, 327.34-43):

Later, Mr Gowing also gave the following evidence (T 328.33-329.7):

During the course of his cross-examination, Mr Gowing was confronted with an email he sent to Mr Doyle on 28 June 2010 at 7:41pm, attaching the annotated versions of the North map and South map (the 28 June 2010 email): Exhibit P1 pages 25-27. The subject line of the email was “FW: Reeves map with lots identified” and the body of the email stated as follows:

By reference to the 28 June 2010 email, Mr Birtles suggested to Mr Gowing that the maps were not present at the instructions conference between himself, Mr Doyle and the deceased. He denied that as follows (T 329.40-42, 330.46-331.33):

The events regarding the instructions for the last Will took place some time ago. Clearly, Mr Gowing’s recollection of events is not perfect. The general tenor of his evidence is that he had some recollections of clarity but there were other matters in which he was unable to clearly identify dates.

The nature of cross-examination is such that, on occasions, because of the question and answer process, a witness might apparently dispute or concede some point but later qualify the answer.

Mr Gowing’s evidence regarding the annotations on the North map and South map (with the exception of the words “South of Stroud Hill Road” and “North of Stroud Hill Road”, which he believes were written by Mr Brorson), as I understood him, was generally to the effect that the annotations were all written by him on the one occasion from information received from the deceased, orally or with rate notices, with him sitting down with the deceased at the kitchen table and without the defendant being present: T 316.8-34, 317.21-44.

Overall, I consider that, on the balance of probabilities, Mr Gowing relevantly attended upon the deceased on three occasions.

First, on an occasion the date of which he cannot recall, Mr Gowing attended upon the deceased alone at her home at the kitchen table, without Mr Doyle being present, and took instructions regarding the properties. He made annotations on the North map and the South map on that occasion at least, though not exclusively, for assisting him in advising the deceased for tax (in particular, CGT) purposes. Whilst a possibility was raised that Mr Prentice may have provided some information for the North map and South map, I consider that the better view of all of Mr Gowing’s evidence is that the information which he annotated on the North map and the South map was provided, as he says, by the deceased to him on this first occasion.

Secondly, Mr Gowing first attended upon the deceased with Mr Doyle. They drove separately to the deceased’s home. This second conference was referred to during the hearing in a number of ways and I have referred to it above as the “instructions conference” for convenience.

Thirdly, Mr Gowing attended upon the deceased with Mr Doyle for the purposes of executing her last Will.

Mr Birtles submitted that Mr Gowing speculated that the map was present at the instructions conference before agreeing he did not recall: PCS [68]. I reject that submission. I regard the passages I have referred to above (T 329.40-42, 330.46-331.33), in light of his evidence as a whole, as Mr Gowing accepting he has trouble recalling the sequence of events, but being sure that the enlarged A3 copy of the North map and South map were present at the instructions conference between himself, Mr Doyle and the deceased, whenever that conference occurred.

I do not consider that the 28 June 2010 email provides any conclusive basis for finding that the maps were not present.

Mr Birtles suggested to Mr Gowing (in evidence I have extracted above) that it was possible he misinterpreted the information provided to him by the deceased. Whilst Mr Gowing considered that it was “absolutely possible” (T 319.35-38), Mr Birtles did not demonstrate what information on the North map might have been relevantly misinterpreted.

Mr Birtles submitted that the information written on the North map and South map was drawn from several sources, making Mr Gowing’s account of events implausible: PCS [70]. I reject the submission.

In any event, the two properties that are the subject of cl 7.3(a) of the last Will, which are described on the North map as being “Dingadee” and “Neilsons”, are prima facie, on at least on one view, correctly identified by those names. Lot (a) was purchased pre-CGT and was known at least in 1979 as “Dingadee Dairy”. Indeed, the plaintiff pleads that as a fact: CB 6[19]. The fact that the dairy was also operated from other lots does not make the annotation of lot (a) as “Dingadee” necessarily inapt. Further, there is no dispute that lot (b), annotated on the North map as being “Neilsons”, was purchased initially from Ben Neilson in or about 1987 and subdivided: CB 98[102]-[108]. Mr Birtles accepted in submissions that, at times, the deceased referred to lot (b) as “Neilsons”: POS [54(d)]. Thus, its description as “Neilsons” is prima facie correct.

Further, another annotation on the North map, namely, lot (j) as “Bennetts”, is also correct. Mr Birtles accepted that, at times, the deceased referred to lot (b) as “Neilsons”, and lot (j) as “Bennetts”, by separate names, because those lots are in the intermediate area between Stroud Hill Road and the Northern Railway Line: POS [54(d)].

On 24 November 2021, Mr Doyle signed a statement comprising three pages and two annexures AD1 (being a letter to the deceased and a tax invoice, both dated 27 October 2010, and a letter to Mr Gowing also dated 27 October 2010) and AD2 (being a copy of the South map and the North map) (24 November 2021 statement): CB 1044-1051. The statement was prepared in response to a letter from the plaintiff’s solicitors asking him to set out how the title references referred to in cl 7.3 of the last Will were determined: T 340.

In the proceedings, Mr Doyle affirmed two affidavits being, respectively, affidavits dated 28 September 2022 (CB 231-241) and 24 August 2023 (CB 305-308).

Relevantly, Mr Doyle stated in his affidavit (CB 234-236):

Mr Doyle was cross-examined about his 24 November 2021 statement. He accepted that the statement set out as fully and completely as possible the steps taken by him to obtain instructions from the deceased in relation to her last Will: T 341.21-24.

He accepted that he had read Mr Gowing’s 4 November 2021 statement prior to swearing his affidavit in the proceedings: T 343.

In his 24 November 2021 statement, Mr Doyle indicated that Mr Gowing had either produced or given to him prior to the instructions conference a map of the lots owned by the deceased. He could not recall when Mr Gowing had given him the maps (T 344.44-345.2), including whether they had been given to him prior to the meeting or at the meeting: T 346.28-38.

By reference to a copy of the North map (CB 1051), it was suggested to Mr Doyle that if he had reviewed the map with the deceased at the instructions conference, he would have asked the deceased to whom she wished to give lot (e). He indicated that that was not necessarily the case, and readily accepted that he was not familiar with the land north of the railway line: T 348.18-34.

Mr Doyle was asked specifically about Dingadee and Neilsons (the names noted on the North map for the areas in lots (a) and (b), respectively) and gave evidence as follows (T 352.16-28):

Shortly after he stated (T 352.48-353.8):

Then, by reference to the 28 June 2010 email, it was suggested to Mr Doyle that he did not have the North map and South map at the time of the instructions conference, which he disputed. He stated as follows (T 354.38-355.40):

After the luncheon adjournment on 15 September 2023, Mr Doyle was further cross-examined regarding differences between his 24 November 2021 statement and his 28 September 2022 affidavit, particularly regarding whether the map was produced at the meeting or whether he had no recollection of it: T 357-358.

It was further put to Mr Doyle that no information on the annotated North map and South map appears to have been used in the last Will. He disagreed with that as follows (T 359.27-38):

The cross-examination continued a little later as follows (T 360.3-42):

Whilst I accept that Mr Doyle cannot precisely recall whether the North map and South map were produced for the first time at the instructions conference or whether he had received them earlier, I accept his evidence that the North map and South map were present at the instructions conference.

I accept Mr Doyles’ evidence that the provision of the maps as an attachment to the 28 June 2010 email does not necessarily mean that he did not have the North map and South map at the time of the instructions conference. I accept that a plausible possibility is that they were provided to him as an aide memoire to assist with the actual identification of the lot numbers.

I further accept Mr Doyle’s evidence that he identified the lots for the purposes of cl 7.3(a) of the deceased’s last Will by reference to the fact that the deceased pointed to the lots on the North map.

On 22 October 2010, Mr Doyle and Mr Gowing each drove separately to Dungog and met with the deceased again. At this meeting, Mr Doyle explained the deceased’s Will to her and it was signed: CB 253[50]-[60], 237-238[40]-[49]. Mr Gowing made a file note of that meeting: CB 303[2], 304[7], 896-897.

Relevantly, Mr Gowing stated in his affidavit (CB 253-254):

Mr Gowing made a file note of the attendance, a colour version of which appears in the Court book (CB 897). It includes the following entry in handwriting:

Mr Gowing was cross-examined regarding the attendance. Relevantly, he gave the following evidence regarding cl 7.3(a) (T 336.3-26):

Relevantly, Mr Doyle stated in his 28 September 2022 affidavit (CB 238):

Mr Doyle was cross-examined about the occasion when the deceased’s last Will was signed and, in particular, whether he read out cl 7.3. His evidence was as follows (T 362.4-363.1):

Mr Doyle did not have the North map and South map at the time of the deceased executing the last Will: T 363.3-23.

In relation to the limiting of the gifts to specific lots, Mr Doyle was cross-examined as follows (T 363.25-44):

I am satisfied that Mr Doyle read out the entirety of cl 7.3(a) of the last Will to the deceased and, in particular, referred to the lot numbers.

Mr Birtles accepted that the construction case was a difficult case to make out without rectification: T 7.1-2.

Mr Birtles submitted that there is a theoretical question as to whether the claims for construction or rectification should be determined first: PCS [49]. Ms Fendekian submitted that the plaintiff (by Mr Birtles) was impermissibly conflating his construction and rectification case: DCS [74].

The Court has an inherent jurisdiction to regulate its own proceedings so as to promote matters relating to convenience, expedition and efficiency in the administration of justice, which includes directing or ordering the parties to use certain procedures, if the benefits derived from the use of such procedures justifies the costs and will ensure that the trial proceeds quickly and efficiently: Idoport Pty Ltd v National Australia Bank Ltd (2000) 49 NSWLR 51; [2000] NSWSC 338 (Idoport) at [15] per Einstein J.

In New South Wales, statutory reform commencing on 1 March 2000 provided an overriding purpose into rules of Court to facilitate the just, quick and cheap resolution of the real issues in proceedings, and the Court was directed to give effect to the overriding purpose when it exercises any power given to it by the rules or when interpreting any rule: see Pt 1 r 3(1), (2) Supreme Court Rules 1970 (NSW) (now repealed), which came into effect by means of Supreme Court Rules (Amendment No. 337) 1999 (NSW) at [8(a)], [9]; see also Idoport at [14]-[36]. This was the precursor to the civil reforms introduced in 2005 with the Civil Procedure Act 2005 (NSW) (CPA), s 56(1), (2).

Traditionally, the Court does not rectify a document until it has first construed the document. However, in New South Wales, this Court has for over 40 years permitted an approach to construction and rectification claims such that it may consider a rectification claim effectively together with a construction claim and rectify a document out of an abundance of caution.

Well prior to the introduction in New South Wales of the above-mentioned civil procedure reforms, Young J (as his Honour then was) in Alcan Australia Ltd v Geraghty (Supreme Court (NSW), Young J, 8 October 1993, BC9302153, unrep) intimated that the basis for such an approach may be justified by the Court’s power to regulate its processes to ensure a just, quick and cheap disposition of the real issues in proceedings. His Honour stated at 2-3:

In 2015, Young AJA (as his Honour then was) returned to the issue in Re Cobcroft [2015] NSWSC 346 (Re Cobcroft), a Will construction case, and confirmed that rectification can be granted where appropriate out of abundant caution:

In Re Cobcroft, his Honour addressed the pros and cons of combining construction relief with rectification relief, including adverting to questions of the additional cost and length of proceedings associated with a rectification claim. His Honour gave the following guidance and noted that ultimately it would be a discretionary case management decision as to whether construction and rectification claims are combined in a way to be determined at the same hearing:

In this case, the question as to whether the construction and rectification claims should be combined in a way so that they were determined at the same hearing was foreclosed by earlier case management decisions which led to the hearing of all relief claimed at the same hearing, without the prospect of a separate determination of questions.

In those circumstances, I propose to take the approach of addressing the proper construction of the last Will without immediate reference to the claims for rectification and then, if necessary, to address the claims for rectification.

The object of construction of a Will is to give effect to what can be ascertained, having regard to admissible extrinsic evidence, the testator intended by the words he used: e.g. De Lorenzo v De Lorenzo (2020) 104 NSWLR 155; [2020] NSWCA 351 at [50] per White JA (Gleeson JA agreeing), citing Fell v Fell (1922) 31 CLR 268 at 273 per Isaacs J; [1922] HCA 55 (Fell v Fell); Perrin v Morgan [1943] AC 399 at 406 per Viscount Simon LC, 416 per Lord Thankerton.

In so construing the testator’s expressed intentions, the Court does not search for what the testator subjectively intended, or meant to say or do, when making the Will: Middleton v Schofield [2022] NSWSC 1454 (Middleton v Schofield) at [17] per Robb J, citing Farrelly v Phillips (2017) 128 SASR 502; [2017] SASCFC 111 at [32] per Stanley J (with whom Kourakis CJ agreed); Carrington v Wallace [2019] NSWSC 1301 (Carrington v Wallace) at [57] per Robb J, quoting GE Dal Pont and KF Mackie, Law of Succession (2nd ed, 2018, LexisNexis Butterworths) at [8.4].

Text and context are the guides.

The nature of language and literary expression is such that the task of construction, in ascertaining the intention of the testator, is not purely a mechanical exercise: Estate of JA Gilmore, deceased [2014] NSWSC 1263 at [33] per Lindsay J.

In undertaking the construction task, the Court looks at the Will as a whole, before finally arriving at an opinion as to the meaning of the contested portion, to ascertain whether anything in any other part of the Will informs the meaning of the passage in controversy: Fell v Fell at 273-274.

The purpose of reading the Will as a whole was explained by Isaacs and Powers JJ in Sidle v Queensland Trustees Ltd (1915) 20 CLR 557 at 560-561; [1915] HCA 48. Their Honours stated:

The Court adopts the “armchair principle”, putting itself in the position of the testator in considering all material facts and circumstances known to the testator with reference to how he is taken to have used the words in the Will: Warton v Yeo [2015] NSWCA 115 at [35] per Ward JA (as the President then was), citing Allgood v Blake (1873) LR 8 Exch 160 at 162 per Blackburn J.

Evidence of surrounding circumstances (facts and circumstances known to the testator at the time the Will was created) is directed to context: King v Perpetual Trustee Co (Ltd) (1955) 94 CLR 70 at 78 per Dixon CJ, Williams, Webb, Fullagar and Taylor JJ; [1955] HCA 70; James v Douglas [2016] NSWCA 178 (James v Douglas) at [19] per Meagher JA (Leeming and Simpson JJA at [77]-[78] agreeing). Thus, it is permissible to ascertain intention by reference to wording expressed within the Will, construed in context, as distinct from enquiring into the testator’s acts, feelings and intentions expressed outside the Will: GE Dal Pont, Interpretation of Testamentary Documents (2019, LexisNexis Butterworths) (Dal Pont, Interpretation of Testamentary Documents) at 42 [2.21].

Under the general law, direct extrinsic evidence of the testator’s actual intentions is limited to equivocations: Dal Pont, Interpretation of Testamentary Documents at 40 [2.17].

An equivocation arises where the testamentary language may be applied equally to each of two or more persons or things, and the Will as a whole and the available surrounding circumstances do not permit the Court to determine which of the alternatives was intended by the testator: Carrington v Wallace at [66] per Robb J.

Section 32 of the Succession Act expressly applies to proceedings to construe a Will and modifies the general law regarding what evidence is admissible: James v Douglas at [19]. It was part of the original form of the Succession Act assented to on 27 October 2006 and which commenced on 1 March 2008. It applies to Wills made on or after that date.

Section 32 is in the following terms:

In “Will Construction” (Paper), NSW Bar Association Succession and Elder Law Committee, 22 March 2023, I stated as follows (omitting footnotes):

Ms Fendekian submitted that the Court should consider whether any basic scheme can be discerned as to the outcome intended by the testator as to the distribution of his estate, citing inter alia Powell J (as his Honour then was) in Coorey v George (Supreme Court (NSW), Powell J, 27 February 1986, BC8601222, unrep) at 14, in a passage approved by Bryson J (as his Honour then was) in Perpetual Trustee Co Ltd v Wright (1987) 9 NSWLR 18 at 33: DCS [63(2)].

Clearly the Court will, where it can, strive to interpret the wording of the Will to give effect to such a scheme where it is revealed: see also Fairbairn v Varvaressos (2010) 78 NSWLR 577; [2010] NSWCA 234 at [19] per Campbell JA (Macfarlan and Young JJA agreeing).

