Bassett v Cameron

1. [1]

   HER HONOUR: Before me for hearing last August were various claims arising out of disputes between the four adult children of the late Elaine Jill Bassett (Jill), who died on 21 March 2007, and the late William Edward Bassett (Bill), who died on 22 January 2014.

2. [2]

   Probate of Jill’s Will dated 17 June 1998 was granted to Bill and to one of their four children (the plaintiff, Geoffrey William Bassett (Geoff)), as co-executors of her estate, on 22 August 2007. Probate of Bill’s Will dated 14 May 2009 was granted on 18 December 2014 to another of the four children (the first defendant, Susan Narelle Cameron (Sue)) and to Geoff, as the co-executors named in Bill’s Will.

3. [3]

   The second defendant, Merilyn Jill Ryan (Merilyn), is the eldest of Bill and Jill’s four children; followed by Sue, Geoff and the youngest of the siblings, Bruce Edward Bassett (Bruce) (the third defendant). Merilyn, Sue and Bruce are the residuary beneficiaries of both Jill’s estate and Bill’s estate, under their respective Wills, taking their interest in each of the residuary estates in equal shares. In these reasons, I refer to the family members by their first names, without intending any disrespect.

The proceedings

1. [4]

   On 21 January 2015, Geoff commenced proceedings by statement of claim against Bill’s estate, naming Sue, his co-executor, as the first-named defendant (the primary proceeding). Geoff subsequently amended his claim and filed an amended statement of claim on 26 February 2015.

2. [5]

   In the primary proceeding, Geoff seeks a declaration of trust in respect of Bill’s half share of a rural property in Inverell, New South Wales, known as “The Springs” (invoking the principles of proprietary estoppel) (see amended statement of claim at [3], [31]-[32]). Geoff says, in essence, that in about December 2008 and continuing in early 2009, Bill promised to devise his interest in The Springs to Geoff in his Will and that, in reliance on this promise (and subsequent representations), Geoff invested significant time and effort into the development of The Springs (in lieu of developing his consultancy business – at least on a full time basis). Ultimately, however, Bill’s interest in this rural property was devised to Geoff’s siblings as part of the residue of Bill’s estate. (I interpose to note that the pleaded claim, as Merilyn and Bruce emphasise, is predicated on an oral agreement alleged to have been reached at a much earlier time – namely, in 1984, and renewed in 2005 and again later.)

3. [6]

   In the alternative, Geoff makes a claim for further provision from Bill’s estate pursuant to s 59 of the Succession Act 2006 (NSW) (Succession Act) (see amended statement of claim at [6]). It is accepted that if Geoff succeeds in his claim for a declaration of trust then his application for further provision from Bill’s estate becomes otiose.

4. [7]

   Merilyn and Bruce, pursuant to leave granted on 3 February 2017, filed on 16 February 2017 a cross-claim, as representatives of Jill’s estate, seeking to restore assets to Jill’s estate on the basis that her estate was not properly administered by Jill’s executors (Geoff and Bill). That cross-claim (to which I refer as the first cross-claim) was amended on 1 July 2019.

5. [8]

   Geoff and Sue are joined as the first and second cross-defendants to the first cross-claim. Geoff complains of the delay in commencement of this claim, which was not brought until after the death of Bill. First, Geoff says that he relied heavily on his father (Bill) during the administration of his mother (Jill)’s estate. Second, it is noted that a principal claim of the cross-claimants is that various assets held by the couple (that were treated in the administration of Jill’s estate as if they were held pursuant to a joint tenancy and so would have passed to Bill on her death by way of survivorship) were in fact assets of partnerships between Bill and Jill, with the consequence that Jill’s interest (through the said partnerships) in the assets ought to have formed part of the residue of her estate. Geoff says that the person best placed to give evidence as to that key factual issue would have been Bill.

6. [9]

   On 31 August 2018, Geoff filed his own cross-claim against Bill’s estate (to which I refer as the second cross-claim) this being an admittedly defensive cross-claim in the event that Geoff has any liability arising under the first cross-claim. Sue is the named defendant to the second cross-claim in her capacity as co-executor of the estate.

7. [10]

   Thus, the issues raised in the amended statement of claim arise out of the administration of Bill’s estate; whereas those in the two cross-claims arise out of the (much earlier) administration of Jill’s estate.

8. [11]

   The position of Sue, who as noted was joined as a defendant in the primary proceeding (and cross-claims) in her capacity as an executor of Bill’s estate, is not uncomplicated. Pursuant to orders made by Pembroke J on 27 May 2019, Merilyn and Bruce were joined as parties to the primary proceeding and the second cross-claim (order 1) and appointed to represent the estate of Bill in both those proceedings (order 2). Pembroke J further ordered that Sue (in her capacity as an executor of Bill’s estate) would be at her own risk as to costs from 27 May 2019 (order 3). The effect of his Honour’s orders was that since then Merilyn and Bruce have had the conduct of the defence of the primary proceeding in lieu of Sue (his Honour having taken the view – albeit not on a final basis and expressly noting that it was not possible for him to test it at that stage – that Sue “has sympathised with the plaintiff [Geoff] and is clearly hostile towards her siblings Bruce and Merilyn as well as Bruce’s wife, Edwina” (see his Honour’s ex tempore reasons at p 5). I return to this issue in due course. Suffice here to say that any schism between the siblings on Sue’s part seems well and truly to be reciprocated on Bruce’s side.

9. [12]

   Sue has since filed submitting appearances in each of the respective claims. Accordingly, the active parties in the proceedings are Geoff, on the one hand, and Merilyn and Bruce, on the other. However, Merilyn and Bruce have foreshadowed an application in due course as to Sue’s costs of the proceedings arising under s 93 of the Trustee Act 1925 (NSW) and/or r 42.25(2) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR); namely, an application that Sue not be entitled to be indemnified for those costs, on the basis that those costs were unreasonably incurred. The issue of costs in general will be the subject of further submissions following this judgment.

Background

1. [13]

   I have referred in the above introduction to the family members. Bill and Jill married in 1953 and were farmers. They had four children: Merilyn (born in 1955), Sue (born in 1957), Geoff (born in 1960) and Bruce (born in 1965). Geoff was the only child to take up a career as a farmer and worked alongside his parents in varying ways over the years.