Where the language is lengthy or obscure, or the effects of the literal reading and the reasoning impliedly underlying it are startlingly unlikely, the scheme of dispositions is very important. However, if the terms of the Will are perfectly clear, such search for a ‘scheme’ may be of little use: Muir v Winn [2009] NSWSC 857 at [24] per Bryson AJ.

Mr Birtles contentions regarding construction of the last Will may be summarised as follows:

Ms Fendekian submitted that there is no ambiguity, as a matter of English usage, in the phrase “my property known as ‘Dinga Dee’ more particularly described as Lot [X] in DP [XXXXXX]”: T 444; DCS [69].

She added that this is not altered by reference to “armchair evidence”: cf POS [54(g)].

The last Will is divided into four parts, consisting of:

The testamentary trust provisions are contained in cl 16.

For present purposes, the relevant provisions of the last Will are contained within Part A.

By cl 1, the deceased revoked her prior testamentary “acts”.

By cl 2.1, the deceased appointed the defendant and the plaintiff, together with Mr Gowing, to be her executors.

The dispositive provisions of the last Will are set out in cll 5.1-5.4, 6.1, 7.1-7.3 and 8.1-8.3. Those clauses are in the following terms:

Additionally, the last Will contained cl 9 headed “Provision for my Sons” which is in the following terms:

Clause 7.3 is (again) in the following terms:

The structure of dispositions by the deceased under the last Will does not give strong guidance as to the true construction of clause 7.3(a).

Little can be gleaned from the gift of personal chattels in cll 5.1-5.4 and the gift to grandchildren (which would have benefited each of Andrew, Stuart and Angela) about which I make no further comment.

The division of residue, whilst unequal, does not itself give any specific clarity to the disposition of real property in clause 7.3.

In relation to cl 9.2, there is no suggestion that the deceased or Jim had made any specific disposition of property to the plaintiff and the defendant during their lifetime.

I confess that there is a curiosity as to why the deceased would have included lot (e) as one of the lots given to the defendant in circumstances where it is effectively landlocked. Mr Doyle, whilst accepting that it was a pertinent query, frankly acknowledged that he had not addressed his mind to it or asked the deceased about access to the lots: T 360.46-361.8. Ms Fendekian submitted that lot (e) was leased and generated income, thus intimating that that was the reason why it might be of use to the defendant: T 439.35.

On a plain reading of cl 7.3(a) there are two lots described:

There are essentially two compelling reasons which, to my mind, count against and ultimately foreclose the construction for which the plaintiff contends.

First, each of the properties is described by reference to a name which is followed by the words “more particularly described as…”.

The appropriate method for describing landholding will depend upon various factors, including context. The factors include the form of title holding (particularly in the case of a statutory form of title system such as the Torrens system), the location of the property and local or bespoke nomenclature.

Sometimes a testator may intend to identify the subject of the gift by reputation rather than necessarily by strict title identification: e.g. Middleton v Schofield at [39]. There are cases in which the failure of a testator to describe land by reference to a certificate of title reference may create doubt but nonetheless the Court is able to identify the land which is described by a colloquial name as being the subject of the gift: e.g. IMO Leys [2000] VSC 164 at [11] per McDonald J (otherwise described as Edmonston v Friends of Henry George Inc [2000] VSC 164).

For legal purposes, it is a relatively common drafting technique, particularly in relation to land, to describe the land by reference to a formal title description such as a lot and deposited plan number: e.g. Middleton v Schofield at [120]. Indeed, courts regularly make orders which describe land by reference to a street address and then, to remove all semblance of doubt about what land is precisely the subject of the order, use the words “more particularly described (as/in)” followed by the formal title description: see e.g. Gazzo v Comptroller of Stamps (Vic) (1981) 149 CLR 227 at 230 per Gibbs CJ; [1981] HCA 73 (referring to an order of the Victorian Supreme Court).

Occasionally, cases may arise where property is said to be “more particularly described” in a schedule and further wording within the schedule creates confusion regarding the precise identification of the land or an aspect of the land: see Alan Wibberley Building Ltd v Insley [1999] 1 WLR 894 at 898-899 per Lord Hoffmann. Nonetheless, the general position is that use of the words “more particularly described (as)”, followed by a distinct title reference, is a useful and appropriate drafting technique to remove doubt about what land is precisely the subject of a gift.

In this case, the effect of the words “more particularly described” in relation to each of the properties in cl 7.3(a) of the last Will is to clarify which property is being described and so exclude any residual doubt. If there were any ambiguity between the name of the property and title reference, the words “more particularly described” indicate that what follows by way of title reference is to be decisive in terms of what is given. It was a means of being more precise about, and thus controlling, what property was described by the colloquial name.

Secondly, the argument that “Dinga Dee” should be construed as the 10 lots north of Stroud Hill Road, which the deceased at times described as the “Dingadee lots”, loses considerable force by the carving out and specific separate gifting of the “Neilsons” property, which under the plaintiff’s argument is one of those “Dingadee lots”.

I reject the plaintiff’s construction of cl 7.3(a) to the extent that it asserts that the reference to “Dinga Dee” should ultimately be read as the 10 lots north of Stroud Hill Road which the deceased at times described as the “Dingadee lots”.

The plaintiff’s rectification claim is essentially that the deceased’s instructions given to Mr Doyle and Mr Gowing were that the plaintiff was to receive “Dingadee” (which relevantly included the (10) Dingadee lots) and “Neilsons”, and that the process of converting the instructions to a lot and folio identifier miscarried by reason of a clerical error(s) or failure(s) on the part of Mr Doyle and/or Mr Gowing. The error or failure on either or both of their parts caused a discrepancy between the instructions given by the deceased as to the property that she intended the plaintiff to inherit and the words giving effect to the gift in cl 7.3(a) of the last Will: T 7.6-10, 13.1-6, 408.8-14. Mr Birtles nonetheless accepted that there was no “clerical error” in the gift in relation to “Neilsons”: T 407.26-28.

The claim invoked both limbs of s 27(1) of the Succession Act: CB 40[17]. Ultimately, Mr Birtles submitted that the last Will should be rectified by replacing the words “Dinga Dee” with the word “Dingadee” in the first instance, because Mr Doyle and Mr Gowing seem to have accepted that the spelling of “Dingadee” as two words was a mistake (Mr Gowing at T 323.50-324.37; Mr Doyle at T 352.24-353.16), with the consequence that the spelling of Dingadee as two words in cl 7.3(a) of the deceased’s last Will was a clerical error or otherwise a failure to follow instructions: PCS [50].

The rectification claim is made pursuant to s 27(1) of the Succession Act. Section 27 applies to a Will whether made before, on or after 1 March 2008 (the commencement of the Succession Act) if the testator dies on or after that date: Sch 1, cl 3(3) Succession Act.

Section s 27(1) of the Succession Act provides as follows:

An application for rectification must be made within 12 months after the date of death of the testatrix: s 27(2) Succession Act.

The deceased died on 28 May 2021. The statement of claim which sought an order for rectification was filed on 27 May 2022: CB 1, 3. Accordingly, the rectification claim was made just within time.

In Singh v Singh [2018] NSWCA 30 (Singh v Singh), Gleeson JA (with whom Leeming JA and White JA agreed at [319] and [326], respectively) stated:

Further, in Bear v Bear; Jordan v Bear [2022] NSWSC 1687, I noted:

In addressing the “clerical error” part of the United Kingdom equivalent rectification provision, Lord Neuberger of Abbotsbury PSC in Marley v Rawlings [2015] AC 129; [2014] UKSC 2 (with whom Lord Clarke of Stone-cum-Ebony, Lord Sumption, and Lord Carnwath JJSC agreed; Lord Hodge JSC also agreed though confining himself to some observations on how Scots law might have dealt with the problem if it were the governing law: at [87]) stated at [71] that the best judicial summary of the effect of the cases then so far decided on s 20(1)(a) of the Administration of Justice Act 1982 (UK) was given by Blackburne J in Bell v Georgiou [2002] EWHC 1080 (Ch); [2002] WTLR 1105 at [8]:

The full version of that paragraph is as follows:

Section 20(1) of the Administration of Justice Act 1982 (UK) provides as follows:

Whilst the United Kingdom provision has a different second limb basis for rectification, the United Kingdom caselaw, in so far as it deals with the clerical error limb, has been cited and applied in Australia: e.g. GE Dal Pont, Law of Succession (3rd ed, 2021, LexisNexis) (Dal Pont, Law of Succession) at 80-81 [2.65]; see generally Daniel J Carr, “Rectification of testamentary writings in Scotland, England and Wales, and Australia” (2023) 17 J Eq 181 at 194-195.

In the United Kingdom, it has been said that the adjective “clerical” targets the nature of the error, not the nature of the person who made it: Dal Pont, Law of Succession at 80-81 [2.65], citing Re Williams (deceased) [1985] 1 All ER 964 at 969 per Nicholls J.

However, because of the differences in the statutory provision, one needs to be careful not to completely adopt the English authorities without some degree of care. For example, as I have observed, the nature of the second limb in s 27(1)(b) (“the will does not give effect to the testator’s instructions”) differs from the United Kingdom provision (“of a failure to understand his instructions”). In Vescio v Bannister (Estate of the late Betty Tait) [2010] NSWSC 1274, Barrett J doubted that s 27(1)(b) could apply to a Will composed and written by the testator personally, stating at [12]:

Mr Birtles submitted that earlier English authorities interpreting “clerical error” broadly have been followed in Australia, citing Re Will of McCowen [2013] NSWSC 1000; (2013) 9 ASTLR 337 (Re Will of McCowen) at [15], per Young AJ: POS [38].

Young AJ’s comments in Re Will of McCowen are interesting. His Honour stated there:

Section 27(1) of the Succession Act contains the conjunction “because”. The word “because”, in context, connotes a basis for something occurring “for the reason that; due to the fact”: Macquarie Dictionary, online ed.

I accept that s 27(1)(a) of the Succession Act requires that there be some connection between the clerical error and the failure that the Will does not carry out the testator’s intentions.

However, I have to confess that, for my part, I would doubt that the second question posed by his Honour in Re Will of McCowen at [13] is an apt question and that the indication that the clerical error is the “principal” or “sole or dominant” reason as to why the Will does not carry out the testator’s intentions is a requirement of the statutory provision.

The statutory power of rectification is not qualified in those terms. As a matter of statutory construction, it is inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words: Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 at [55] per Gummow ACJ, Kirby, Hayne and Heydon JJ, citing inter alia Owners of “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404 at 421 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ; [1994] HCA 54 .

The notion of there being a requirement that the error be the “principal” or “sole or dominant” reason as to why the Will does not carry out the testator’s intentions has not been adopted in other cases.

In Lockrey v Ferris [2011] NSWSC 179, Hallen AsJ (as his Honour then was) simply used the words “in consequence of” at [73] in describing the application of s 27(1) of the Succession Act. Thus, his Honour stated (my emphasis):

The astute observer will note that the conjunction “in consequence of” is used in the United Kingdom equivalent legislation (section 20(1) of the Administration of Justice Act 1982 (UK), which I have outlined above) in the equivalent place where the word “because” is used in s 27(1) of the Succession Act.

Strictly, it seems to me that there is no need, in applying the provisions of s 27(1), to use a word other than the word “because”, being the word found in the statute’s text. Nonetheless, I note that in the extract from Singh v Singh, Gleeson JA at [195] referred to Hallen AsJ’s comments above, describing them as a helpful identification of the questions posed by the section (Leeming JA at [319] and White JA at [326] agreeing). His Honour thus accepted that the conjunction “in consequence of” is a “helpful” way of understanding the meaning of the word “because” in s 27(1).

In outlining the case for rectification, Mr Birtles essentially advanced a theory that “advisor initiative” led to the inclusion of folio identifiers in cl 7.3(a) of the last Will: PCS [56], [60].

The essence of Mr Birtles’ argument is as follows (POS [54(a)-(e)]):

Mr Birtles submitted that the evidence as a whole, properly reconciled, is that the deceased gave instructions that the plaintiff was to receive “Dingadee” and “Neilsons”, but there was no process by which the deceased was asked to point at a map for the purposes of identifying a lot: T 401.18-22. His explanation for the deceased distinguishing “Neilsons” from “Dingadee” is that, because Lot X in DP XXXXX was subdivided (in 1987: CB 98[108]) giving rise to two lots (being “Neilsons”, lot (b), and the plaintiff’s lot, lot (c)), the deceased wanted to make sure that the plaintiff got “Neilsons” (lot (b)): T 401.24-29.

Mr Birtles submitted that the deceased intended to identify the subject of the gift in part by general reputation or the deceased’s own dictionary, rather than necessarily by strict title identification: T 409.9-410.34 (see e.g. Middleton v Schofield at [39]).

However, he says that if part of Mr Gowing and Mr Doyle’s conversation with the deceased was about squaring up the plaintiff’s boundaries, then lot (e), which is surrounded by lot (a) and the northern railway line, “sticks out like a sore thumb” and it is “just completely inexplicable that he [Mr Doyle] would not have asked about what should happen to that lot”: T 401.31-35.

The evidence about squaring up boundaries references what Mr Gowing said in cross-examination, namely, that his strongest recollection of the deceased’s instructions was that she wished to “square up the boundaries” around the plaintiff’s house: T 325.14-16, 331.30-32.

However, Mr Birtles also submitted (at T 390.30-33):

I do not think that it is “completely inexplicable” that Mr Doyle would not have asked about lot (e). He accepted that he was not familiar with the deceased’s landholdings.

Mr Birtles accepted that he could not point to any evidence which suggested that the deceased’s instructions to Mr Doyle and Mr Gowing were that the leased lots were to go to the plaintiff: T 403.19-21.

Mr Birtles acknowledged that, if I accepted the evidence of Mr Gowing and Mr Doyle that the deceased pointed at a part of the map, it left “little room for the construction part of the case”, and I infer also little room for the rectification claim: T 388.26-40.

Ultimately, Mr Birtles submitted that, between 22 and 28 June 2010, Mr Gowing went out to see the deceased alone for the purpose of obtaining information about the acquisition date and cost base for her properties: T 398.45-47.

As indicated above, I accept Mr Gowing’s evidence that the annotations appearing on the North map and South map were provided, as he says, by the deceased to him on an occasion on which he met the deceased without Mr Doyle being present.

The notion that the North map and South map were prepared for the purposes of assisting Mr Gowing for tax and accounting considerations is in part correct. However, contrary to the submissions or case theory of Mr Birtles, that of itself does not mean that the North map and South map were not present or provided at the instructions conference and that Mr Gowing and Mr Doyle had incomplete information: PCS [62]; T 388, 390.39-43.

I find that the North map and South map were present at the instructions conference and, relevantly, the deceased pointed out to Mr Doyle the lots being “Dingadee” and “Neilsons”.

I further find that the deceased’s instructions, in the above respect clarified by her act of pointing to the lots, were to give to the plaintiff the two lots “more particularly described” in cl 7.3(a) of her last Will as follows:

Mr Birtles submitted that it would perhaps not have been as apparent to a lay person that the words “more particularly described as”, in terms of identifying land, have the effect of refining or being more precise or controlling what was described: T 394.47-395.2.

In light of my finding that the deceased particularly identified the lots which she wished to gift to the plaintiff by pointing to them on the maps, there is no need for me to speculate further about that matter. However, I seriously doubt that the deceased would not have understood the words “more particularly described” as confining the gifting to the two specified lots. Even if one assumes that the deceased did not know the precise lot numbers for each of the 21 lots that she held, to my mind it is unlikely that:

I reject the submission that the deceased sought by her last Will to divide the collective farm as a whole by reference to the two dairies. By 2010 the two dairies did not exist as such: T 397.28-37.

I reject the submission that the deceased sought to divide the land by reference to what was known as “Dingadee” (in the sense of being 10 or more lots) against what was left for the defendant: T 397.39-41.

In light of the deceased’s express instructions, there is no scope for the so-called “abundance of armchair evidence” regarding the deceased’s intentions on other occasions separate from the instructions for the last Will (as given in the instructions conference and confirmed on the occasion of the execution of the last Will).

In light of the above, I reject the claim for rectification of the last Will as sought.

Subject to one matter, my finding in relation to Issue 4(a) suffices to dispose of Issue 4(b). I accept that the spelling of “Dinga Dee” as two words is not the usual way of spelling the name and I have rejected the defendant’s evidence regarding what he says “Dinga Dee” means.

I am prepared to accede to a rectification of the words “Dinga Dee” with “Dingadee”. However, it is not for the purpose advanced by the plaintiff. The rectification would simply be for the purposes of recording the more conventional spelling of “Dingadee” to accord with the association of lot (a) with Dingadee Dairy.