2. [14]

   Each of the four siblings gave evidence and was cross-examined in the proceedings. To the extent that the siblings’ personal circumstances are relevant to the family provision claim, those will be dealt with in more detail in due course.

3. [15]

   The various partnerships which feature in this matter are as follows.

4. [16]

   First, Bill and Jill held equal shares in an unincorporated partnership known as WE Bassett & EJ Bassett trading as “Monowai Pastoral Co” (ABN 35 579 258 738) (The Monowai Partnership ). From inception, at the time of Bill and Jill’s marriage in 1953, to Jill’s death on 21 March 2007, Bill and Jill each held a 50% share in the partnership. After Jill’s death, Bill held 50% and the Estate of EJ Bassett held the other 50%. The Monowai Partnership ended on 30 June 2010. It is noted by Merilyn and Bruce that the ledgers of The Monowai Partnership do not record any final settlement of accounts as between the partners after Jill’s death, including for the interest that Jill’s estate held in the partnership; and that asset values are generally recorded at book value.

5. [17]

   Second, an unincorporated partnership known as GW Bassett & KR Bassett trading as “GW & KR Bassett” (ABN 21 943 738 749), which commenced around the time of Geoff’s marriage to his now ex-wife, Kaye, in 1983 and in which the partners (Geoff and Kaye) held equal shares (The GW & KR Bassett Partnership).

6. [18]

   Third, an unincorporated partnership known as WE Bassett, EJ Bassett & GW Bassett trading as “WJG Bassett partnership”, which commenced on or about 29 November 1984, in which the partners (Bill, Jill and Geoff) held the following shares: Bill and Jill each a 25% interest and Geoff the remaining 50% interest (The WJG Bassett Partnership). Merilyn and Bruce say that The WJG Bassett Partnership was the “original” Springs Partnership for the purchase of The Springs in 1985 (as to which, see below).

7. [19]

   Fourth, an unincorporated partnership initially known as WE Bassett, EJ Bassett & GW Bassett & KR Bassett trading as “The Springs Pastoral Co”, which commenced on or about 1 July 1987 and in which the partners (Bill, Jill, Geoff and Kaye) held equal interests. This partnership changed its trading name to “The Springs Pindaroi Pastoral Co” (ABN 90 527 598 373) on or about 1 July 1988 (The Springs Partnership).

8. [20]

   Merilyn and Bruce trace the iterations of The Springs Partnership as one operating: from 1987/88 as The Springs Pastoral Co (in the shares: Bill 25%, Jill 25%, Geoff 25%, and Kaye 25%); from 1988 to 21 March 2007 (the date of Jill’s death) as The Springs Pindaroi Pastoral Co (in the shares: Bill 25%, Jill 25%, Geoff 25%, and Kaye 25%); from 22 March 2007 to 31 March 2008 as The Springs Pindaroi Pastoral Co (in the shares: Bill 25%, Estate of EJ Bassett 25%, Geoff 25%, and Kaye 25%); and from 1 April 2008 to 15 April 2009 as The Springs Pindaroi – New Partnership (in the shares: Bill 25%, Estate EJ Bassett 25%, Geoff 25%, and Kaye 25%).

9. [21]

   Merilyn and Bruce note that, unlike The WJG Bassett Partnership, The Springs Partnership from 1987/1988 did not include The Springs in the books of the partnership but, instead, noted a Property Purchase Advance in the names of Bill, Jill, and Geoff for the original purchase value of the land. It is noted that this change was contemporaneous with the introduction of Kaye as a partner in The Springs Pindaroi Pastoral Co. I address in due course the expert accounting evidence as to the treatment of the Property Purchase Advance in the partnership books. As with The Monowai Partnership, Merilyn and Bruce note that the partnership ledgers of The Springs Partnership do not record any final settlement of accounts as between partners after Jill’s death, including for the interest that Jill’s estate held in that partnership; and asset values are generally recorded at book value. It does not appear to be disputed that farming on The Springs was carried out over the relevant period by what may be referred to as the various iterations of The Springs Partnership; and it is Bill’s interest in The Springs that is the subject of Geoff’s proprietary estoppel claim.

10. [22]

    Finally, Geoff and Bill held equal shares in an unincorporated partnership known as GW Bassett & WE Bassett trading as “WE & GW Bassett” (ABN 47 060 692 169) which operated from around April or May 2009 to 30 June 2015. The trading name for this partnership changed to “Bassett Grazing Co” on or about 5 January 2010 (The Bassett Grazing Co Partnership). After Bill died on 22 January 2014, the ledgers and Statement of Accounts of the partnership described the partnership as “Estate WE and GW Bassett trading as Bassett Grazing Co” and recorded Bill’s estate as holding a 50% share in the partnership.

11. [23]

    It is noted that the relevant partnership ledgers indicate that the property of the last iteration of The Springs Partnership, including The Springs and the land at Hurricane Hill to which I will refer shortly, was transferred to The Bassett Grazing Co Partnership, on 16 April 2009.

12. [24]

    Pausing here, Merilyn and Bruce submit that the best evidence as to the status of the assets of the relevant partnerships is to be found in the business records of the partnerships, including the records of the accountant for the respective partnerships at the time, Mr Alfred Carrigan (Mr Carrigan). However, Mr Carrigan has given evidence (to which I will turn in due course) casting doubt on how assets were recorded in the partnership accounts. I note that Mr Carrigan was also the accountant engaged by Geoff and Bill for the administration of Jill’s estate (but he was not Geoff’s personal accountant).

13. [25]

    At the outset, although there was reference in some of the evidence and submissions to the effect that The Springs Partnership continued in different forms (see, for example, the reference to Geoff’s October 2014 statements at [259] below), I understand this simply to be a shorthand reference to the continuation of the farming of The Springs through the various partnership iterations. As a matter of law, any change in the membership of a partnership operates to dissolve the partnership; and thereafter, if the business of the partnership is continued, a new partnership will have come into existence. On this point Halsbury’s Laws of Australia notes the following (vol 305, at [517]):

14. [26]

    The explanation by Eichelbaum CJ in Hadlee v Commissioner of Inland Revenue [1989] 2 NZLR 447 at 455 which was relied on by the High Court in Commissioner of State Taxation v Cyril Henschke Pty Ltd (2010) 242 CLR 508;[2010] HCA 43 at [11] makes this clear:

15. [27]

    Similarly, in Atwell v Roberts (2013) 43 WAR 507; [2013] WASCA 37, where new partners were added to a family partnership, known as the “Atwell Family Agency”, on six occasions, Pullin JA said at [11]:

16. [28]

    Relevantly, the real property which features in the present proceedings comprises the following properties: Dunoola, the first rural property farmed by Bill and Jill after their marriage (Dunoola); Pindaroi, the family property ultimately acquired by Geoff and Kaye (as to which, the constant refrain of Merilyn and Bruce was that this was acquired at a significant undervalue and which the siblings understood to represent Geoff’s “early inheritance”) (Pindaroi); The Springs, a farm near Inverell, New South Wales, which was purchased by Bill, Jill and Geoff on 26 March 1985 (The Springs); Hurricane Hill, farmland contiguous to The Springs, which was purchased in the names of Bill, Jill, Geoff and Kaye (together as tenants in common but, as between each of the couples, as joint tenants) on 12 August 2005 (Hurricane Hill); and Bassett Downs, a parcel of land near Inverell, which was purchased by Bill and Jill in about 1992, and subdivided into residential properties in several stages between 1994 and 2006 (Bassett Downs) (see below).

17. [29]

    It is convenient here to note the relevant chronology in respect of the development of Bassett Downs. After its acquisition by Bill and Jill in 1992, Bassett Downs was sub-divided into 32 lots during the 1990’s (Geoff’s affidavit sworn 8 June 2017 at [160]-[162]). A copy of deposited plan (DP) 876448 (being the deposited plan referred to in Jill’s Will) shows the sub-division of the property into those 32 lots (Geoff’s affidavit sworn 18 October 2018, Ex C at Tab 60). This plan was registered on 22 April 1998.

18. [30]

    Lots 1 to 30 were sold prior to Jill’s death. There is no dispute in relation to those lots.

19. [31]

    In 2006, Lot 32 was subdivided into a further 26 lots (the Sub-Lots) (as recorded in DP1093499) (Geoff’s affidavit sworn 8 June 2017 at [165]). 25 of the 26 Sub-Lots were put up for sale. At the time of Jill’s death on 21 March 2007, 13 of the Sub-Lots had been sold, leaving the 13 remaining Sub-Lots and Lot 31 unsold (Geoff’s affidavit sworn 8 June 2017 at [162]-[164]).

20. [32]

    Eight of the remaining Sub-Lots were sold after Jill’s death but prior to Jill’s estate being finalised (the Claim 8 Lots). As noted above, DP876448 (referred to in Jill’s Will) was registered on 22 April 1998. On 24 February 2006, DP1093499 (being the deposited plan for Bassett Downs referred to in the first cross-claim at [63]) was registered (Geoff’s affidavit sworn 18 October 2018, Ex C at Tab 61). DP1093499 identifies the “Last Plan” in respect of the Bassett Downs land as “DP1066097 (DP876448)”. Geoff places weight on the fact that DP1093499 discloses that each of the Claim 8 Lots (the subject of Claim 8 of the first cross-claim) formed part of Lot 32 under DP876448. Accordingly, it is said that each of the Claim 8 Lots formed part of the land devised under cl 6(b) of Jill’s Will, which reads:

21. [33]

    Five Sub-Lots remained unsold at the time Jill’s estate was finalised (being Sub-Lots 2, 11-13, 20). These five Sub-Lots (the Claim 9 Lots) are the subject of Claim 9 of the first cross-claim (see below Geoff says that, similarly to the Claim 8 Lots, DP1093499 discloses that each of the Claim 9 Lots formed part of Lot 32 under DP876448 and each was, therefore, part of the land devised under cl 6(b) of Jill’s Will.

22. [34]

    As noted above, Lot 31 had not been sold at the time of Jill’s death. Sub-Lot 26 remained undeveloped at the time Jill’s estate was finalised. Lot 31 and Sub-Lot 26 are relevant to Claim 10 (see below).

23. [35]

    The transfer records show that Hurricane Hill was acquired in 2005 by the four partners of The Springs Partnership as tenants in common (as to 50% by Bill and Jill as joint tenants, and as to 50% by Geoff and Kaye as joint tenants). It is noted by Merilyn and Bruce that Hurricane Hill was included in the books of The Springs Partnership as a partnership asset. After Jill’s death, Bill became owner of 50% of Hurricane Hill by way of survivorship. By Claim 4 of the first cross-claim, Merilyn and Bruce contend that this share should have been treated differently – i.e., as a partnership asset. Kaye subsequently transferred her 25% share of Hurricane Hill to Geoff on 23 November 2009, as part of their property settlement.

24. [36]

    As adverted to, there is a dispute as to the nature of the interests held in Hurricane Hill; namely, whether this land was purchased as a partnership asset of The Springs Partnership (as contended by Merilyn and Bruce) or, alternatively, whether (as Geoff contends) Hurricane Hill was owned by the partners individually in their own right and that the partnership concerned the working (not ownership) of this land (see further below).

25. [37]

    Bill made a Will in 1992 (and, as I understand Bruce and Merilyn’s submissions, Jill made a mirror 1992 Will). Bill and Jill then made mirror Wills in 1998, which did not leave The Springs to Geoff.

26. [38]

    Mr John Butler of Borthwick & Butler solicitors, Inverell drafted Jill’s final Will dated 17 June 1998. Probate of the Will was granted to Bill and Geoff on 22 August 2007. Its terms reflected those of Bill’s 1998 Will.

27. [39]

    In summary, after gifts of jewellery to Merilyn and Sue, Jill left her principal residence or any share of it at the time of her death to Bill, along with cars, chattels, and two shop properties at Coffs Harbour (a gift which it is noted lapsed as they were not owned by Jill at her death, or at all). Jill also left to Bill any interest she had in any loans owed jointly by Geoff and Kaye.

28. [40]

    Jill left equipment and plant on the family farm, Pindaroi, and a one-quarter share of her share in the remainder of Bassett Downs (being Lots 1 to 32, excluding Lot 8) (this bequest including the Claim 8 Lots and Claim 9 Lots). The residue of Jill’s estate was left to Merilyn, Sue and Bruce as tenants in common in equal shares.