My finding in relation to Issue 4(a) suffices to dispose of Issue 4(c). I reject the claim for rectification of the last Will as sought.

The precise nature of the equitable estoppel relied upon was not identified by the plaintiff’s pleading. However, the plaintiff’s opening submissions made it clear that what is pressed is a proprietary estoppel claim, specifically estoppel by encouragement: POS [40]-[43], referring to Daniel v Athans [2022] NSWSC 1712 (Daniel) at [24] and [25] per Robb J, and Thorner v Major at [8] per Lord Hoffmann, and at [56]-[58] per Lord Walker of Gestingthorpe.

Mr Birtles submitted that the measure of relief usually reflects the value of the promise, citing Priestley v Priestley [2017] NSWCA 155 (Priestley v Priestley) at [160], [164] per Emmett AJA: POS [53].

Traditionally, proprietary estoppel has been used to refer to one or other, or both, of two established forms of equitable estoppel, being the doctrines descended from Dillwyn v Llewelyn (1862) 4 De GF & J 517; 45 ER 1285 and Ramsden v Dyson (1866) LR 1 HL 129. In simple terms, the doctrine associated with Dillwyn v Llewelyn is otherwise known as estoppel by encouragement, and the estoppel descended from Ramsden v Dyson is otherwise known as estoppel by acquiescence or standing by: see generally JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow and Lehane’s Equity Doctrine & Remedies (5th ed, 2014, LexisNexis Butterworths) (MGL) at 519 [17-065].

Estoppel by encouragement is founded in an assumption as to the future acquisition of ownership of property which has been induced by a representation or promise upon which there has been detrimental reliance by the plaintiff: see Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220 (Q v E Co) at [15] per Meagher JA (Leeming and Payne JJA agreeing).

In an often-cited passage in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7, Brennan J described the requirements for establishing equitable estoppel in the following terms (at 428-429):

In the context of family circumstances, there is ordinarily a question regarding whether the alleged promises or statements are intended to create legal relations.

The modern approach is to avoid use of presumptions as to whether or not some family arrangements are intended to give rise to legal obligations. That has limited utility. It is more important to ask “who bears the onus of proof?”: Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8 (Ermogenous) at [26] per Gaudron, McHugh, Hayne and Callinan JJ.

Whether any, and if so what, representation has been made is to be judged “objectively according to the impact that whatever is said [or done] may be expected to have on a reasonable representee in the position and with the known characteristics of the actual representee”: Q v E Co at [15], quoting Mance LJ in MCI WorldCom International Inc v Primus Telecommunications Inc [2004] EWCA Civ 957; [2004] 2 All ER (Comm) 833 at 844; see also Thorner v Major at [24]-[27] per Lord Rodger of Earlsferry and at [80], [84]-[86] per Lord Neuberger of Abbotsbury; in this Court, see Galaxidis v Galaxidis [2004] NSWCA 111 at [93] per Tobias JA; Sullivan v Sullivan [2006] NSWCA 312 (Sullivan) at [85] per Hodgson JA; and Evans v Evans [2011] NSWCA 92 at [124] per Campbell JA; see also Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12 (Ashton v Pratt (CA)) at [224] per Meagher JA, citing Ermogenous at [24]-[26] and also Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35 at [22].

However, the fact that at no stage in a conversation anything is said by one party that conveys to the other that what is being promised is to be legally enforceable is not determinative of the matter: Ashton v Pratt (CA) at [225], citing Placer Development Ltd v Commonwealth of Australia (1969) 121 CLR 353 at 367 per Windeyer J; [1969] HCA 29.

In relation to reliance, Mr Birtles referred to Gillett v Holt [2001] Ch 210 (Gillett v Holt) at 227-228 per Robert Walker LJ and Priestley v Priestley at [135]-[137], and noted that the question of reliance is to be determined from the whole of the evidence, on the balance of probabilities (citing Moore v Aubusson [2020] NSWSC 1466 at [402] per Ward CJ in Eq (as the President then was)): POS [44]-[48]. Ms Fendekian referred to Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 (Sidhu v Van Dyke) at [58] per French CJ, Kiefel (as her Honour then was), Bell and Keane JJ, and at [90]-[93] per Gageler J (as the Chief Justice then was): DCS [133]-[134].

In relation to the principles of reliance, in Shymko v Lach [2022] NSWSC 1096 I stated as follows:

The party relying on the estoppel must establish that it would have acted differently in the absence of the relevant encouragement: Q v E Co at [88], citing Sidhu v Van Dyke at [66], [67], [69] per French CJ, Kiefel, Bell and Keane JJ and [91] per Gageler J.

As estoppel by encouragement serves to vindicate the expectations of the representee against a party who seeks unconscionably to resile from an expectation he or she has created, it is necessary to consider the “counterfactual position” of how the representee would have acted differently in the absence of the relevant encouragement. The extent to which it is unconscionable of the deceased’s estate to seek to resile from the position expressed in the deceased’s assurances to the plaintiff may be gauged by reflecting on the plaintiff’s likely response if told from the outset that the promises were not intended to be binding, or warned that the deceased gave no undertaking or assurance as to the plaintiff’s inheritance of the farms: Q v E Co at [89], [91], citing inter alia Sidhu v Van Dyke at [77] and Priestley v Priestley at [124].

In Q v E Co, Meagher JA quoted at [89] the influential unreported judgment of Hoffmann LJ in Walton v Walton (CA, 14 April 1994) when his Lordship stated:

Care needs to be given to framing the counterfactual position. Options open to the representee might not necessarily be limited to a binary choice: Q v E Co at [106].

It is not necessary for the representee to articulate precisely what he would (counterfactually) have done: Priestley v Priestley at [147]. Accordingly, the fact that the representee’s evidence as to what he would have done is only raised as a possibility, and is qualified by adverse concessions as to the desirability of such a choice, does not necessarily preclude a finding of reliance: Q v E Co at [106].

Sometimes, a plaintiff’s evidence of what he or she would have done if told the promises were not intended to be binding or warned that the deceased gave no undertaking or assurance as to the outcome of the promises (such as the plaintiff’s inheritance of a farm or part thereof) is equivocal: Q v E Co at [96].

Some degree of caution is justified in assessing such evidence because it is hypothetical, and may be self-serving: Q v E Co at [116].

In D Capital 2 Pty Ltd v Western [2022] NSWSC 1064; (2022) 20 BPR 42,919, I addressed the admissibility of evidence of what a party would have done in a hypothetical situation. I stated:

Thus, the weight of the “hypothetical” evidence is to be assessed by reference to context and the surrounding circumstances, probability and other objective evidence.

In estoppel by encouragement, there must be reliance in fact, and the legal burden of proving reliance never shifts: Sidhu v Van Dyke at [57]-[61]. However, as a mere factual matter, in some cases it may “fairly be said that, once it is established that the representation was made, the representation together with all the other facts of the case enables the claimant to say that, unless the defendant can elicit some further evidence to the contrary, the claimant will have discharged the onus”: Q v E Co at [119], quoting Neuberger LJ (as his Lordship then was) in Steria Ltd v Hutchison [2006] EWCA Civ 1551 at [130].

The recent Court of Appeal decision Kramer v Stone [2023] NSWCA 270 (Kramer) considered the question of whether the representing party (in that case, as in this case, the deceased) needed to have actual knowledge of detrimental reliance on the representation for estoppel to be established.

It is clear from the decision in Kramer that, in addressing that question, there is a distinction between proprietary estoppel by encouragement and by acquiescence. Ward P expressed the view that (at [201]):

Her Honour then stated at [202]:

Leeming JA (at [257]) agreed with Ward P and addressed reasons by way of elaboration, rather than qualification, with her Honour’s reasons.

Specifically, his Honour addressed the issue of whether, in a claim based on estoppel by encouragement, it is necessary to show that the representor had actual knowledge of the plaintiff’s assumption: Kramer at [278]-[295].

His Honour expressed the view that the weight of authority favoured a conclusion that actual knowledge of detrimental reliance is not required in circumstances where the estoppel is based on active or positive encouragement of a plaintiff’s assumption: Kramer at [291], [295].

Kirk JA agreed with Ward P and also agreed with the additional observations of Leeming JA relevantly on this issue: Kramer at [296].

In relation to detriment, Mr Birtles cited Gillett v Holt at 232 per Robert Walker LJ, Sidhu v Van Dyke at 529 per French CJ, Kiefel, Bell and Keane JJ, and Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560; [2014] HCA 14 (Hills) at [150] per Gageler J: POS [49]-[51].

In Q v E Co, Meagher JA (Leeming and Payne JJA agreeing) addressed detriment in the following terms:

In the joint judgment in Sidhu v Van Dyke, their Honours addressed detriment at [84] as follows (footnote omitted):

In Maxwell v Maxwell [2022] NSWSC 1028, Ward P made reference to the above comments of the joint judgment in Sidhu v Van Dyke, although on the facts of that case her Honour did not accept that there had been detrimental reliance in the sense of a life-changing decision in reliance upon the assumption (at [252]).

In relation to relief, Mr Birtles extracted a number of principles drawn from the decision of Robb J in Lewis v Stewart [2018] NSWSC 1186 at [219], in turn being an edited germane version of the principles stated by Handley AJA in Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84 (Delaforce) at [53]-[78]. Mr Birtles’ summary is as follows (POS [52]):

In Q v E Co, Meagher JA posed the following question at [131]:

To enliven the question of relief, there must be detriment that is sufficiently substantial, real or material to bind the conscience of the party said to be estopped: Q v E Co at [127].

There may be cases in which an estoppel is established but the disproportion between detriment and expectation is so great that conscience does not require the party estopped to make good the assurance: Q v E Co at [127], citing Sidhu v Van Dyke at [85] and Giumelli v Giumelli at [40]-[48].

In relation to proportionality and the significance of “countervailing benefits”, Meagher JA stated as follows in Q v E Co:

Particular care is needed in identifying what may be taken into account. In Q v E Co, it was the respondent sons’ case that they joined and worked in the new family business relying on the expectation induced by the appellant (Q) that he would make certain farms available to the new family business, hold them for his sons during his lifetime, and leave them or the proceeds of their sale to the sons on his death (referred to as the “holding/inheritance expectation”). The appellant identified seven benefits said to have accrued to the fourth respondent (B) and fifth respondent (C) by reason of their reliance on the holding/inheritance expectation, and estimated their total value at approximately $1.8 million for B and $1.55 million for C. The appellant submitted that the primary judge could not be satisfied, having regard to their enjoyment of the “countervailing benefits”, that B and C would suffer substantial detriment by Q’s departure from that expectation. However, the Court of Appeal held that in relation to the first, second and fifth of the “benefits”, in so far as they included the value of an unrealised ongoing “opportunity” presented by B and C’s involvement in the family business, that should not be taken into account in any exercise directed to determining whether the sons suffered detriment by their reliance on the holding/inheritance expectation. Those unrealised opportunities simply did not form part of the sons’ changes of position on the basis of that expectation: Q v E Co at [139]-[140].

The plaintiff propounded the estoppel claim in a context in which his parents had, from the 1960s, operated the Kennilworth Dairy and then, from 1979, commenced the purchase of lots which would comprise the Dingadee Dairy and more particularly the Dingadee lots.

It is pleaded by the plaintiff that, in respect of the initial promises, he believed and expected that one half of the family farm (consisting of land, livestock, motor vehicles, machinery, plant and equipment owned by Jim and the deceased) would be provided to him: CB 42[42]. In relation to the subsequent promises, the plaintiff pleads that, from 2006 onwards, he believed and expected that the deceased had made, or would make, all necessary arrangements to ensure that the leased lots were given to him by her Will: CB 47[53].

The first occasion of the initial promises occurred in December 1969.

Following the receipt of an offer to study medicine at the University of Sydney, the plaintiff had a discussion with his parents during which the deceased said to him (CB 84[29]):

The plaintiff gave the following evidence (which I accept) at CB 84-85[30]:

Medicine was not offered at the University of Newcastle in 1970 and, as a consequence of the plaintiff’s decision, he declined the opportunity to study medicine and studied science at the University of Newcastle instead: CB 84-85[30]-[31].

In December 1977, there were four conversations which, together with the 1969 conversation set out above, were said to be part of the initial promises. Conveniently, Mr Birtles extracted the essence of the initial promises as follows at PCS [155]-[158] (which I have re-numbered as 1-4):

Mr Birtles submitted that the initial promises had also been repeated on a number of occasions after December 1977, and extracted what he submitted was the plaintiff’s key evidence regarding the repetition of the initial promises at PCS [159]-[169] (which I have re-numbered as 1-11):

As can be seen from the above, the plaintiff’s evidence, which I accept at least as to the gist or essence of the promises and the occasions, is that the initial promises were repeated in various forms on a number of occasions.

Mr Birtles submitted that the subsequent promises regarding the leased lots were made in or about December 2008 and had been repeated on a number of occasions. He extracted what he submitted were the essential parts of the plaintiff’s evidence in this regard at PCS [170]-[175] (which I have re-numbered as 1-6):

Likewise with his evidence of the initial promises, I accept the plaintiff’s evidence at least as to the gist or essence of the subsequent promises and the approximate occasions on which he says they occurred.

There is evidentiary support for the notion that the deceased had conveyed not merely to the plaintiff, but to others, that her estate would be equally split between the plaintiff and the defendant.

Mr Addison’s evidence gave a degree of support for the plaintiff’s indication that his parents were not keen for him to take up the offer to Florida State University. Mr Addison deposed to a conversation with Jim, at about the time that the plaintiff had been awarded his PhD (October 1977), to the following effect (CB 142-143[13]):

Andrew deposed to a conversation with Jim when he was about 15 years old (i.e. at some point in about November 2000–November 2001), in which they were stopped at the shed below Dingadee Cottage in lot (h) and Jim stated “[y]ou know I want your father [to] have this paddock one day”: CB 153[16].

In late 2005, approximately eight months after Jim died, Andrew deposed to a conversation with the deceased in her living room to the following effect (CB 154[21]):

Andrew was tested at some length regarding this conversation. It was suggested to him that, for a number of reasons, he might not remember the conversation very clearly and that it was possible that he might have reconstructed the conversation. He disputed that suggestion, indicating that he recalled the conversation very clearly: T 217. I am satisfied the conversation occurred substantially as deposed to by Andrew.

From the time that the deceased commenced leasing out the leased lots, Andrew confirmed that, when he worked on the farm each weekend, the work he performed included maintaining the leased areas with the plaintiff and Stuart: CB 154[22]. I accept his evidence.

In or about 2011, Andrew visited the deceased at her home and had a conversation with her in the garden (CB 154[27]) in words to the following effect (CB 155[28]):

Andrew was challenged regarding his recollection of this conversation. However, I am comfortably satisfied that the conversation was essentially as Andrew deposed to.

In context, having regard to the location of the conversation, I infer that the deceased was intimating that the defendant would inherit the property south of Stroud Hill Road, being the “Kennilworth lots”, and the plaintiff would inherit the property north of Stroud Hill Road, being what I have described as the “Dingadee lots”. That inference accords with Andrew’s understanding of his discussion with the deceased: CB 155[28].

In about May 2005, about three months after Jim died, Stuart visited the deceased at her home one weekend and had a cup of tea with her at the kitchen table, during which he is said to have had a conversation with her to the following effect (CB 184[22]):

Ms Fendekian tested Stuart in relation to his recollection of this conversation with the deceased: T 235-237. I accept his evidence.

From the time that the deceased leased property in what Stuart described as the “Dingadee paddocks” (i.e. from about 2006), he indicated that his work on the farm focused on assisting his father to maintain the leased paddocks, which mainly included fixing fences and weed control: CB 185[24]. I note that, in 2008, Stuart had returned to live with his parents as his mother had been diagnosed with cancer and he wanted to be with her. He visited the deceased approximately two to three times per week: CB 185[25].

In about 2008, Stuart had conversations with the deceased which he deposed to in the following terms (CB 185[27]-[28]):

Stuart denied in cross-examination that the deceased’s statement regarding the work he had been doing on “your father’s part of the property” was a reference to work on Amberley Park (i.e. lot (c)). He indicated that she was referring to work that the plaintiff, Andrew and he had been doing “all through Dingadee”. The evidence was as follows (T 237.45-238.25):

Stuart denied that he was making the evidence up: T 238. I unreservedly accept his evidence.

Ms Fendekian also pressed Stuart in relation to the second conversation he deposed to having with the deceased in 2008 (CB 185[28]): T 239. I accept his evidence.