29. [41]

    Pausing here, it is noted by Merilyn and Bruce that, as Bill has now died, Geoff remains the sole surviving executor of Jill’s estate. They point to authority that, on the death of an executor, “the office, with its incidents, duties and powers, and the estate and interest in all the property vested in the representatives by virtue of their office, devolve, upon the survivors or survivor” (Joliffe v Fera [1973] 2 NSWLR 702 at 703 per Holland J quoting Halsbury’s Laws of Australia, 3rd ed, vol 16, at [218]). Although the complaint in the first cross-claim is as to breach by Geoff in respect of his “executorial duties”, it was clarified in opening submissions that there is no claim here being made in devastavit (which, it is accepted, would be statute-barred) (T 11.10-20). Rather, the complaint is said to be maintainable as a claim to recover trust property or the proceeds of trust property (see T 14.40-16.15). There is no pleading of fraud or breach of trust.

30. [42]

    Bill’s final Will, dated 14 May 2009, was also drafted by a solicitor at Borthwick & Butler (this time, Mr Mike Manuel (Mr Manuel)), who witnessed its execution along with his clerk. At least two drafts of the Will were prepared; and Bill attended the solicitors in person to give instructions in relation to the Will. Probate of this Will was granted to Geoff and Sue on 18 December 2014.

31. [43]

    After appointment of executors, by cl 3 of the Will, Bill gave to Geoff his interest in any:

32. [44]

    It is emphasised by Merilyn and Bruce that this clause operates to exclude Bill’s interest in The Springs (which Geoff claims was the subject of the express agreements and representations pleaded in his amended statement of claim).

33. [45]

    Clause 4 of Bill’s Will gives the residue of the estate (which, by operation of cl 3, includes Bill’s share in the real estate Bill owned together with Geoff) to Merilyn, Sue and Bruce, as tenants in common.

Chronology of events

1. [46]

   As already noted, The Monowai Partnership commenced in 1953 when Bill and Jill married. At that time, Bill and Jill first carried on farming together at Dunoola. Their four children were born in 1955, 1957, 1960 and 1965. Bill and Jill retained Dunoola until 2004.

2. [47]

   In 1976, Bill and Jill purchased the rural property known as Pindaroi Station (Pindaroi) for the sum of $234,000 (see Geoff’s affidavit affirmed 30 March 2015 at [9]); Sue’s affidavit sworn 22 July 2015 at [8]). Pindaroi, about 40km from Inverell, became their family home. Bill and Jill moved into the homestead on Pindaroi in 1977 with Geoff and Bruce (Merilyn and Sue by then having left home). Merilyn and Bruce point out that Pindaroi was recorded as an asset of The Monowai Partnership. However, the transfer records that Bill and Jill acquired the land as tenants in common in equal shares (Sue’s affidavit sworn 22 July 2015, Ex A at 3). Bill and Jill continued to own and operate Dunoola at that time.

3. [48]

   Geoff, who as noted above was the only sibling who undertook a career as a farmer, left high school in 1977 and commenced working as a farm hand on Pindaroi (Geoff’s affidavit affirmed 30 March 2015 at [10]-[11]). Geoff’s evidence is that Bill influenced his decision not to go to university at the time. Geoff alleges that, from 1977 to 1983, he worked on Pindaroi for a varying award wage, for 40 hours per week (amended statement of claim at [4]). Merilyn and Bruce point out that Geoff had free board and lodgings on Pindaroi and that his wages were paid by The Monowai Partnership.

4. [49]

   Geoff’s evidence is that, in 1978, he entered into an oral agreement with his parents to lease, at a commercial rate, a 161 hectare portion of Pindaroi, being the “top end” of Pindaroi known as the “Woolshed Block” (Geoff’s affidavit affirmed 30 March 2015 at [13]-[14]); Geoff’s affidavit affirmed 8 December 2015 at [2]). Geoff alleges that he leased the top end of the Woolshed Block from 1977 to 1983 at a commercial lease rate (amended statement of claim at [5]). In that time, he says that he improved the land by, inter alia, putting up new fences, clearing dead timber and rocks, contouring and cultivating arable soil and controlling annual and woody weeds (Geoff’s affidavit affirmed 30 March 2015 at [15]). Geoff says that he was not paid any amount for his work associated with improving the value of the land (Geoff’s affidavit affirmed 30 March 2015 at [14]). He continued to be paid award wages working on Pindaroi, with board and lodgings.

5. [50]

   By reference to the Monowai Statements of Account from 1979 to 1982, Merilyn and Bruce point out that Geoff received loans in varying amounts over the period (see Bruce’s affidavit sworn 28 September 2015 at [26]-[29]). Geoff says he used those loans to pay for some of his parent’s farming equipment at written down book value and that he repaid the loans (Geoff’s affidavit affirmed 8 December 2015 at [23]; Geoff’s affidavit sworn 8 June 2017 at [50].

6. [51]

   Geoff married Kaye in 1983. Geoff and Kaye moved into the Cottage on Pindaroi. Merilyn and Bruce point out that they lived there rent-free for eight years (Bruce’s affidavit sworn 28 September 2015 at [29]).

7. [52]

   Geoff’s evidence is that, at that time, Bill and Jill offered to sell the whole Woolshed Block to him (Geoff’s affidavit affirmed 30 March 2015 at [17])) and that, ultimately, Geoff purchased this land for $145,214 (Geoff’s affidavit affirmed 30 March 2015 at [18]; Sue’s affidavit sworn 22 July 2015 at [11]). Bruce notes that the transfer for the Woolshed Block excludes the portion where the shearing shed and yards were located, which Bill and Jill continued to own (see Bruce’s affidavit sworn 26 April 2018 at [219]-[220]). By contrast, Geoff’s evidence is that his parents’ offer of the Woolshed Block was on the condition that Bill could continue to use those areas when required, without any money being payable for use of those facilities (see Geoff’s affidavit sworn 8 June 2017 at [62]).

8. [53]

   Merilyn and Bruce say that the Monowai Statements of Account 1983/1984 show that, before the Woolshed Block was transferred to Geoff, Bill and Jill had invested $70,134 in Pindaroi over the period from 1976 to 1984, increasing the cost value of Pindaroi from $234,000 in the 1976 financial year to $304,164 by the 1984 financial year (Bruce’s affidavit sworn 28 September 2015, Ex 4 at pp 81-101).

9. [54]

   The purchase of the Woolshed Block was effected by way of vendor finance – a loan which, following a debt forgiveness in the amount of (at least) $30,000, was repaid in six years (Geoff’s affidavit affirmed 30 March 2015 at [18]-[19]). It is Geoff’s understanding that the debt forgiveness was partly an acknowledgement of the capital improvements he had made to the Woolshed Block during the course of his lease of the property (Geoff’s affidavit affirmed 30 March 2015 at [18]; Geoff’s affidavit affirmed 8 December 2015 at [26]) and partly because Bill unilaterally decided artificially to inflate the price (as the property was purchased prior to the introduction of Capital Gains Tax and the inflated price would assist Geoff with minimising any future Capital Gains Tax liability if he decided to sell the property in due course) (Geoff’s affidavit sworn 8 June 2017 at [59]).

10. [55]

    Geoff concedes that it is possible that his parents provided an additional gift of $45,200 (by way of a release of debt) but does not have an actual recollection of this (Geoff’s affidavit affirmed 8 December 2015 at [4], [26]). In this regard, it is noted that a handwritten note prepared by Bill in 2013 (the so-called Shopping List Note – as to which see further below) appears to reflect this position (Sue’s affidavit sworn 22 July 2015, Ex A at p 29 (the Shopping List Note)). Geoff recalls paying interest at a commercial rate on the loan (Geoff’s affidavit affirmed 8 December 2015 at [27]).

11. [56]

    Merilyn and Bruce say that there were total loan repayments over the period from 1986 to 1989 of $70,014 in respect of the purchase price of $145,214, the balance being “gifted” to Geoff from The Monowai Partnership (referring to Monowai Statements of Account over the period which record gifts to Geoff of $30,000 and $45,200 and a loan of $115,214).

12. [57]

    Following his purchase of the Woolshed Block, Geoff continued to work on Pindaroi (including the part of Pindaroi that was still owned by his parents) but was no longer paid for this work. This work included, inter alia, operating the harvester and driving grain trucks at harvest time, undertaking welding jobs, wool classing at shearing time, dealing with property fencing, conducting general maintenance and designing and building sheep yards (Geoff’s affidavit affirmed 30 March 2015 at [20]-[21]). Accordingly, Geoff submits that he undertook a significant amount of unpaid labour for his parents over a number of years. Merilyn and Bruce point out that he took the profits from farming the Woolshed Block (and I note that, at least by the time Geoff was in partnership with his parents, so it seems not surprising that his remuneration might have been by partnership drawings rather than wages as such).

13. [58]

    I interpose here also to note that Geoff’s evidence is that, in the period since 1983, he worked to develop innovative farming techniques (through conducting courses and experimenting); and that, in 1988, he won an inaugural farm management competition (Geoff’s affidavit affirmed 30 March 2015 at [59]); and, in 1993, he won “The Champion of Champions” title (Geoff’s affidavit sworn 8 June 2017 at [551]-[552]). Geoff says that he developed an excellent reputation as a soil consultant (Geoff’s affidavit affirmed 30 March 2015 at [61]). Geoff’s evidence is that he has also become a regular workshop presenter to groups of farmers in Northern NSW and Southern Queensland and that he has presented alongside internationally known soil consultants such as Professor Don Huber (Geoff’s affidavit sworn 8 June 2017 at [563]-[564]).

14. [59]

    Returning to the chronology, in 1984, Geoff, Bill and Jill together purchased The Springs for the sum of $288,539 (Geoff’s affidavit affirmed 30 March 2015 at [22]); Bruce’s affidavit sworn 28 September 2015 at [41], Ex 4 at pp 53-54 - the Agreement for Sale of Land dated 29 November 1984. The transfer (dated 26 March 1985) records the purchase price as being $228,539.05 (Bruce’s affidavit sworn 28 September 2015, Ex 4 at p 103). The title documents record the owners as being Bill as to 25%, Jill as to 25% and Geoff as to 50%, all as tenants in common.

15. [60]

    Geoff’s evidence is that, although The Springs was half owned by Bill and Jill, he (Geoff) completed or organised a majority of the work on the property without compensation (Geoff’s affidavit affirmed 30 March 2015 at [26]). As noted above, at about this time The WJG Bassett Partnership was formed.

16. [61]

    The purchase of The Springs was financed by way of debt: a $100,000 loan from The Monowai Partnership to The WJG Bassett Partnership; a $168,000 loan from the National Australia Bank (NAB) to Bill, Jill and Geoff (with Bill and Jill as guarantors); and a $26,511 overdraft facility from NAB to The WJG Bassett Partnership (Expert Report dated 13 September 2019 of Antony Bryn Samuel (the Samuel Report), Ex E at [150]).

17. [62]

    It is said by Geoff that, as the proprietors of The WJG Bassett Partnership were Bill (with a 25% interest), Jill (with a 25% interest) and Geoff (with a 50% interest), their respective contributions via debt were equivalent to their respective ownership interests in the partnership.

18. [63]

    Merilyn and Bruce point to The Springs Partnership records showing the purchase value at $289,972 (see Expert Report dated 26 March 2019 of Hugo Charles Loneragan (the Loneragan Report), Ex 6 at [4.2.1]-[4.2.2]). They point out that, at the time of the purchase, Geoff was in debt to Bill and Jill for the Woolshed Block and for the purchase of livestock for the farm (referring to the statements of account for both the Monowai and WJG Bassett Partnerships). They also say that Geoff did not contribute any funds to purchase The Springs. However, this does not seem to take into account the NAB loan, which (at least in a resulting trust context) would be treated as a contribution to the purchase price by Geoff of a share of the borrowed funds (see Calverley v Green (1984) 155 CLR 242; [1984] HCA 81).

19. [64]

    In the amended statement of claim, Geoff alleges that, at the time of the purchase of The Springs, he and Bill entered into an oral agreement (see amended statement of claim at [13]-[14]) on terms that included a representation that Geoff would inherit Bill’s share of The Springs (see further below).

20. [65]

    It should be noted that there is no claim here made in contract by Geoff and that, ultimately, in submissions at the hearing Geoff did not place weight on the alleged agreement or representations made by Bill (whether in 1984 or later) until the representation(s) allegedly made in 2008/2009. However, Merilyn and Bruce say, in effect, that the 1984 allegations are central to the pleaded case and that Geoff’s case should fail if those allegations are not made good. (Both sides, albeit in different contexts, say that the other should be held to the pleaded case. At least in this, therefore, they are in furious agreement.)