Stuart indicated that in 2010, whilst visiting the farm, the plaintiff, the deceased and he drove around the “Dingadee property” and stopped on an area he identified as being lot (h). He indicated that the plaintiff showed the deceased the work they had completed (including slashing weeds, removing old fences and picking up rocks) and stated that the deceased said to him (CB 186[32]):

Ms Fendekian tested Stuart in relation to this evidence: T 239-245. He explained, by reference to MFI-2, the events of the journey and confirmed that the site was lot (h). I am comfortably satisfied that Stuart had a reliable recollection and I accept his evidence.

In approximately 2014, Stuart indicated that the deceased was less mobile and did not travel around the farm. Nonetheless, during his visits to the deceased, she asked him about the leased areas. He deposed to the following conversation (CB 186[34]):

Ms Fendekian tested Stuart in relation to the conversation: T 245-248. He disputed the suggestion that he liked to ensure that he always communicated to the deceased what works he was doing on the leased areas, instead indicating that the deceased would ask: T 246. Whilst Ms Fendekian put to Stuart that the conversation did not happen in the terms he deposed to, he rejected that as incorrect: T 248. I accept his evidence.

In 2018, Stuart indicated that he and his father attended to removing cattle carcasses from lot (h). He stated that he had a conversation with the deceased at her home about this work, and she was glad that he and his father had “sorted out those carcasses over at Dingadee”: CB 186[37].

In 2020, Stuart had a conversation with the deceased whilst visiting her at her home, in which she said (CB 187[38]):

Stuart was also tested in relation to this evidence: T 248-250. He clarified that the area he and his father had been spraying was the far right-hand side (or the “top end”) of lot (h): T 249. I accept his evidence.

Finally, Stuart indicated that, later in 2020, he was spraying weeds on lot (h) with his father and Andrew and, when he next saw the deceased, he informed her of the work they were doing, to which she said (CB 187[39]):

Again, Ms Fendekian tested Stuart in cross-examination regarding this conversation: T 250-252. He disputed that there was ambiguity in relation to the area that would belong to his father, and indicated that there was a burial site on a ridge at the top of lot (h). He stated “[t]here’s an existing burial site up there, so it was quite clear where it was” (T 251.35-42), and adhered to that evidence on testing: T 251.44-252.14. I accept his evidence.

Leaving aside the niceties of the expression “estate” as distinct from the “farm”, Ms Hewitt deposed to a conversation with the deceased in the presence of Ms Hewitt’s mother, not long after Jim died, in the deceased’s kitchen as follows (CB 147-148[12]-[13]):

Ms Hewitt accepted the conversation occurred in 2005: T 188.30-31. She was asked to assume that the deceased had made a Will in 2006 that was not a “50/50 split” between the plaintiff and the defendant.

On the basis of that assumption, Ms Hewitt’s cross-examination included the following (T 189.1-16):

Ms Hewitt was questioned whether the deceased was simply being agreeable with her mother, to which she accepted that that was a possibility and agreed that the deceased did not go into any more details about her intentions. However, she ultimately held to her evidence (T 190.11-13):

I accept Ms Hewitt’s evidence that the conversation occurred as she deposed to.

What amounts to “sufficient clarity” of the relevant assurance in a proprietary estoppel farming case is hugely dependent on context: Thorner v Major at [56] per Lord Walker of Gestingthorpe.

The gist of the initial promises is that the deceased and/or Jim promised the plaintiff that by (a) forgoing educational opportunities in Sydney and Florida, (b) forgoing his share of profit of Dingadee Dairy, or at least the house rent, and (c) forgoing opportunities to purchase land elsewhere and being encouraged to build on the farm, and generally remain on the farm assisting with farm work, one half of the farm would be provided to him.

The gist of the subsequent promises from 2008 is that, in a context of the plaintiff noticing after Jim’s death that the lands which comprise the leased lots were deteriorating, he commenced maintaining the lots to the deceased’s knowledge, in circumstances in which the deceased did not maintain those areas or arrange for others to maintain them, and the plaintiff was promised by the deceased that the leased areas or lots would be his.

Ms Fendekian submitted that the Court cannot be confident that the promises were made as alleged by the plaintiff, at least because (DCS [138]):

Having carefully considered all the evidence, I accept the plaintiff’s evidence regarding the substance of the testamentary statements made to him.

I refer to my findings above regarding the plaintiff’s evidence, and also the evidence from other witnesses, which provide support for the notion that the deceased made testamentary statements not merely generally but specifically in relation to the plaintiff receiving half of the farm and other statements regarding the plaintiff receiving the leased lots.

I do not accept that it was necessarily uncharacteristic for the deceased to make statements regarding future inheritances.

The defendant gave evidence that it was not in his parents’ natures to make such statements: CB 269[67]. That may well have been the defendant’s experience. It is supported by the fact that the deceased certainly did not wish the defendant to know that she had made a Will.

There is little doubt that the deceased did not wish the defendant to know that she was making the last Will, and it was emphasised to Mr Doyle that the defendant must not find out that she had done so: e.g. CB 237[36]. The arrangements for Mr Gowing and Mr Doyle to attend upon the deceased were timed to ensure that that would not occur. In circumstances in which the last Will in its terms, on the construction that I have found, greatly benefited the defendant, it is not readily apparent as to why the deceased did not wish the defendant to know that he would be benefiting to a great extent.

The defendant says that he was inadvertently told about the last Will by Mr Doyle in about 2012, while contacting him in relation to a dispute with TransGrid. According to the defendant, when he mentioned this to the deceased she was “clearly annoyed” but nonetheless provided him with the last Will and gave him half an hour to read it: CB 267[63]-268[64].

However, the evidence that the deceased did in fact make statements of testamentary intention is not confined to the plaintiff. Both Andrew and Stuart give evidence of such statements, which I have accepted. Further, Ms Hewitt gave evidence of a testamentary statement by the deceased, which I also accept.

If, as I accept, the deceased made the subsequent promises, it begs the question as to why the deceased only gifted two specific lots to the plaintiff in circumstances where she had made promises of more extensive gifting leading up to the time of making the last Will.

The question becomes more acute in circumstances in which, having made the last Will as she did by gifting the plaintiff only two specific lots, the deceased (on the evidence of the plaintiff, Stuart and Andrew) continued to make statements to the effect of promising the plaintiff the leased lots, and gave encouragement to the plaintiff to maintain those lots.

The plaintiff accepted that the deceased was, in his opinion, an honest person: T 34.7-9.

Why would the deceased, an apparently honest person, make statements of testamentary intention to the plaintiff, particularly after making her last Will, which were contrary to the terms of the last Will (as I have construed it)?

There is some evidence that reveals the deceased’s immediate thinking behind the testamentary disposition of her real property in the last Will.

In his second affidavit sworn on 24 August 2023 (approximately three weeks before the commencement of the hearing), Mr Doyle, upon reflecting on his recollection of events, indicated that he was prompted on re-reading the last Will (and in particular cl 9) to recall part of the conversation he had with the deceased while taking instructions: CB 307[6]. His evidence included the following (CB 307-308[8]-[10]):

Mr Doyle, in the context of being cross-examined about whether he had taken steps to confirm the deceased’s intention was to limit the gift of “Dingadee” to lot (a), responded by confirming that he had read out cl 7.3(a) to the deceased and raised with her the fact that there was an imbalance as to the differences in the areas concerned: T 363.25-44.

He was then cross-examined about the above conversation deposed to in his 24 August 2023 affidavit and the wording of cll 9.1 and 9.2.

Specifically, Mr Doyle gave the following evidence (T 365.22-31):

His evidence in cross-examination relatively accords with his affidavit evidence.

I accept Mr Doyle’s evidence regarding this issue. Whilst he questioned the deceased as to the disproportionality of the gifting of her real property, it is evident that there was no more elaborate testing by him as to whether what the deceased was doing was inappropriate or contrary to any other matters restraining her ability to dispose of her estate as she chose and, in particular, contrary to any alleged promises of inheritance she had made.

Accepting, as I do, that the deceased did make promises to the plaintiff, it is not easy to completely rationalise why the deceased did not give effect to the promises in her last Will. However, that is not an insurmountable obstacle to relief. At least two observations can be made regarding the apparent inconsistency.

First, the nature of claims against the estates of deceased persons is such that the Court will necessarily not have the deceased available to be examined about her motives and, in that sense, the Court has an incomplete picture of the deceased’s rationale for acting as she did.

Secondly, in her submissions on rectification, Ms Fendekian submitted that the deceased had a long-held view that the viability of the Kennilworth operation depended upon access to lots north of Stroud Hill Road: DCS [110]-[111(a),(c),(d)]. If it is the case that the deceased held that view, then it might be that the deceased, albeit conscious of promises that she had made to the plaintiff, was also conscious of ensuring that the defendant had sufficient land and access to have a viable farming operation, initially in 2005 (see file note of 8 March 2005: CB 590-591) and relevantly when making her last Will (see file note of 22 October 2010 with the notation “Bennets [sic] for access to Yates”: CB 897). In that regard, she might well have considered that the lesser of two evils was to decline to make good the promises to the plaintiff, in order to ensure that the defendant (from her perspective) had enough land and access to the Kennilworth lots. I do not need to form any concluded view regarding that. It simply suffices to indicate that there are potential explanations as to why the deceased acted in the way that she did.

Overall, having scrutinised the plaintiff’s evidence and the evidence of the other witnesses, and having considered the total evidentiary mosaic, I accept the plaintiff’s evidence regarding the deceased’s initial promises and subsequent promises of inheritance.

Insofar as the promises had been made by the deceased, and Jim prior to his death, there is evidence, which I accept, that the deceased intended shortly after Jim’s death that she would assume responsibility for, and keep, those promises: CB 108[169].

The initial promises, namely, that the plaintiff would in effect receive half the farm, were not ultimately articulated in terms of precision. Thus, none of the initial promises specified particular lots.

What Jim and the deceased, and more particularly the deceased, intended as to the division of “half the farm” when making the initial promises was never made precisely clear in the evidence, other than by reference to “separate farms”: CB 100[122]. However, I do not regard that as being fatal to a characterisation of the promises being “clear” or “unambiguous”. Nor do I regard it as being fatal to the requirement that the promises be intended to have sufficient seriousness to have binding consequences.

What can be said is that there was a realisation in the plaintiff’s parents, as expressed to him from an early stage, that the promises of “half of the farm” were not intended to be some theoretical pledge of inheritance but something of ultimately realistic use to the plaintiff. In the deceased’s presence, Jim expressed to the plaintiff, at least in early 1987, that for half of the farm to be of practical use, they needed to continue to buy adjoining land. On this occasion, the deceased discouraged the plaintiff from purchasing elsewhere and indicated that they would find a spot for him on the farm: CB 97[100].

In addition, it is evident that the plaintiff’s parents, in the search for further land, expressed to the plaintiff in early 1990 that the accumulation of landholding was important for the viability of farming operations for the plaintiff and the defendant. The plaintiff’s evidence, which I accept, is that (CB 100[122]):

Thus, in respect of the initial promises, although a precise division of landholding was never specified, there is sufficient material in the evidentiary mosaic to reject the notion that the deceased and, until his death, Jim would have intended the plaintiff and the defendant to have been effectively joint co-owners of the entirety of the land, forcing them to effectively operate any farming operations and hold land together.

However, clearly enough, the promises appear to have been subjected to the exigencies of farm management decisions made by Jim and the deceased, including:

The plaintiff did not contend that any of those management decisions were impermissible steps taken by his parents (in the sense of being in conflict with the promises made to him).

In practical terms, what might have been lacking in the initial promises in terms of precision, namely, what constituted “half the farm”, was arguably met and solved by a readily quantifiable promise in the form of the “leased areas”. An example of this was the conversation that the plaintiff had with the deceased in mid-2012, where he made a complaint that the deceased was spending “all the money” on the Kennilworth side of the road and nothing on his “side”, being the area north of Stroud Hill Road. In that conversation, the deceased recognised not merely a physical separation of land but also that the plaintiff and the defendant were to operate separately without interfering with one another, stating (CB 115[201]):

Ultimately, I consider that the estoppel requirement of a promise with sufficient clarity and seriousness is met by the deceased’s promise that the plaintiff would receive the leased areas or lots.

I am less convinced as to a claim that the relevant promise included half of the livestock, motor vehicles, machinery, plant and equipment owned by Jim and the deceased initially, and then subsequently, by the deceased.

The initial promises did not deign to provide clarity regarding livestock, motor vehicles, machinery, plant and equipment.

Mr Birtles submitted that the concept of a farm including not merely land but also plant and equipment, machinery and livestock derives some support from early conversations in which Jim had said to the plaintiff, in the discussion in which the deceased was present, “[i]f we purchase Dingadee Dairy there will be two dairies - one for you and one for Wayne” (CB 92[63]): T 396.29-39.

Mr Birtles referred to the plaintiff’s evidence that his expectation, right up until the date of the deceased’s death, continued to be that he would receive one half of the farm including plant and equipment, machinery and livestock, and that the leased lots would form part of his share of the farm. Mr Birtles noted that following the closure of the dairies, the plaintiff continued to use the deceased’s machinery to maintain the leased lots. However, there was a point of time at which he was not able to continue to do so, as the keys had been removed from the machinery (by the defendant). Mr Birtles accepted that the plaintiff did not have use of the deceased’s machinery after 2012, and acknowledged that the case for the plaintiff to receive a share of those things might not be as strong because of the changed circumstances: T 421.32-40, 421.46-48.

As management decisions were made by the deceased, a promise of the leased lots did not self-evidently extend to those items.

In the end, the plaintiff no longer pursued a claim for the machinery, plant and equipment or livestock as part of the estoppel case: T 425.15-17.

Importantly, the subsequent promises of the deceased to which I have referred and accept were made, were in context references to the whole of the “leased lots” (CB 116[207]), otherwise described as being the “leased areas” (CB 111[184], 115[201]) or leased “land” (CB 115[202], [203]).

In defending the estoppel claim, neither the defendant nor Ms Fendekian sought to make out a case that the subsequent promises related to anything other than the whole of the 10 Dingadee lots, as well as the 4 Kennilworth leased lots (i.e. the 10 Dingadee lots plus lots (k), (l) and (m), and part of lot (o)), as distinct from a subset of those lots.

Ms Fendekian submitted that the plaintiff needs to satisfy the Court that the alleged statements (assuming they are found to have been made) amount to more than a mere statement of present (revocable) intention and are tantamount to a promise: DCS [139]. She submitted that the plaintiff’s account of the conversations falls short of establishing anything more than a statement of present revocable intention, citing Young CJ in Eq (as his Honour then was) in Barnes v Alderton [2008] NSWSC 107; (2008) 13 BPR 25,281 at [58]: DCS [143]-[144].

In cases of estoppel by encouragement, particularly where the promise is of inheritance, a factual question arises as to whether the representation or promise is merely a statement of present (revocable) testamentary intention or is instead tantamount to a promise.

In Kramer, Ward P stated (at [133]-[137]) as follows:

Sometimes, evidence on this issue is addressed with evidence on the issue of whether the representor made the representation or promise at all. However, often the factual material which bears upon this question is also relevant to the question of the representor’s knowledge of whether (relevantly) the promise is being relied upon.

The context of the initial promises and the subsequent promises satisfy me that the deceased’s words and acts would reasonably have conveyed to the plaintiff that her promises were intended to have binding effect. The context for the promises included the plaintiff having to make significant life decisions about career choices and where he would establish his permanent family home, as well as the plaintiff committing significant time and money over many years to the operation of the farms.

As noted above, the meaning and effect of a representation must be determined objectively according to the impact that whatever is said may be expected to have on a reasonable representee in the position and with the known characteristics of the actual representee.

Little evidence was adduced as to particular characteristics of the plaintiff at the time of the initial promises in 1969. His circumstances included the following: (a) he was about 18 years old and, for the prior 11 years (from about 7 years old), he had worked on the farm and helped with the dairy; (b) he was involved in the manual work and Jim took the time to teach him about the farming operations; (c) on weekends he forwent the playing of sport at Jim’s request to help on the farm; and (d) he was a bright student who had received an offer to study medicine at the University of Sydney: CB 83[24]-84[29]. It is evident that he was immersed in the life of the farm, intelligent and conscientious, but eager to embark upon a career in medicine.