21. [66]

    Geoff’s evidence is that he and Kaye intended to buy Bill and Jill’s 50% share of The Springs after he repaid the loans he owed for the purchase of the Woolshed Block and for his half of The Springs (see Geoff’s affidavit sworn 8 June 2017 at [86], [107]). (Merilyn and Bruce place reliance on this as being inconsistent with Geoff’s pleaded claim that from 1984, he relied on an oral agreement or representation that he would inherit The Springs.)

22. [67]

    As noted above, in 1987 and 1988 there were changes to the partnership structures in place among the family members.

23. [68]

    Bruce deposes that, in the financial year ending 20 June 1987, Geoff sold a 25% interest in The Springs Partnership (then trading as The Springs Pastoral Co) to Kaye, with a loan from the partnership (see Bruce’s affidavit sworn 28 September 2015 at [43](b)).

24. [69]

    In the 1988 financial year, The WJG Bassett Partnership came to an end. By then, the Springs Pastoral Co partnership was formed (with each of the four partners – Bill, Jill, Geoff and Kaye – having a 25% share).

25. [70]

    Merilyn and Bruce point out that there was no winding up or settlement of accounts for The WJG Bassett Partnership and that the assets recorded in relation to livestock and equipment were identical in the Springs Pastoral Co partnership accounts with minimal changes to Bill and Jill’s capital accounts.

26. [71]

    Relevantly, however, The Springs was not recorded in the Springs Pastoral Co accounts. Rather, there was an entry in the accounts for a “Property Purchase Advance WE, EJ and GW Bassett” in the sum of $245,974 (which increased to $289,974 in the 1989 financial year). In their concurrent evidence at the hearing, the two accounting experts (Mr Antony Samuel and Mr Hugo Loneragan) agreed that the Property Purchase Advance there recorded was a receivable (or asset) in the books of The Springs Partnership and represented a debt owed by Bill, Jill and Geoff to the partnership. Further, Mr Loneragan accepted in cross-examination that he had not in his calculations accounted for Jill’s debt to The Springs Partnership in this regard. He accepted this would require an adjustment of some $72,000 in the amount claimed by Merilyn and Bruce to be owing to Jill’s estate (T 474.37-475.2; T 489.21-39).

27. [72]

    Sue has deposed in her affidavit sworn 22 July 2015 at [45] that Bill and Jill gave her a gift of $10,000 in May 1989 and a further gift of $50,000 some time after 1989.

28. [73]

    Bruce has deposed in his affidavit sworn 28 September 2015 (at [20](a)) that in early 1990 Bill and Jill gave him around $6,000 and he travelled overseas in 1991.

29. [74]

    In early 1990, Bill and Jill ceased living at Pindaroi and moved into town in Inverell (Geoff’s affidavit affirmed 30 March 2015 at [33]); Geoff’s affidavit sworn 8 June 2017 at [122]) and Geoff and Kaye moved into the Pindaroi homestead. Geoff says that, at about this time, Bill offered to lease him the remainder of Pindaroi to Geoff (being the part of Pindaroi which was not the Woolshed Block) and that Bill told him that “…one day you will inherit this land from us…” (Geoff’s affidavit affirmed 30 March 2015 at [34]). Bruce on the other hand attributes to Jill a statement that “Geoff wants to take over Pindaroi. So we’ve been forced off” (see Bruce’s affidavit sworn 28 September 2015 at [71). I interpose to note that I was taken to nothing to corroborate the suggestion that Bill and Jill did not voluntarily decide to move into Inverell; i.e., that they felt they were being “forced off” the land.

30. [75]

    Geoff deposes that he and Kaye agreed to lease Pindaroi (Geoff’s affidavit affirmed 30 March 2015 at [36]); and that he paid a commercial or market rent to use the land from 1990 to 1998 (see Geoff’s affidavit affirmed 30 March 2015 at [36]; Geoff’s affidavit sworn 8 June 2017 at [138]). Bruce disputes that Geoff paid his parents rent to lease the land (see Bruce’s affidavit sworn 28 September 2016 at [75]). Merilyn and Bruce note that no lease documents have been produced; nor is there a payment for Pindaroi rent in the accounting records. In the defendants’ chronology, Merilyn and Bruce have put a figure on the total rent (calculated at 5% of the land value) that they argue would have been payable, averaging out the property price from 1990 to 1998 (a figure of $310,000), which it appears that they contend was waived for Geoff’s benefit (see, for example, item 79 of the defendants’ chronology). Geoff, however, deposes in his affidavit sworn 8 June 2017 (at [154]) that there was a renegotiation as to the rent from about 1991 so that instead of paying rent he and Kaye were responsible for the maintenance and improvement of the property and in his earlier affidavit evidence he estimates that in the time he leased and lived on Pindaroi he invested approximately $300,000 into improving the property (Geoff’s affidavit affirmed 30 March 2015 at [37]-[39]).

31. [76]

    In 1992, Bill executed a Will (see Sue’s affidavit sworn 22 July 2015, Ex A at p 104; Bruce’s affidavit sworn 28 September 2015, Ex 4 at pp 207-209), in which Geoff was left his interest in Pindaroi.

32. [77]

    Merilyn’s evidence is that at some time prior to 1998 she heard her parents say that “Pinadaroi will form the major portion of Geoff’s future inheritance. The other three of you will share in whatever else remains” (see Merilyn’s affidavit sworn 28 September 2015 at [15]). Merilyn and Bruce emphasise (and I accept that the evidence of the siblings supports this) that the understanding within the family was that Pindaroi was to be Geoff’s “early” inheritance. This is supported by the Discussion Note given by Geoff to Bill shortly before Bill’s death – see below.

33. [78]

    Geoff’s evidence is that, in 1998, he and Kaye wanted to secure their future on Pindaroi. Geoff says that, notwithstanding numerous promises by Bill to devise the property to them in his and Jill’s Wills, he and Kaye negotiated the purchase of the remaining part of Pindaroi. He deposes (see in his affidavit affirmed 30 March 2015 at [40]) that it was too great a risk to rely on his parents’ stated intention that he would inherit Pindaroi on their deaths and that he needed legal title to the land. In cross-examination he said that the concern in this regard was more that of Kaye (see T 61.4-9).

34. [79]

    In any event, Geoff says that, in late 1998, Bill offered (on behalf of himself and Jill) to sell the remainder of Pindaroi (being the part of Pindaroi which was not the Woolshed Block) to Geoff and Kaye for $1,150,000. That is the purchase price recorded in the transfer for the property (Sue’s affidavit sworn 22 July 2015, Ex A at p 123).

35. [80]

    Geoff says that the price was structured on the basis that: (i) $450,000 of the purchase price would be forgiven immediately (as Bill and Jill held the view that the property was actually worth $700,000 but, in accordance with accounting advice they had received, Bill and Jill decided to inflate the purchase price by $450,000 to reduce any future Capital Gains Tax liability to which Geoff and Kaye may have been subject if they ever sold the property); (ii) the amount of $200,000 was payable in instalments over the following 10 years; and (iii) the remaining $500,000 would be forgiven if the $200,000 was paid by Geoff and Kaye in accordance with the relevant payment terms (Geoff’s affidavit affirmed 30 March 2015 at [41]). Hence, Merilyn and Bruce emphasise that the purchase price paid by Geoff (and Kaye) for the balance of Pindaroi, in practical terms, was $200,000.

36. [81]

    Geoff’s evidence concerning this arrangement is consistent with the transaction documents (Geoff’s affidavit sworn 18 October 2018 at [81]). Bill and Jill took security over Pindaroi by way of a registered mortgage dated 17 June 1998 which contained: (i) a certification that Bill and Jill released and forgave $450,000 of the purchase price on the date the mortgage was executed; (ii) a covenant by Geoff and Kaye to pay ten equal instalments of $20,000 on an annual basis concluding in the year 2007; and (iii) a covenant by Bill and Jill to the effect that, if Geoff and Kaye made the ten equal instalments of $20,000, they would forgive and release Geoff and Kaye from the balance of the principal sum (being $500,000) (Sue’s affidavit sworn 22 July 2015, Ex A at pp 124-126). Equivalent covenants are expressed in the special conditions to the Contract for Sale of the land (Sue’s affidavit sworn 22 July 2015, Ex A at p 39 (special condition “F”)). The Epitome of Mortgage also contains equivalent provisions to the covenants given by the respective parties to the transaction (Sue’s affidavit sworn 22 July 2015, Ex A at p 128).

37. [82]

    Geoff says that he and Kaye met their obligations in respect of the payment of $200,000 by way of ten $20,000 payments being made annually, with the last payment being made on 27 June 2007 (Geoff’s affidavit sworn 8 June 2017 at [200]) and that accordingly the $500,000 was forgiven. I do not understand Merilyn and Bruce here to contend otherwise; rather, their position is that Geoff acquired his interest in Pindaroi at a significant undervalue (which they contend is relevant to both aspects of his claim in the primary proceedings). However, they do complain (see in due course below) that there was no disclosure to them of the waiver of this $500,000 loan following Jill’s death when they agreed to waive a smaller debt owed by Geoff to Jill’s estate.

38. [83]

    The mortgage loan was recorded in The Monowai Partnership accounts as “Mortgage Loan GW & KR Bassett” for a value of $680,000; and the Pindaroi land, which had until then been recorded at its cost value of $234,373, was then “removed” from The Monowai Partnership accounts.

39. [84]

    Bill and Jill executed mirror wills on the same day as the transfer of Pindaroi to Geoff and Kaye. Unsurprisingly, the couple’s 1998 Wills no longer included a testamentary gift to Geoff of their interests in Pindaroi (a gift that had been consistent with the promise as to Geoff’s inheritance of the balance of Pindaroi but which was obviously of no utility once the property had been transferred to him inter vivos) and replaced it with a gift of their interest in the stock and equipment on Pindaroi (see Sue’s affidavit sworn 22 July 2015 at [20]; Bruce’s affidavit sworn 28 September 2015 at [77], Ex 4 at pp 210-215).

40. [85]

    Merilyn’s evidence is that, in early 1998, her parents said that “[w]e’ve decided to sell Pindaroi to Geoff on very favourable terms and conditions” and that “[w]e are making new wills. We will leave Pindaroi, all stock and equipment to Geoff, with most of the remainder of the estate to be divided equally between the rest of you” (see Merilyn’s affidavit sworn 28 September 2015 at [17]).

41. [86]

    Bruce has deposed that Jill told him “[w]e’ve let Geoff have his inheritance early by giving him Pindaroi cheaply … we’ll make sure it all evens out in the end” and that “[n]ow that we’ve agreed to give him Pindaroi, Geoff won’t be getting much more from your father and me” (Bruce’s affidavit sworn 28 September 2015 at [78]).

42. [87]

    In or around 2000, Geoff started an agricultural consultancy business (Geoff’s affidavit affirmed 8 December 2015 at [75]). Through his consultancy business, Geoff provided advice to clients located in New South Wales, Queensland, Victoria and South Australia in relation to grain cropping, pastures, livestock, cell grazing, horses, orchards and sugar cane (Geoff’s affidavit affirmed 30 March 2015 at [60]).

43. [88]

    The business was initially undertaken jointly with Kaye under the business name GW & KR Bassett. However, in 2009 Geoff commenced operating as a sole trader (Geoff’s affidavit affirmed 8 December 2015 at [76]; Bruce’s affidavit sworn 28 September 2015, Ex 4 at pp 345-346). Since about 2016, Geoff has provided his consultancy services through a company known as Farm Mojo Pty Ltd (Geoff’s affidavit sworn 4 August 2020 at [9], Annexure “D”).

44. [89]

    Meanwhile, in 2000, Geoff had surgery to remove a pituitary tumour (Geoff’s affidavit affirmed 30 March 2015 at [86]).

45. [90]

    On 30 April 2000, The Springs Partnership was registered for GST. It traded under the name The Springs Pastoral Co (ABN 90 527 598 373) until February 2001. From 2 February 2001 to 17 June 2002, The Springs Partnership traded under the name The Springs Pindaroi Pastoral Co (but with the same ABN). From 17 June 2002 to 11 May 2007 The Springs Partnership traded under the name EJ Bassett & GW Bassett & KR Bassett & WR Bassett (but still with the same ABN).

46. [91]

    In 2004, Bill and Jill sold Dunoola.

47. [92]

    By contract for sale dated 1 July 2005, Geoff and Kaye, together with Bill and Jill, purchased Hurricane Hill (Geoff’s affidavit affirmed 30 March 2015 at [30]). I have noted above the dispute as to whether this land was an asset held by the four individuals jointly or a partnership asset.