Other than as indicated above, the evidence did not disclose any emerging traits of the plaintiff in the next seven to eight years until 1977. The known characteristics of the plaintiff noted above endured through his twenties. His circumstances at the time of the promises in 1977 included those mentioned above and the following: (a) he had declined the offer to study medicine (based (he says) on the promise of the deceased that he would receive half the farm: CB 84-85[30]); (b) from March 1970 until September 1977, he was a student at the University of Newcastle, boarding in Mayfield during the week, and returning home to the farm each weekend and for the university holiday periods to assist with the Kennilworth Dairy operations by performing various farming tasks, without remuneration; (c) he had completed his Bachelor of Science degree with honours, been awarded a scholarship for his PhD studies and submitted his PhD thesis which had been accepted without amendment in October 1977; and (d) he had received an offer of a postdoctoral fellowship at Florida State University: CB 85[33]-87[39].

It should not be readily thought that the initial promises made in 1969 and 1977, when the plaintiff was making formative study and career decisions, were mere revocable statements intended to have no enduring consequences.

The detailed evidence of the 1969 and 1977 initial promises makes it clear that the context of the plaintiff forgoing the opportunity to study medicine and forgoing the opportunity of a postdoctoral fellowship were serious events. The deceased was regarded by the plaintiff as an honest person: T 34.7-9. The plaintiff was a hard-working and intelligent young adult.

The simple terms of the plaintiff’s conversations with his parents ought not belie the seriousness of the content of their discussions. There is nothing to seriously suggest that the plaintiff’s parents were persons given to making statements about their property and testamentary intentions lightly.

The significance of what the plaintiff was being asked to forgo in 1969 and 1977, at the time that the promises were made, speaks to the likelihood and tenor of the promises being real and not illusory, enduring and not fleeting. It would have been cruel (see e.g. Kramer at [166] referencing Robb J’s finding at first instance) for Jim and the deceased’s statements to have been revocable, unless they were openly expressed to be so. It must have been clear to the plaintiff’s parents that his forgoing of the opportunities to study medicine and to take up the postdoctoral fellowship were decisions which would have lasting consequences for him.

The 1977 discussions were not an isolated event. There were about four or five discussions, spanning much of the period of December 1977 and early January 1978, in which the postdoctoral fellowship offer was being considered and wrestled with by the plaintiff. His decision was being informed by strong encouragement and pleas of his parents to stay and make his life on the farm. The conversations were transparently frank.

I recount below the palpable relief of the deceased and Jim when the plaintiff informed them of his decision to stay, which he expressly said was based on the promise of receiving half of the farm one day, enabling him to have some security of his future and allowing him to explore research options locally.

I find that, objectively, the impact of the deceased and Jim’s promises would have conveyed to a reasonable representee in the position and with the known characteristics of the plaintiff that they were intended to have binding effect.

It would have been disingenuous for the deceased and Jim to have remained silent on those occasions if they had not intended the promises to be binding, or to have failed to warn the plaintiff that they, or their survivor, could give no undertaking or assurance as to the plaintiff’s inheritance of half of the farm.

The fact that the initial promises and the subsequent promises were repeated on various occasions reinforces the likelihood of the promises being intended at the outset, and intended at each repetition, to be binding. The context in which the promises were repeated were situations apt to buttress the binding nature of the promises by reference to the plaintiff establishing his permanent family home on the farm, the work being done by the plaintiff in building up the farms and the efforts of the parents to acquire land to ensure that there would be separate farms to leave respectively to their two children.

The estoppel case was presented holistically and part of the context of the subsequent promises is not merely the making of the promises but the fact that the initial promises had already been acted upon. Much of the context of the subsequent promises involved the plaintiff showing work he had done to the deceased and her encouraging him to continue such work based on the promise of inheritance. That context speaks to and underpins the binding nature of the promises.

The conversation, which I recounted above, in which the plaintiff said to the deceased that she was spending “all the money” on the Kennilworth side of the road and nothing on his “side”, being the area north of Stroud Hill Road (CB 115[201]), is relevant not merely to the notion that the deceased envisaged an importance of there being two farms and of the plaintiff and the defendant operating separately without interfering with one another, but also to the seriousness of what was being stated and its binding nature. Specifically, that the deceased wished to reassure the plaintiff that, despite the imbalance in expenditure between the two sides of the farm, he would inherit what was promised.

I find that, objectively, the impact of the deceased’s subsequent promises would have conveyed to a reasonable representee in the position and with the known characteristics of the plaintiff that they were intended to have binding effect. The subsequent promises were, I find, not mere statements of present intention of provision but an assurance of provision.

Lastly, on this issue, Ms Fendekian referred to a conversation that the plaintiff had with the defendant after the deceased’s death, during which he expressed some concern that the solicitor who prepared the last Will might not even know that he existed: T 34.7-9, 27.6-29; DCS [145]-[146]. That conversation does not support Ms Fendekian’s submission that the plaintiff may have believed that he was not mentioned in the last Will. I do not consider that the plaintiff’s concern (about whether the solicitor with whom the deceased had made her last Will knew of his existence) negates any suggestion that any of the promises made to him were understood by him to be irrevocable.

Outlined below is the essence of the plaintiff’s evidence regarding the work he has done, and life choices he has made, in reliance upon the initial promises and the subsequent promises, which evidence, at least as to the substance of it, I accept.

From approximately 1958 through to March 1970, the plaintiff worked on the farm (then the Kennilworth Dairy) assisting Jim on weekdays before and after schooling, on weekends and during school holidays: CB 83[25]-[26].

As referred to above, the plaintiff declined the offer to study medicine at the University of Sydney in December 1969 and instead pursued a degree in science at the University of Newcastle so that he could be close to the farm: CB 84-85[29]-[31]. Subsequently in early January 1978, he decided to decline the offer of a postdoctoral fellowship at Florida State University for the same reason: CB 87[39]-90[51].

The plaintiff undertook various farming tasks (including milking, slashing, animal husbandry and spraying of weeds) from March 1970 until September 1977, while he was a student at the University of Newcastle: CB 85-86[33].

The plaintiff continued to undertake various farming tasks (including operating farm machinery, slashing, animal husbandry, spraying of weeds and repairs and maintenance of fencing) from September 1977 (when he had completed his PhD) until June 1979, for which he was paid a minimum wage of approximately $300 per week: CB 90[54].

In late 1978 or early 1979, the opportunity to purchase lot (a) arose. The plaintiff offered to contribute about $26,000 to the purchase (which was all he had at the time), for which his father indicated that he would get a percentage of the income generated by the dairy as well as the house on the block which could be rented out: CB 92[61]-[62].

Lot (a) was purchased in March 1979 with the plaintiff contributing all of his savings of $26,000: CB 92[64].

Following the purchase of Dingadee Dairy, some of the work for which the plaintiff says he was unremunerated (which evidence I accept) included the following:

When purchased, Dingadee Dairy was an operating share farm with an existing herd of cattle. The plaintiff’s parents entered into a share farming agreement with Mr Sullivan and received income from both the dairy and the rented house on the dairy: CB 93[66].

Shortly after the plaintiff’s parents took possession of Dingadee Dairy, Jim requested the plaintiff to forgo his share of its profits. The conversation was as follows (CB 93[67]):

In early 1986, the plaintiff and Barbara were living at Richmond, and were considering purchasing land in the Hawkesbury Valley or the Blue Mountains area to build a home for their family (which by that stage included both Stuart and Andrew): CB 97[96]. Whilst visiting his parents over the Easter period in 1986, the plaintiff had a conversation with them to the following effect (CB 97[97]):

The plaintiff indicates that he decided not to proceed with purchasing land in those areas because of the promise made to him by his parents that he would inherit one half of the family farm: CB 97[98].

Then, in early 1987 when the plaintiff and Barbara were considering purchasing property in the Fosterton area, the plaintiff had a similar conversation with his parents and decided not to proceed with his proposed purchase based on the promise of inheritance: CB 97[100]-98[101].

Subsequently in around September 1987, the opportunity came up for Jim, the deceased and the plaintiff to purchase a sizeable piece of adjoining property north of Stroud Hill Road, being Lot X in DP XXXXX. The land was purchased and, in the period from December 1987 to December 1988, the plaintiff spent approximately 400 hours improving the Lot by removing rocks, fallen trees and weeds, ploughing the land and planting ryegrass and clover: CB 98[106]-[109].

In September 1988, Lot X was subdivided into Lots XX and XX, being respectively lots (b) and (c), with his parents retaining lot (b) and the plaintiff and Barbara taking lot (c). They built a house on lot (c), which they named “Amberley Park”: CB 99[113].

From 1987 to 1995, the plaintiff’s parents paid to him and Barbara a total amount of $60,050 for the use of lot (c) as part of the Dingadee Dairy operation, which he asserted was a reduced rent for use of the lot, and from 1995 his parents paid him the sum of $200.00 per annum, which he described as a “peppercorn rent”, for the use of the lot (c) for the Kennilworth Dairy: CB 100[119], 126[5], 102[133]. The plaintiff asserted that he agreed to the reduced rent because of the initial promises made by his parents.

Between June 1989 and 2006, the plaintiff assisted with the Kennilworth and Dingadee dairy operations by, without remuneration, spending four to five hours per week performing tasks, including: (a) filling in for farm employees when they took leave; (b) operating and maintaining farm machinery; (c) slashing and pasture improvement; (d) spraying of woody weeds (blackberry, lantana, etc.); (e) animal husbandry; (f) repairs and maintenance of fencing; (g) negotiating financial compensation for power line easements; (h) moving cattle from the dry run area closer in to the dairy; and (i) milking cows and working in the dairy: CB 100[123], 90[54]. From about 1993, Stuart and Andrew assisted with those tasks: CB 100[124].

In the period from March 1993 through to December 1998, the plaintiff set out in his affidavit considerable detail of work that he performed on a number of the Dingadee lots, including:

After the purchase of lots (g) – (i) they were incorporated into Dingadee Dairy, and the internal fences were adjusted. The half of the area closest in location to the dairying bails on Dingadee was used as pasture paddock for the lactating cows, and the other half was used to graze the dry cows: CB 101[127].

Between approximately November 1995 and June 1999, the plaintiff recounts conversations with Jim in which his father requested him to undertake certain tasks in respect of lots (d) and (h). The plaintiff (often with his son Andrew) completed that work in accordance with his father’s requests: CB 103[138]–105[147].

From 1999, the plaintiff (with his sons) increased his work on the farm as his father suffered pain and had difficulty with movement in his knee. This work included assisting with manual tasks such as milking cows, feeding cows, rearing young calves and tending to sick cattle, amounting to approximately 10 hours of additional assistance per week: CB 103[136].

In late 2001, following a dinner discussion with his parents in which the initial promises were repeated and Jim expressed his wish for the plaintiff and his sons to take over the Dingadee Dairy, the plaintiff subsequently obtained and showed his parents a brochure on a tractor (in order to start the operation) and says that his father did not raise the issue again: CB 106[155]-[156]. However, in 2002, Jim and the deceased closed the Dingadee Dairy: CB 106[157].

I found this a somewhat curious aspect of the evidence. It seemed odd that Jim would have raised with the plaintiff the possibility of him taking on the dairy but, when the plaintiff took some steps to do just that, Jim closed the dairy. I asked the plaintiff about this. He gave an explanation which, to my mind, made some sense of Jim’s decision. He indicated that the dairy industry was in a state of restructure at that time and there was uncertainty around deregulation, and accordingly it was no longer profitable to continue to operate the Dingadee Dairy. The plaintiff went on to indicate that, in a practical operational sense, the land that had been used for the Dingadee Dairy operation was then used in conjunction with the Kennilworth land to operate the Kennilworth Dairy: T 115.

From January 2002 to December 2002, the plaintiff spent approximately 200 hours improving lots (a), (d), (e) and (f) by removing broken fences, slashing, removing blackberry, lantana and privet and maintaining creek crossings: CB 105[152].

From August 2002 to February 2003, the plaintiff spent approximately 300 hours improving lot (j) by removing privet, blackberry, lantana and black wattle trees, removing broken barbed wire fences, establishing creek crossings, chisel ploughing the land and planting ryegrass and clover: CB 105[150].

In mid-February 2005, following Jim’s sudden death, the plaintiff had morning tea with the deceased and they discussed the requirements of the day-to-day farming operations, particularly the twice daily milking operation and how they would be managed going forward. The conversation was to the following effect (CB 108-109[169]):

From the time of his father’s death until May 2005, the plaintiff continued to spend, without remuneration, around 10 hours a day working full-time on the farm, which involved conducting the twice daily milking operation and other associated farm operations with Mr Shepherd. The plaintiff states that he did this believing that he would inherit one half of the family farm: CB 109[170].

Whilst the plaintiff was cross-examined to the effect that he would have assisted his mother in any event following Jim’s death, I do not consider that his willingness to assist the deceased can be so easily disentangled from any reliance on the initial promises. The plaintiff’s evidence was that he worked with Mr Shepherd during at least that three-month period until May 2005 because he would inherit half the family farm: CB 109[170]. I accept that his motivation for doing so was not exclusively tied to being a dutiful son, nor does the law require that.

Between February 2005 and when the Kennilworth Dairy closed (in about December 2006, as noted above), the plaintiff assisted with dairying operations on Kennilworth on at least 20 occasions at the deceased’s request: CB 111-112[186].

From around 2006, the plaintiff commenced maintaining the leased lots. He says that the deceased did not maintain those areas nor arrange for others to maintain them. With the exception of a set of portable prefabricated steel cattle yards, she also did not make any capital improvements to the leased lots: CB 111[181].

The plaintiff gave detailed evidence of work he conducted from around 2006 when he started to maintain the leased lots: CB 111[181]-[184].

The plaintiff indicated in evidence, which was limited to his perception, that the deceased’s representations regarding the leased lots represented a practical division of the deceased’s estate into two areas, each being large enough to have an economically viable farm for each of himself and the defendant: CB 111[185].

In the period from June 2006 to May 2007, the plaintiff arranged for fencing contractors to complete subdivision fencing to enable the improved management of lots (j), (m) and (o), which are part of the leased lots. The fencing costs of $14,392 were paid by Apace, on his behalf: CB 111[182], 640, 739-742. However, those costs were treated as a loan by Apace to the plaintiff and the sum was repaid by deductions from his salary over a period of years: CB 111[182]; T 162.18-163.14.

From time to time, the plaintiff attended upon his mother and drove her to the leased lots, where he showed her the maintenance work he was doing.

For example, in or around December 2008, the plaintiff drove the deceased around the leased lots and showed her the maintenance work he was doing, which work included clearing blackberry, lantana, tobacco bush and privet from along the banks of Cherry Tree Creek in lot (j): CB 111[184].

Following Jim’s death, the plaintiff continued to carry out maintenance work, which included slashing, removing animal carcasses and cleaning up after storm damage, in respect of lots (j) and (b) and part of the Kennilworth lots, being lots (k) and (o): CB 114[195]. This work was completed both by himself and on occasion with his sons and a casual labourer.

In September and October 2017, the plaintiff arranged for earthmoving contractors to remove debris and clean up the site on lot (a) where a large service shed had been destroyed in a windstorm, and for electrical contractors to reconnect power: CB 114[196]-[197].

In April 2020 the plaintiff and his sons, together with a casual labourer, attended to the spraying and removal of woody weeds (including blackberry, lantana, privet and tobacco bush) on lots (h), (j) and (k): CB 116[208].

In the period from 2012 to 2021, the plaintiff paid casual labourers an average of $500 per year to assist him with the maintenance of the leased lots: CB 114[198]. In the period from 2006 to 2021, the plaintiff also spent at least 200 hours a year maintaining the leased lots, which work included: slashing; woody weed control; rock removal; repairs, removal and maintenance of fencing; removal of animal carcasses; establishment and maintenance of creek crossings; and cleaning up after storms and floods: CB 114-115[199].

From 2006 until 2012, the plaintiff used the deceased’s machinery to maintain the leased lots on all but a few occasions. Since 2012, he has used machinery owned by Apace and engaged casual labourers to maintain the leased lots, as well as his own land: CB 115[200].

The plaintiff had given evidence that, from 2008, the deceased had maintained and made significant capital improvements to the Kennilworth land area used by her for her cattle raising operation: CB 112[188].

In mid-2012, in a context in which (as noted above) it became apparently difficult for the plaintiff to use the deceased’s machinery to carry out the maintenance work, he attended at the deceased’s house at Kennilworth and had a discussion with her as follows (CB 115[201]):

Ms Fendekian cross-examined the plaintiff about this incident, raising the prospect that it might have been potentially a heated moment for him. On one view merely from the plaintiff’s affidavit, the incident appeared potentially confrontational. However, my impression of the plaintiff following his being cross-examined regarding this issue (T 131-136) is not untoward. He frankly conceded that he was frustrated at the time but not angry: T 136.45–137.2. He essentially accepted the lack of expenditure “as the reality and got on with it”: T 137.7.

Essentially the plaintiff’s case for reliance in respect of the initial promises and the subsequent promises focuses upon five categories of reliance and detriment, being:

By and large, the plaintiff’s case for reliance in respect of the initial promises and the subsequent promises was supported by his affidavit evidence and that of his children, in particular his sons. Generally I accept both his evidence and their evidence in respect of the works he carried out.

Ms Fendekian submitted that the alleged representations made in 1969 and in late 1977 were made at times at which the farm did not include lots north of Stroud Hill Road: DCS [148(a)-(b)].

To the extent that the farming land was added to from time to time, it is not necessary for all of those assets, or those which are the subject of relief, to have been identified at the time of detrimental reliance. That some assets encompassed by the expectation were acquired after the point of detrimental reliance would, on that view, merely inform the nature and extent of the appropriate relief: see Q v E Co at [80] per Meagher JA (Leeming and Payne JJA agreeing).

There are cases in which courts have accepted that the extent of property identified by assurances or promises referable to inheriting “the farm” is sufficiently certain in a context in which the claimant and the deceased knew that the extent of the farm was liable to fluctuate from time to time. The mutual understanding is that the inheritance would relate to the extent of the farm as it would exist at the time of the deceased’s death. In such cases, the ultimate landholding provides identified property with sufficient certainty about the subject matter so as to found a proprietary estoppel: Thorner v Major at [62] per Lord Walker of Gestingthorpe.

I consider that the initial promises made by Jim and the deceased were ambulatory and came to attach to and include farm properties as they were acquired: CB 97[100], 100[122]; see e.g. Q v E Co at [71]-[80].

Viewed holistically, I find that there was continuing detrimental reliance by the plaintiff on and from the acquisition of each of the after-acquired properties: Q v E Co at [86]. The plaintiff does not need to establish “separate estoppels” in relation to the after-acquired properties.

Ms Fendekian submitted that by 26 April 1980, when the plaintiff married Barbara, his key life decisions as to his career (namely, undertaking scientific research in renewable energy technologies) and family (namely, a life together with Barbara) were settled: DCS [149].

Whilst it is true that those decisions might have been settled, I do not consider that that is an effective answer to the plaintiff’s estoppel claim: Q v E Co at [84]. At least part of the reason why the plaintiff’s career took the course that it did is because he elected not to pursue the study of medicine or undertake the postdoctoral fellowship. These were both decisions made at the request of his parents (including the deceased) and in reliance upon the initial promises.

Ms Fendekian submitted that the plaintiff had not stated in his evidence that he had any aspiration to be medical doctor: DCS [151]. Yet, the plaintiff stated that, if the promise had not been made by the deceased, he would have accepted the offer to study medicine in Sydney: CB 84[30], 121[247]. If what is meant by Ms Fendekian’s submission is work only as a practising medical doctor, I do not accept the submission. The study of medicine may have opened a number of opportunities for the plaintiff which were not necessarily limited to work as “a medical doctor”. I do not regard the plaintiff’s indication that he has a strong interest in medical research (CB 121[247]) as necessarily neutralising the effects of the plaintiff’s decision, based on the initial promises, not to study medicine.

Further, the fact that the plaintiff agreed with the proposition that his role at Apace (CB 91[58]) “sounds like interesting and important work” does not, per se, undermine the significance of the career choices that the plaintiff made based on the initial promises: cf DCS [151].

I have referred above to the evidence regarding the plaintiff’s forgoing of educational and career opportunities under the heading of issue 6, regarding binding effect, and will not repeat what I said above in that respect.

In testing the plaintiff’s evidence, Ms Fendekian posed a “counterfactual case”. The counterfactual related to the plaintiff’s evidence that, between June 1989 and 2006, the plaintiff assisted with the Kennilworth and Dingadee Dairy operations by spending four to five hours per week performing farming tasks without remuneration: CB 100[123]. The plaintiff, whilst accepting that he provided that assistance at least partly on the basis that it was “what any decent son would do” and was consistent with his “Christian ethic”, indicated that he did so on the basis that he would one day inherit half the farm: T 160.18-161.39. He disputed the counterfactual put by Ms Fendekian that, if nothing had been said about future inheritance, he would have assisted the deceased in any event. He further indicated that, if the promises had not been made, he would have been studying medicine and would not have been on the farm: T 161.41-162.16. I accept his evidence in that regard.

I had wondered whether part of the work that was being carried out by the plaintiff on the leased lots was covered by lease or licence provisions which required the lessees or licensees to undertake maintenance work. However, apart from the couple of agreements which I have referred to above, no other lease and/or license agreements were adduced in evidence. In any event, the plaintiff indicated that it did not particularly occur to him whether legal obligations under the leases or licences required the tenants to maintain the land. He was unaware of the terms of the agreements and proceeded on the basis that the maintenance of at least boundary fences was the responsibility of the landowner: T 132.

Mr Birtles submitted that one way of viewing the plaintiff’s actions in that respect was that it was evidence of his expectation, in the sense that he was acting as though he were the owner of the property and not having regard to the terms of any leases: T 418.8-15. It seems to me that there is some force in that submission.

In any event, as I have already accepted, the deceased gave the plaintiff encouragement to continue the maintenance work.

From 2006 to 2021, the plaintiff informed the deceased of the work he was carrying out and gave evidence of her positive reaction to it. I have referred to the evidence above: CB 115[202]-[203].

In August 2018, the deceased had a fall at a shopping centre, suffering two broken shoulders which led to surgery at John Hunter Hospital. As a consequence of that, the plaintiff indicates that she became effectively housebound and was no longer able to travel around the farm with the plaintiff in his four-wheel-drive vehicle: T 115[205]-[207].

From that time, the plaintiff took photos of the leased lots with his drone to show his mother and, in the period from August 2018 to 2021, he visited the deceased approximately every six months at her home to show her photos of the leased lots. He indicated that the deceased said to him (CB 116[207]):

As referred to above, in April 2020 the plaintiff, his sons and a casual labourer attended to the spraying and removal of woody weeds on three lots within the leased area, being lots (h), (j) and (k). Shortly afterwards he visited the deceased at her home and showed her photographs of the maintenance work, to which she said (CB 116[209]):

Whilst conceptually it is possible that some people might do a small degree of slashing, woody weed control and removal rocks and animal carcasses to assist a parent as a “decent thing to do”, the plaintiff’s evidence (which I accept) is that, in light of the statements the deceased made to him regarding the leased lots, he believed that they would be left to him in her Will (CB 116[210]), and that he would not have continued to invest his money, time and effort in maintaining the leased lots if the deceased had not promised him that those areas would be his: CB 122[252]. This is consistent with the plaintiff’s evidence on Ms Fendekian’s “counterfactual” case which I have referred to above: T 160.18-161.39. The defendant did not proffer any particular reason why the plaintiff might have done those tasks absent any promise.

Overall, I find that the plaintiff did rely on the promises both by:

I have referred above to the principles regarding intention to create legal relations and specifically to the question addressed in Kramer of whether, in relation to a claim based on estoppel by encouragement, it is necessary to show that the deceased had actual knowledge of the plaintiff’s reliance.

I am satisfied that, from the time that the initial promises were made, it was clear to both Jim and the deceased (in the sense that they actually knew), and later it was clear to the deceased after Jim died, that the plaintiff was acting in reliance on the initial promises.

First, the conversation in December 1969 which I have set out above (CB 84[29]) makes it clear that there was an actual request by the deceased to not take up the offer of studying medicine which was connected to a promise of “half” of the farm if the plaintiff stayed and helped on the farm:

It is evident and incontestable that the deceased actually knew that the plaintiff declined the offer, stayed at or close to the farm and attended the University of Newcastle studying science instead.

Secondly, the plaintiff’s forgoing of the opportunity to take up the postdoctoral fellowship at Florida State University was similarly in a context in which his parents had counselled the plaintiff against taking up the opportunity so that he could stay on the farm. It could not realistically be thought that his parents did not actually know, or clearly ought not to have known, that the plaintiff forwent a vital career opportunity in reliance upon their request that he stay and help on the farm, underpinned as it was by the promise of inheritance.

Notable parts of the evidence include the following.

The fact that the opportunity for the postdoctoral fellowship was significant to the plaintiff is made clear by his very animated response when told by Professor Walker of the offer: CB 87[39]. Indeed, accepting the different context as between discussions with his parents and discussions with the university professor, it was one of the few instances spanning over 40 years of the plaintiff exhibiting sheer delight at something.

After being informed of the offer by Professor Walker in late October 1977, the plaintiff had morning tea with his parents at the family home. The plaintiff recounts the conversation as follows (CB 87[40]):

In late November 1977, documents relating to the offer came through, including an application for entry to the United States of America, a work permit application and the other necessary documents for the plaintiff to accept the position at Florida State University. The plaintiff considered the potential career path from that position, which would involve progressing in various positions from Postdoctoral Fellow through to Emeritus Professor. Further, he considered the salary, superannuation and other financial benefits associated with each of the positions and was inclined to accept the offer: CB 87-88[41]-[44].

The plaintiff recounts various sets of conversations with his parents in December 1977 regarding the offer, in which they encouraged him not to take it and to stay on the farm instead. The first was with Jim on lot (s) (CB 88-89[46]):

The second was with both of his parents in the family home (CB 89[47]):

The third was with Jim whilst they were riding horses (CB 89[48]):

The plaintiff had two further similar conversations with both his parents in the period from mid to late December 1977. On one of those occasions, Jim said to the plaintiff (CB 89-90[49]):

The plaintiff considered his position and decided to decline the offer from Florida State University. The promise made by his parents that he would inherit one half of the farm was the reason, the plaintiff says, he declined the offer: CB 90[50].

Critically, the plaintiff explained to his parents that the reason for his forgoing of the opportunity was based on the promise that he would receive half the farm. The conversation in or around early January 1978, whilst the plaintiff was having morning tea with his parents in the family home (the gist of which I accept), was as follows (CB 90[51]):

I consider the above evidence and conversation shows the plaintiff’s parents actually knew, or clearly ought to have known, that the plaintiff forwent a vital career opportunity in reliance upon their promise of him receiving half the farm. The plaintiff’s announcement of his decision to his parents was linked to his reliance on the promise. Tellingly, the enthusiastic relief by his parents is palpable. Jim and the deceased’s responses reveal their appreciation of the plaintiff’s sacrifice and the benefit to them of the plaintiff remaining on the farm.

Even the defendant indicates that his parents lauded the plaintiff’s academic excellence. It cannot be seriously doubted that the plaintiff’s parents, and in particular, the deceased, would have realised that the forgoing of the opportunities in Sydney and Florida was of some real and significant sacrifice.

Thirdly, the conversations between 1980 and 1987, regarding the plaintiff’s opportunities to establish a permanent family home away from the farm, involved his parents repeatedly telling him that he should build his home on the farm as half of it would be his, which he ultimately did as part of a purchase and subdivision with them of what became lots (b) and (c).

Fourthly, the statement made by Jim in the early 1990s that I have referenced above (CB 101[125]) and was the subject of detailed cross-examination, in which Jim said to the plaintiff and Stuart “Keep going. What we are doing is worthwhile. This will all be yours one day”, evidences that Jim actually knew, or clearly ought to have known, that the plaintiff was relying on the promises.

Fifthly, the conversation in mid-February 2005 between the plaintiff and the deceased, in which they discussed the requirements of the day-to-day farming operations (particularly the twice daily milking operation and how they would be managed going forward), clearly shows that the deceased actually knew, or ought to have known, that the plaintiff was carrying out farm work in a context in which he would otherwise be doing Apace work. The deceased herself then links that knowledge to the promises of inheritance (CB 108-109[169]) as follows:

Sixthly, in relation to the subsequent promises, I consider that it is clear that the deceased actually knew that the plaintiff was relying upon the promises in respect of the maintenance work that was being carried out. I have set out the evidence regarding this above, including the following (CB 115[201]):

Even if I am wrong in relation to the actual knowledge of the deceased, the above matters, in my view, constitute sufficient evidence to satisfy the requirements of unconscionability and such, if any, constructive knowledge that may be required to give rise to an estoppel in cases of a claim based on encouragement.

Ms Fendekian submitted that the plaintiff cannot demonstrate reliance having regard to the evidence as to the plaintiff’s apparent apathy to a career as a farmer: DCS [140].

Specifically, Ms Fendekian submitted that there is scant evidence of the plaintiff responding to the deceased in a way that would be indicative of reliance on any (alleged) statements: DCS [147]. Indeed, the plaintiff’s apparent apathy to a career as a farmer was said by Ms Fendekian to negate any suggestion that the deceased knew or intended that he would rely on any of the alleged promises, noting it would have been clear to the deceased that the plaintiff had no aspiration to be a farmer: DCS [140].

The passages relied upon, with some additional context, were as follows (T 77.31-33, 99.36-100.26):

I do not regard the above passages as demonstrating, in any conclusive or decisive way, the apparent apathy on the part of the plaintiff towards being a farmer, nor demonstrating that the deceased knew or intended that the plaintiff had no aspiration to be a farmer.

In challenging the plaintiff’s case for detriment, Ms Fendekian focused on a number of aspects, including:

I will address the general challenge to the plaintiff’s evidence immediately below. I will deal with the countervailing benefits and proportionality issues under the heading of relief (issue 10).

The plaintiff asserts, and I accept, that he carried out the work I have outlined above under the heading of issue 7, dealing with reliance. The plaintiff’s evidence, which I also accept, was that the work was almost completely unremunerated. That constitutes detriment.

In addition to the farming and maintenance work that he completed, which I have outlined under issue 7, there were also one-off tasks that the plaintiff performed, without remuneration, when asked to do so by his parents, including the following (CB 102-103[135]):

The plaintiff’s case for detriment was supported by his affidavit evidence and, in my assessment, not relevantly affected by his cross-examination. I accept his evidence in respect of his forgoing of educational opportunities, profits and alternative family home opportunities. That latter evidence (of the plaintiff not proceeding to establish his family’s home elsewhere in reliance on the initial promises) includes:

Rather, the plaintiff and his wife decided to make their permanent family home on the family farm in 1987: CB 98[105].

I further accept the plaintiff’s evidence, and that of his children (in particular his sons), in respect of the works he carried out on the farm up until the closure of the dairies and, thereafter, in respect of the maintenance of the leased lots.

Contrary to the defendant’s assertion, I accept the plaintiff’s evidence that his parents did not reimburse him or Barbara for the $26,000 which he contributed for the purchase of lot (a): CB 271[86], 130[33]. I accept the plaintiff’s evidence that, in the period from 1987 to 1995, his parents paid him and Barbara an amount of $60,050 for use of lot (c) as part of the Dingadee Dairy operation, and that from 1987 to 2021 he received a total of $65,450 in rent or payments from his parents for the use of part of that lot: CB 126[5], 130[33].

Insofar as the defendant disputed the extent of the plaintiff’s work in respect of the disputed land, I accept the plaintiff’s evidence regarding the work he carried out: e.g. CB 131[35]-[36], 133[41], 134[48]-135[51].

An additional aspect of the detriment which the plaintiff claims is that (as I noted in the early part of this judgment) the deceased included in the Baker Family licence the land owned by the plaintiff, being part of lot (c) [Lot XX DP XXXXXX]. Precisely how that worked was not explored in the hearing. However, the plaintiff stated that he did not receive a share of the rent for the leased lots (except to the extent that it formed part of the total $65,450 which his parents paid to him between 1987 and 2021 for use of part of lot (c)). He stated (in evidence limited to be his state of mind) that he was willing to forgo any share of the rent because the deceased promised that he was to receive one half of the family farm: CB 110[178]. He further stated that he relied upon the deceased’s statements to him (regarding inheritance of the leased lots) in permitting part of his own lot (c) to be leased by the deceased to third parties from 2006 onwards for reduced rent, and in the time and money spent by him in maintaining the leased lots. He was not directly challenged on the evidence regarding the leasing of lot (c) to third parties. I accept his evidence.

Finally, as I have noted above, the subsequent promises related to the whole of the 10 Dingadee lots, as well as the 4 Kennilworth leased lots (lots (k), (l) and (m), and part of lot (o)), as distinct from a subset of those lots.

The plaintiff’s evidence, which I accept, is that he carried out maintenance work and otherwise spent money on the leased lots (CB 111[181], 111[184], 114[198]-115[200], 122[252]) – that is, the whole of them. In addition, the plaintiff gave examples of specific work carried out and money spent on particular lots within the leased lots, including lots (a), (b), (h), (j), (k), (m) and (o): CB 111[182], 114[195], 116[208]-[209].

Ms Fendekian tested the plaintiff in relation to his evidence generally and, in particular, tested to some extent the plaintiff’s understanding of where he was located when he had done certain things. However, Ms Fendekian did not challenge the plaintiff to the point of asserting that he had not done at least some work in relation to each of the (14) “leased lots”. Further, whilst Ms Fendekian made submissions in relation to proportionality of relief which I refer to (and address) below, the submissions did not (at least expressly) contend that the plaintiff should be denied relief because he had not done some work or spent some money on, or in relation to, one or more of particular leased lots. In any event, even if that challenge or submission had been made, I do not consider that it would be fatal to the plaintiff’s case.

The plaintiff pleaded that:

In respect of the estoppel claim, the principal relief sought by the plaintiff was framed in terms of what had been promised by the deceased under the subsequent promises, namely the leased lots. Specifically, the plaintiff sought:

The subject matter of the initial promises (namely, the claim for “half of the farm”) was sought only as alternative relief under the description in Prayer 5 of the further amended statement of claim. This was framed as being “one half of the deceased’s land, livestock, motor vehicles, machinery and plant and equipment”: CB 78D[5].

In the POS, Mr Birtles submitted that the subsequent promises, if carried out, are a substantial fulfilment of the initial promises: POS [54(n)]. Early on the first day of the hearing, immediately after the luncheon adjournment, I questioned Mr Birtles about the estoppel case to understand whether it was put essentially as an “all or nothing” claim or whether there was an aspect of the relief that was somewhere in between an “all or nothing” claim: T 37.

In describing the case, Mr Birtles indicated that the subsequent promises were a variation of the initial promises but that both sets of promises could sit together. He indicated that the leased lots could be viewed as a component of half of the estate. He accepted that there may be other permutations of a remedy which may not align with the plaintiff’s expectations based on the words that were used: T 38.25–39.13. Ms Fendekian’s understanding of the matter was consistent with the case as pleaded, noting that the initial promises were described in terms of being “half the farm”. That description of property is consistent with the plaintiff’s case as pleaded but also as set out in the claims for relief, which describe the farm as not merely being one half of the deceased’s land but also one half of the livestock, motor vehicles, machinery, and plant and equipment: CB 78D[5]; T 39.27–41.15. The claims for relief also include an alternative claim for equitable compensation: CB 78D[6].

At least in December 1969 and late 1977, the plaintiff’s description of the initial promises made to him was in terms of half of the farm being his (i.e. bequeathed to him): CB 84[29], 89[47]. He indicates that he declined the opportunity of educational prospects to remain on the farm at his parent’s request and based on those promises: CB 84[30], 90[50].

In respect of the initial promises, Mr Birtles distinguished between initial statements regarding “half the farm” and statements (albeit he described as to the same effect) that there would be two dairies, one for the plaintiff and one for the defendant: T 414.5-15.

Mr Birtles indicated that, when there were no longer two dairies, the promises (in the form of conversations between the deceased and the plaintiff) became more specific in terms of the leased lots being given to the plaintiff, which he said was a form of “half of the farm”: T 403.9-12.

Ultimately I asked whether Mr Birtles proposed to nail his colours to a mast of preference in terms of outcomes: T 420.18-20.

Mr Birtles indicated that there was a cascading series of possible outcomes, the first of which was “one half of the farm” which relevantly included plant and equipment, machinery and livestock: T 420.15-16, 420.37-41, 422.1-3.

In terms of the cascading claims for relief, he indicated that the next claim would be the totality of the leased lots, being the (10) Dingadee lots and the (4) Kennilworth leased lots: T422.24-25.

Mr Birtles accepted that there is far less evidence that the plaintiff worked on the Kennilworth leased lots compared to those on the Dingadee side: T 423.5-7.

I had expressed concern about what, practically, a solution of half the farm might look like: T 397, 422. As I understood him, Mr Birtles gravitated (or perhaps consolidated) to a submission that there needed to be some practical outcome and accepted that an allocation of lots was the only practical solution (leaving aside joint ownership or subdivision which I thought did not sound like very helpful outcomes: T 422.5-10). The only alternative put forward was equitable compensation calculated as the value of what the plaintiff ought to have received: T 422.12-20.

Ultimately, the plaintiff did not pursue a claim for machinery, plant and equipment or livestock as part of the estoppel claim. Rather, Mr Birtles was instructed to put two alternatives to try to minimise the practical issues.

The first option was a claim for the 10 Dingadee lots, as well as the 4 Kennilworth leased lots (first option). Mr Birtles acknowledged that, in that scenario, there would need to be a practical solution worked out involving subdivision in relation to that part of lot (o) which lay to the north of Stroud Hill Road and was part of the leased area. He indicated that enquiries indicated it could be consolidated with the other lots to the north: T 425.17-49.

The second option he put was a claim for all of the leased areas north of Stroud Hill Road being the 10 Dingadee lots, that part of lot (o) which lay to the north of Stroud Hill Road, and lot (m) (second option): T 425.49-426.17.

Ms Fendekian correctly notes that the plaintiff has not advanced any amount said to reflect, in monetary terms, the detriment he claims to have suffered in reliance on the alleged representations, nor has the equitable compensation alternative been quantified by the plaintiff: DCS [185].

It is not clear to me that the plaintiff persisted in a claim for equitable compensation. Even if he did, I was not provided with any reasoned submissions outlining principles and evidence from which to make any assessment for such compensation.

Ms Fendekian also submitted that it is not clear whether the relief sought by the plaintiff is in addition to the gift made to him in cl 8.3 of the last Will (namely, one-third of the balance of the estate): DCS [181].

In light of the plaintiff’s non-pursuit of the claim for machinery, plant and equipment or livestock as part of the estoppel claim, which items are gifted under cl 7.3(b) of the last Will to the defendant, the “balance” of the deceased’s estate available to be gifted under cl 8.3 consists of the eight items comprising the CBA and Westpac deposits, accounts and MasterCard totalling $1,550,230.80, according to the revised inventory of property.

Conventionally that balance is what is known as the “residue” of the estate.

Where the estate of a deceased person is solvent the deceased person’s real and personal estate shall, subject to the provisions of any Act as to charges on property of the deceased and to the provisions, if any, contained in the deceased person’s Will, be applicable towards the discharge of the funeral, testamentary, and administrative expenses, debts, and liabilities, payable thereout in the order mentioned in Part 2 of the Third Schedule of the Probate and Administration Act 1898 (NSW) (PAA): s 46C(2) PAA.

Section 46C(2) of the PAA is expressly made subject to the provisions of any Act as to charges on property of the deceased. Relevantly, in relation to mortgages on the deceased’s property, the effect of s 145 of the Conveyancing Act 1919 (NSW) (referred to at times as Locke King’s Act provisions) is that, subject to any contrary or other intention signified by the deceased, the recipient of property the subject of a mortgage would bear the burden of the mortgage debt.

There are no specific relevant directions in the last Will regarding discharge of the deceased’s funeral, testamentary and administrative expenses, debts and liabilities. There has been no suggestion by either party or counsel that the provisions of cl 8.2 of the last Will, which provides that cl 8 (dealing with the distribution of the balance of the estate) is subject to the discretionary powers given to the executors and other clauses in Part B of the last Will, give rise to any relevant direction.

There is potentially some anomaly in the evidence of the liabilities of the deceased’s estate. Evidence in the proceedings reveals property title searches indicating that, as at 15 June 2022, there are mortgages to Westpac on seven of the Kennilworth lots, being lots (k), (o), (p), (q), (s), (u) and (v): CB 1099, 1107, 1109, 1111, 1113, 1114 and 1118.

However, the total liabilities of the deceased’s estate, at least for the purposes of the application for administration, are disclosed in the executors’ affidavit as being $4,161.63: CB 1082-1083. I note that those are all unsecured liabilities. There are no secured liabilities disclosed. It is possible, in light of the above, that the indebtedness secured by the mortgages to Westpac had been discharged by the deceased during her lifetime, but the actual mortgages themselves have not been discharged. However, beyond the above, the evidence in the proceedings does not descend into detail regarding the deceased’s funeral, testamentary and administrative expenses.

The parties did not address any submissions to the effect of s 145 of the Conveyancing Act 1919 (NSW), perhaps because, despite the title searches showing mortgages, there is in fact no debt to Westpac. It suffices for me to note that, if there is any debt in respect of any of the mortgages to Westpac on seven of the Kennilworth lots (which include two lots subject to the plaintiff’s claim, being lot (k) and part of lot (o)), such debt would in the first instance be borne by the party receiving that lot.

Otherwise, the residue of the deceased’s estate would be liable for discharge of the deceased’s funeral, testamentary and administrative expenses, debts and liabilities. If the residue of the estate were to be exhausted by such debts and expenses, then the assets specifically disposed of by cll 5.1-5.4, 6.1 and 7.3 of the last Will would become liable rateably according to value: Third Schedule, Part 2, items 2 and 6 PAA.

Accordingly, subject to any adjustments that need to be made on account of interim distributions to the defendant, the plaintiff’s share of residue appears to be no more than one-third of $1,550,230.80, namely $516,743.60. I have no evidence of the expenses associated with the appointment of Ms Whitley.

In the above circumstances, all I can do is proceed on the basis that the plaintiff’s claim for relief in relation to the disputed land is in addition to his entitlement under cl 8.3 of the last Will, which is apparently no more than $516,743.60.

The subsequent promises of the deceased, which I have referred to and accept were made, were in reference to the whole of the “leased lots”. Ms Fendekian did not contend otherwise. Nor did Ms Fendekian seek to establish that the plaintiff had not done some work or spent some money, in detrimental reliance on the initial promises and subsequent promises, on any specific lot so as to exclude such lot from being amenable to relief in the plaintiff’s claim for the leased lots. As stated above, even if that submission had been made, I do not consider that it would be fatal to the plaintiff’s case.

The evaluative exercise of examining whether a party has suffered detriment does not require a narrow, balance sheet-like approach in which the opportunities available in the counterfactual are quantified and valued: Soulos v Pagones [2023] NSWCA 243 (Soulos) at [389] per Ward P, citing Hills at 600-601 per Hayne, Crennan, Kiefel (as her Honour then was), Bell and Keane JJ, and Meagher JA’s conclusion in Q v E Co at [157].

In Soulos, the claimant’s countervailing benefits included the rent-free accommodation which he enjoyed for approximately two decades, occasional payments for utilities from the deceased and the benefit of renovations partially funded from her: Soulos at [387]. Notwithstanding, Ward P found that such benefits were “not so significant” as to lead to a conclusion that no detriment had been suffered, noting the claimant’s detriment consisted of conducting his life, at least from his divorce in 1998, in reliance on the promise that the property in which he lived would be given to him, and his expenditure of money, time and effort in reliance on that promise: Soulos at [391].

In oral argument, Ms Fendekian referred the decision of Robb J in Daniel at [218] as authority for the proposition that one needs to consider the countervailing benefit to the plaintiff: T 461.44-47. In that case, however, Robb J found that the claimant’s benefit of accommodation at below market rate was not so significant as to obviate the detriment, which consisted of the claimant having restructured his life for 17 years to provide care and assistance to the deceased’s mother: Daniel at [219].

Ms Fendekian submitted that the work that the plaintiff had with Apace ultimately showed that the plaintiff benefited from his alternate choices, such that there was no real detriment from his decisions.

The plaintiff stated that he was aware, from his discussions with Professor Walker during his PhD studies, of the range of salaries available for the post-doctoral positions he forwent: CB 88[44].

In February 1979, the plaintiff co-founded Apace with Dr Richard (Dick) McCann: CB 91[57]. In early 1979, the plaintiff (in evidence which I accept) states that, whilst having morning tea with his parents, they had a conversation to the following effect (CB 91[59]):

There was some evidence of the plaintiff’s salary for part of the period after June 1979, when he commenced a paid position for his proposed work with Apace. He indicates that he was paid a subsistence salary totalling approximately $10,000 for the 1980 calendar year, and approximately $28,000 for the 1981 and 1982 calendar years: CB 93[70], 94[75], 95[88].

However, the deceased was mindful that the plaintiff was sacrificing time and effort that he would otherwise spend with Apace by doing work on the farm. For example, following Jim’s death, she requested him to keep milking with Mr Shepherd and encouraged him to do so with the promises: CB 108[169]. From 5 February 2005, the plaintiff took leave from Apace to work at Kennilworth Dairy full time with Mr Shepherd: CB 108[167].

As I understood it, the main financial benefit which Ms Fendekian advanced as being a countervailing benefit to be considered was that the plaintiff prospered through his work with Apace and Ethtec: DCS [140].

In answer to Ms Fendekian’s submissions that the plaintiff prospered through his work with Apace and Ethtec, Mr Birtles submitted (PCS [209]-[210], [225]-[228], [281]-[284], [286]):

In his initial affidavit, the plaintiff gave evidence regarding his financial circumstances as follows (CB 121):

The plaintiff was cross-examined regarding ETI, Ethtec and Apace. Ethtec is a for-profit company and Apace is a not-for-profit company: T 167.9-13. Apace is limited by guarantee: Exhibit D3 page 4.

In the 2000s the plaintiff co-founded Ethtec for the purpose of further developing renewable ethanol fuel technology: CB 106[159]. He gave evidence that that occurred in or about 2004 (CB 106[159]; T 156.30-41), although in cross-examination proffered that it could have been 2008 or 2006, but certainly not before 2006: T 160.30-34. The precise year is not vitally important. Nonetheless, it appears that the timing may have been closer to 2006, as on 10 July 2006 the plaintiff applied for shares in Ethtec: Exhibit P2.

By about November 2017, Ethtec was still a limited company. Consequent upon a project which Ethtec was to undertake with a Chinese company Jiangsu Jintongling Fluid Machinery Technology Company Limited (JTL) (which project was also to receive funding from Australian Renewable Energy Agency (ARENA)), Ethtec converted to a proprietary limited company. This involved a form of restructure whereby the shares held by the original shareholders of Ethtec were reissued as shares in ETI, requiring approval from Queensland courts: T 163.29-38; Exhibit D2; Exhibit D3 page 11.

The plaintiff indicated his understanding that Ethtec, as the original limited company, had approximately 309 shareholders and that as part of the above-mentioned arrangements there were to be three shareholders in ETI, being the original Ethtec shareholders, ARENA and JTL: T 163.29-38.

Specifically, on 18 January 2019, in accordance with a Scheme of Arrangement between Ethtec and its ordinary shareholders which was ratified by the Queensland Supreme Court on 11 February 2019 (Scheme), the shares that Apace held in Ethtec were transferred to ETI. On 12 March 2019 Apace received one share in ETI for each share it held in Ethtec: Exhibit P3.

The plaintiff indicated that he owned 5,000 shares in Ethtec, and that Apace owned more shares than that: T 156.30-45.

It appears that ETI has 16,042,361 issued ordinary shares fully paid: Exhibit D3 page 17; T 164.39-44. Exhibit D3 (at page 3) suggested that the plaintiff held 250,000 shares in ETI. However, it became clear in cross-examination that that was an error and the plaintiff, or at least his late wife and he, owned 5,000 shares and that Apace owned the 250,000 shares recorded in Exhibit D3: T 164.30-37, 165.1-3, 166.26-34. A holding statement issued by Link Market Services Limited suggests that, as at 15 March 2019, Apace in fact held 255,556 shares: Exhibit P3.

No company searches for Ethtec or ETI, current or otherwise, were adduced in evidence. The tenor of the evidence as a whole is suggestive that the plaintiff initially held shareholding in Ethtec which, by reason of the Scheme, became a holding of 5,000 shares in ETI, and Apace’s shareholding in Ethtec became either 250,000 or 255,556 shares in ETI.

A general purpose financial report for ETI and its controlled entity Ethtec for the year ended 30 June 2022, audited as at or about 17 February 2023, was adduced in evidence: Exhibit D3.

In relation to ETI, the plaintiff (as with other directors) received a salary of $15,000 and superannuation contributions of $,1500 for the 2022 financial year: Exhibit D3 page 2; T 164.26-28.

The plaintiff accepted that his holding of ETI shares had been omitted from the asset listing in his affidavit, stating that it was an oversight: T 167.17-23. I accept that there was no deliberate attempt by the plaintiff to mislead the Court in respect of his assets.

Ms Fendekian made reference to Note 18 in the consolidated financial statements, suggesting the parent entity had total net assets and issued equity of $56,148,263: Exhibit D3 page 21. Based on that, it was suggested to the plaintiff that if his holding was 5,000 shares then he had a holding worth approximately $17,500: T 165.8-166.38 (presumably derived from 0.00031167 x $56,148,263).

There are different ways of valuing shareholdings. No attempt was made on either side to value the plaintiff’s holding in ETI in any way other than as described above. Accepting, as I do, the plaintiff’s evidence that he only has 5,000 shares in ETI, based on the cross-examination it does not appear that the value of the plaintiff’s shareholding in ETI (at least as at 30 June 2022) was more than approximately $17,500.

There was no detailed submission as to whether the plaintiff’s shareholding in ETI was some form of countervailing benefit to be considered in assessing whether the plaintiff had suffered any relevant detriment for the purposes of considering the estoppel case, or whether it was some benefit to be considered in assessing relief. However, assuming for the moment that it is to be weighed, I do not consider that the plaintiff’s shareholding in ETI (accepting as I do that the total amount of the shares held is only 5,000) is of such a compelling countervailing benefit to find that the plaintiff has suffered either no detriment or to preclude relief in favour of the plaintiff.

For completeness, ultimately there did not appear to be any suggestion that the plaintiff retained shareholding in Ethtec as distinct from ETI. Certainly, Ms Fendekian did not appear to suggest that the plaintiff had any shareholding apart from the shareholding in ETI (at least as at 30 June 2022), as described above, of any significant value.

In his affidavit evidence, the defendant stated (CB 268-269[66]):

The defendant was cross-examined regarding this and stated as follows (T 267.32-35):

He eventually quantified that statement and said that he assumed he would inherit the “lion’s share” of the land, which he equated to a “decent portion” or “a good proportion of it, probably 80%, you know 70, 80%”: T 268.41-269.4.

The defendant, just prior to cross-examination, gave some supplementary evidence addressing the topic of what, if any, work he did on the lots north of Stroud Hill Road: T 260. He indicated that, in the early stages after Dingadee was purchased, “the things I did personally was that we pulled down certain fences, erected new ones, cleared slashed rubbish around the creeks”: T 261. As time went on, the defendant helped a builder, Ron Shelton, “erect silos, milling sheds” and “[a]t least one hay shed” over a number of years, with the help of Kevin Digby (Mr Sullivan’s brother-in-law). This was in or about 1979 through to the 1980s: T 261. After that, he indicated that “once we got… the property up to a certain standard, … we did very little”: T 261.

When asked to focus on work he, rather than “we”, did, the defendant stated (T262.9-15):

Once the properties north of Stroud Hill Road were leased, the defendant stated that that was “a different thing altogether”, explaining (T 262.22-32):

The defendant did not advance a case that he had carried out work of any significant substance in relation to the leased lots.

Ms Fendekian, as noted above in the context of her submissions on rectification, submitted that the deceased had a long-held view that the viability of the Kennilworth operation depended upon access to lots north of Stroud Hill Road: DCS [110]-[111(a),(c),(d)]. As already indicated, it is not necessary for me to make a firm finding on whether the view is correctly held or not.

Further, Ms Fendekian submitted that the plaintiff’s statement in cross-examination that “the non-leased Kenilworth lots are an economically viable size, a practical size, for a beef raising operation” (T 56.42-43) should be rejected: DCS [116]-[119].

However, it is of significance that the defendant himself did not advance any case that the continued running of the beef cattle operation was reliant upon any of the leased lots.

The defendant accepted that, after the dairy operations closed on the deceased’s property, the time he was required to spend within the farm reduced considerably, noting that the tasks involved in running the beef cattle operation are much less labour intensive than in a dairy operation: T 281.49-282.12.

It was not disputed by the defendant that the beef cattle operation on Kennilworth has operated for 15 or 16 years without the benefit of the leased lots: T 282.36-38.

There was no submission that, in the event that I found that the plaintiff’s estoppel claim was made out, some adjustment to the remedy was required to take account of any work that the defendant had done.

Ms Fendekian submitted that, in order for equity to intervene and grant the relief sought, the Court ought to be satisfied that the plaintiff’s expectation (whatever that is found to be – e.g. “half the farm” or “the leased lots” or something else) is in proportion to the detriment. Ms Fendekian cited Handley AJA in Sullivan at [24]-[29] and Hallen J in Blacket v Barnett [2017] NSWSC 1032 at [285]-[289] to the effect that equity will not grant a remedy that exceeds that which can be justified by the requirement of conscientious conduct and will not grant a remedy which works an injustice on the party estopped: DCS [141].

Specifically, Ms Fendekian submitted that in light of the (not insignificant) gifts to the plaintiff already included in the last Will, the relief sought by the plaintiff is disproportionate to any detriment that he has suffered: DCS [141], [180]-[185].

In cases of equitable (or, more specifically, proprietary) estoppel, the starting point has been described as a “prima facie entitlement” to relief framed on the basis of the assumed (or expected) state of affairs: Soulos at [397]; Delaforce at [63]-[65]; Giumelli v Giumelli at [42] per Gleeson CJ, McHugh, Gummow and Callinan JJ, quoting Deane J in Verwayen at 443; Donis v Donis (2007) 19 VR 577; [2007] VSCA 89 (Donis) at [19] and [32] per Nettle JA (then sitting on the Victorian Court of Appeal) (Maxwell ACJ and Ashley JA agreeing).

This prima facie entitlement arises upon the claimant establishing sufficient detriment, being any “material disadvantage” which is “substantial” although it need not be quantifiable in the same way as an order of damages: Ashton v Pratt (CA) at [147] per Bathurst CJ, citing Gageler J in Hills at [150]; Priestley v Priestley at [18] per Macfarlan JA, [164] per Emmett AJA, McColl JA agreeing; Soulos at [381].

The character of the alleged detriment is also relevant to the issue of proportionality, as was made clear by Emmett AJA in Priestley v Priestley at [160] (omitting footnotes):

Allsop P in Delaforce stated at [4] (emphasis added):

There is no positive requirement for a plaintiff to prove that the relief sought is proportionate, rather the concept of proportionality is a negative principle such that enforcement of the expectation must not be disproportionate: Delaforce at [77] per Handley AJA (Giles JA and Allsop P agreeing); Soulos at [399] per Ward P (Meagher and Mitchelmore JJA agreeing).

This approach appears to be in contrast to that which has been taken in the United Kingdom, which places emphasis on the positive operation of proportionality in the doctrine of proprietary estoppel: see Henry v Henry [2010] UKPC 3; 1 All ER 988 at [65] per Sir Jonathan Parker for the Board; Habberfield v Habberfield [2019] EWCA Civ 890 at [56]-[58] per Lewison LJ (Moylan and Rose LJJ agreeing); see generally Professor Ben McFarlane, The Law of Proprietary Estoppel (2nd ed, 2020, Oxford University Press) at [7.123]-[7.136].

What amounts to a “life-changing” decision may vary from case to case and it is a guide to determining whether there is significant detriment: Soulos at [382].

In Donis, such decisions included the claimant’s decisions to: move into an older home in an area well removed from her family; put her and her husband’s funds into improving the property and defraying mortgage payments; put her own efforts and those of her family into renovating the property; and allow herself to become pregnant and give up teaching sooner than she otherwise would have done: Donis at [33].

In Soulos, Ward P identified the claimant’s life-changing decisions as including: his consent to a less favourable settlement of family law proceedings against his ex-wife at the behest of his parents, on the faith of a promise from his parents that they would assist him re-entering the property market; the payment of rent (which covered mortgage repayments); and renovations which were carried out and/or paid for by the claimant: Soulos at [383].

In Ashton v Pratt (CA), Bathurst CJ found that the claimant’s alteration of her position in becoming the promisor’s mistress and not returning to the escort business for a period of time was not a life-changing event amounting to any detriment which called for the enforcement of the promise: Ashton v Pratt (CA) at [143].

In Waddell v Waddell [2012] NSWCA 214 (Waddell), the claimant worked his family’s farm full-time for almost three decades in the expectation (induced by the promisor, his father) that he would receive a 10 acre portion of the farm. Whilst not adopting the language of Nettle JA in Donis, Campbell JA said to similar effect at [67]:

When one views the nature of the subsequent promises, they were predominantly or essentially in context promises in terms of the leased lots, rather than land north of Stroud Hill Road. The plaintiff’s detrimental reliance in relation to the subsequent promises was in relation to the leased lots.

The adjusted values of the Dingadee lots, as per Mr Ellis’ supplementary valuation report, are as follows (CB 1245):

The adjusted values of the Kennilworth lots, as per Mr Ellis’ supplementary valuation report, are as follows (CB 1246):

There is limited evidence as to the size of the part of lot (o) which was leased. The only place I can readily locate this information is in Appendix 8 of Mr Ellis’ initial valuation report, which lists the part of the leased lot as being estimated at 3.5 ha: CB 1350.

There might perhaps be debate about how a part of a lot should be valued. No submissions or specific evidence was addressed as to how the leased part of lot (o) should be valued. If the part of that lot is given a value of $18,000 per ha, in accordance with the value that Mr Ellis has attributed to the whole of lot (o), then the value of the part of lot (o) which was leased would be $63,000. Even, if the value to be attributed to the part of lot (o) is not $18,000 per ha, it can hardly be suggested that uncertainty about the precise value of 3.5 ha constituting part of lot (o) would make any material difference in relation to the proportionality argument in this case.

Based on the above assumption, the value of the leased lots is as follows:

The land area of the leased lots is (10 Dingadee lots at 301.132 ha + the area of the 3 and a part of the Kennilworth lots at 22.8641 ha =) 323.9961 ha. The value of the leased lots is ($4,953,527 + $334,097 =) $5,287,624.

Ms Fendekian submitted that, if the values attributed to the lots in the supplementary valuation report (CB 1245-1246) are applied, the relief sought (being the transfer of all 14 leased lots to the plaintiff) would be land in the value of $7,028,927: DCS [182]. It is not clear to me how that figure is calculated.

On the above figures, if the entirety of lot (o) were included, the value of the 10 Dingadee lots ($4,953,527) and the 4 Kennilworth lots ($2,346,497) would be $7,300,024.

In any event, Ms Fendekian submitted that such a result is manifestly disproportionate to any detriment even on the plaintiff’s best case: DCS [182].

Ms Fendekian submitted that the disproportionality of the relief sought by the plaintiff vis a vis any detriment is reinforced when one has regard to the fact that the deceased has already gifted to the plaintiff real property valued in the amount of $2,458,620 (being lot (a) at $1,893,600 + lot (b) at $565,020, based on the revised figures of Mr Ellis at CB 1245) as per cl 7.3 of the last Will, plus one-third of the residue estate (as per cl 8.3 of the last Will): DCS [184].

It seems to me that Ms Fendekian’s submission in this regard does not accord with the applicable legal principles. In Kramer, Ward P re-emphasised that “[t]he authorities on relief for a proprietary estoppel… make clear that the starting point is the prima facie position that the expectation be made good”, and rejected the appellant’s contention that the legacy under the Will would have been sufficient to assuage the deceased’s conscience as it assumed a starting position of asking whether there should be further provision aside from the existing legacy, which approached the issue from the incorrect perspective: Kramer at [243] per Ward P (Leeming and Kirk JJA agreeing).

The fact that the deceased gifted lots (a) and (b), totalling $2,458,620, to the plaintiff under the last Will does not to my mind ameliorate or have the effect of extinguishing the plaintiff’s claim to relief to be granted the additional 12 leased lots (including part of lot (o)), totalling $2,829,004.

In relation to the plaintiff’s evidence that, between June 1989 and 2006, the plaintiff assisted with the Kennilworth and Dingadee Dairy operations by spending four to five hours per week performing various farming tasks without remuneration (CB 100[123]), he agreed that he spent the bulk of his time during those years with the work of Apace. He indicated that Apace had not been a financial success, but he had had some success in raising the public profile of renewable fuels: T 160.18-46.

The plaintiff stated in evidence (limited to his belief) at CB 121:

Further, the plaintiff stated in evidence, which I accept, at CB 121-122:

The plaintiff’s case for detriment was presented holistically, with all of the elements of forgoing opportunities and work carried out sharing the common thread that the plaintiff (for the most part) remained living and working in or around the farm secured by the promises that he would inherit, under the initial promises, “half of the farm” and, by the subsequent promises, the “leased lots”: PCS [222]-[286].

I have outlined above my findings in respect of the plaintiff’s case for detrimental reliance regarding:

It was submitted on behalf of the plaintiff that his detriment is of a kind and extent that involves “life changing decisions with irreversible consequences of a profoundly personal nature”: PCS at [222]; T 417.37-41, 474.29-37.

The plaintiff’s career choices to remain in proximity to the farm, his physical and financial assistance which he provided to the family farm operations, the establishment of his family home, the many hundreds of hours he spent on the farms and properties carrying out work, and his work on the leased lots “set the course” of his life over decades “in a way that cannot now be unscrambled”: Waddell at [67].

The relevant test has been described in terms of whether final relief of the kind sought by the plaintiff would be “wholly disproportionate” to the detriment suffered or “out of all proportion” to the detriment: Soulos at [402], [407]; Priestley v Priestley at [164].

Viewed holistically and taken together, I consider that the choices made by the plaintiff involve life changing decisions with irreversible consequences of a profoundly personal nature, beyond the measure of money. I do not regard the relief he claims as being “wholly disproportionate” or “out of all proportion” to his detriment.

My finding in this regard does not depend upon the value to be attributed to the small 3.5 ha area of part of lot (o), which formed part of the leased lots, whether it be $63,000 or otherwise.

Ultimately, I consider that the plaintiff has made out a case for estoppel in relation to what is the first option, being a claim for the 10 Dingadee lots, as well as the 4 Kennilworth leased lots.

I have determined that the plaintiff’s construction claim and rectification claim fail, but the plaintiff’s estoppel claim succeeds.

I find that the plaintiff has made out a case for estoppel in relation to what is the first option, being a claim for the 10 Dingadee lots, as well as the 4 Kennilworth leased lots (i.e. lots (k), (l) and (m), and part of lot (o)). Mr Birtles acknowledged that, in relation to that scenario, there would need to be a practical solution worked out involving subdivision of that part of lot (o) which lies to the north of Stroud Hill Road and was part of the leased area.

Costs are in the discretion of the Court, subject to the CPA, rules of Court and any other Act: s 98(1)(a) CPA.

The Court:

The general position is that if the Court makes any order as to costs, the Court is to order that the costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs: r 42.1 UCPR.

In Horn v GA & RG Horn Pty Ltd (No 2) [2022] NSWSC 1747, I addressed the question of what is a relevant “event” for the purposes of a cost order:

In Taylor v Stav Investments Pty Ltd as trustee for the Stav Investments Family Trust (No 2) [2023] NSWCA 322 at [7], the Court of Appeal referenced its earlier decision in Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38], in which it had summarised the principles governing the making of an order as to costs in dealing with particular issues in proceedings.

Where litigation involves multiple issues, the ultimately successful party may have failed on one or a number of those issues. The “event” is not necessarily limited to the final overall outcome, but may aptly apply to individual issues in the proceedings.

Broadly speaking, there were three claims brought in the proceedings as I have indicated: a construction claim, a rectification claim and an estoppel claim. I have found against the plaintiff in relation to the construction claim and rectification claim (except as to the minor but inconsequential change of the words “Dinga Dee” to “Dingadee”), but in favour of the plaintiff in relation to the estoppel claim.

It is not to be thought that very little time was taken up in the proceedings by the construction claim and rectification claim. There was very considerable evidence addressing the issue of whether there was a correct or predominantly usual means of spelling the names “Dingadee” and “Kennilworth”, as well as addressing how the deceased spelt those names. There was also very considerable focus on evidence from Mr Gowing and Mr Doyle.

There was a particular connection between the construction issue and the rectification issue.

My provisional view is that potentially one way of addressing costs in this case is to order that the plaintiff pay the defendant’s costs of the construction claim and rectification claim and for the defendant to pay the plaintiff’s costs of the estoppel claim, and to order that the costs of those issues be set off against one another: see for example Wang v Yu (No 2) [2024] NSWSC 4 at [187]-[189], citing Riva NSW Pty Ltd v Key Nominees Pty Ltd [2023] NSWSC 711 at [221]-[224].

In expressing that as a provisional view, I am inviting the parties to reflect on the question of how costs ought to be dealt with and to see whether there can be some agreement on the matter. I am not requiring that there be agreement, merely that the parties consider whether costs may be agreed or at least any contested issue in respect of costs is able to be narrowed.

I direct the parties to bring in short minutes of order to give effect to these reasons for judgment and to consider whether an appropriate costs order can be agreed. If no agreement can be reached, I direct the parties to contact my associate to make arrangements for listing to briefly address any contested question of the appropriate substantive orders and costs.