48. [93]

    Geoff alleges (see amended statement of claim at [18]) that, after the purchase of Hurricane Hill, he and Bill “renewed” their 1984 oral agreement, including that in consideration of Geoff continuing to run The Springs (and other matters), Bill would leave his share in The Springs to Geoff in his final Will. Geoff’s account of the conversation in relation to this is that Bill said that “[e]verything can pretty much continue on as it is” (Geoff’s affidavit affirmed 30 March 2015 at [30]).

49. [94]

    Pausing here, it is not necessary to enter into debate as to the conceptual distinction between “renewal” or continuation of an earlier agreement and entry into a new or fresh agreement on the same or similar terms because ultimately Geoff does not rely on the 1984 agreement, or any agreement in 1985, as such.

50. [95]

    In 2005, Bill and Jill gave Bruce $50,000 to help Bruce and Edwina purchase a cottage in the Blue Mountains (see Bruce’s affidavit sworn 28 September 2015 at [20](c); Edwina’s affidavit sworn 28 September 2015 at [17]).

51. [96]

    Jill died on 21 March 2007.

52. [97]

    As noted above, Jill executed her last Will on 17 June 1998 (Geoff’s affidavit affirmed 30 March 2015, Annexure H). Jill’s Will appointed Bill and Geoff as her executors and contained, relevantly, the following key terms.

53. [98]

    By cl 3, Jill devised and bequeathed her jewellery to her daughters Sue and Merilyn as tenants in common in equal shares (cl 3). By cll 4 and 5, Jill devised and bequeathed to Bill: (i) her principal residence or any share she held in it as at the date of her death; (ii) various items of furniture; (iii) her “motor car and utility truck usually garaged at [her] said residence or any share therein owned by [her] at the date of [her] death”; (iv) her “two shop properties at Coffs Harbour being the Strata Title Units in Certificates of Title Folio Identifiers 15/SP20740 and 16/SP20740” (cl 4); and (v) all of her “share of any moneys owing to [her] jointly with [Bill] by my said son [Geoff] and his wife Kaye” and made provision to forgive such debts if Geoff or Kaye predeceased her (cl 5).

54. [99]

    By cl 6, Jill devised and bequeathed to Geoff: (i) her share or interest in all farming plant and equipment, machinery and implements used in connection with the running of Pindaroi; and (ii) “[a]n one quarter share of my share in the remaining part of the real estate purchased by me and my said husband from the Estate of the late James Lauder comprising 18.69 hectares or thereabouts and being Lots 1 to 32 inclusive (excluding Lot 8) in Deposited Plan 876448”.

55. [100]

    By cl 7, Jill devised and bequeathed to Merilyn, Sue and Bruce the residue of her property.

56. [101]

    There was a family meeting a couple of days after Jill’s funeral. Relevantly, the matters discussed at that family meeting included Bill’s wish to purchase from the residuary beneficiaries their interest in the farming property that Bill wanted to continue to run (i.e., Jill’s interest in The Springs that formed part of the residuary estate); Jill’s wish that a loan advanced to Geoff and Kaye should be waived; and the basis on which Bill and Jill had structured their Wills.

57. [102]

    As to the first of those matters, Geoff has deposed that, at that meeting, Bill said “I want to buy you all out of some of the property you have been left, she [Jill] left you some property that I need to stay in business, you will all receive more money under this arrangement than is provided for you in your mother’s will” (see Geoff’s affidavit affirmed 30 March 2014 at [91]-[93]). This was seemingly a reference to Jill’s share in The Springs (since that was the subject of a formal transfer from the residuary beneficiaries to Bill in due course – see below).

58. [103]

    Consistent with the above, Geoff has deposed (Geoff’s affidavit sworn 18 October 2018 at [43]) that after Jill died he and Bill agreed to continue farming on The Springs and that there was a conversation in about June 2007 to the following effect:

59. [104]

    As to the second of those matters, Bruce and Edwina say that, at that family meeting, Bill told Geoff, Bruce, Merilyn and Sue (and the other attendees) that Jill had wanted a loan of $69,500 which she had advanced to Geoff and Kaye to be waived (this is the subject of Claim 1 of the first cross-claim).

60. [105]

    According to Bruce, in reply to this statement by Bill, Geoff said that this debt forgiveness was “going to make him debt free for the first time in his life” (T 324.6-7). Geoff denies making this statement. It is submitted that it is inherently unlikely that he would have said this in circumstances where Geoff had significant debts at the time (notwithstanding the $69,500 debt the subject of the debt forgiveness). Bruce accepted, when it was put to Bruce in cross-examination that Geoff may not have made this statement but, rather, it may have simply reflected Bruce’s belief about Geoff’s financial position, that that was “possible” (T 324.19-21; cf T 235.1-7). Edwina, on the other hand, insisted in cross-examination that Geoff had made this statement (T 420.48-421.10).

61. [106]

    As to the third of those matters, as already adverted to the siblings say that Geoff received his inheritance early (in the form of the sale of Pindaroi at an undervalue). Their evidence is that, at the family meeting, Bill said words to the effect that he and Jill considered this to be fair and that they had done their Wills the same way (see Bruce’s affidavit sworn 28 September 2015 at [91]-[92]; Merilyn’s affidavit sworn 28 September 2015 at [19]; Edwina’s affidavit sworn 28 September 2015 at [20]). Geoff, on the other hand, deposes that Bill said “Mum and I structured our wills so that the rest of you will now receive your share of inheritance” (Geoff’s affidavit sworn 8 June 2017 at [727]). On Geoff’s account of the conversation it might be possible to construe what Bill said as relating only to Jill’s inheritance. However, that is not the recollection of the siblings and it would not make much sense as the “evening up” did not occur then.

62. [107]

    On the issue as to Geoff’s “early” inheritance, Edwina’s evidence is that, at some stage in mid-2007, Bill told Bruce and Edwina “Jill and I loaned Geoff the money to buy Pindaroi, and we only made him pay $200,000 for it … he’s got his inheritance now, and I think he’s pretty happy about that” (see Edwina’s affidavit sworn 28 September 2015 at [35]). However, Edwina’s evidence (which seems to contradict Bill’s understanding as she says it was conveyed to her) is that on 24 March 2007 Geoff said to Bruce and Merilyn “I am envious about how much cash you are getting from Mum. I am not getting as much…and I feel jealous about that” (Edwina’s affidavit sworn 28 September 2015 at [23]).

63. [108]

    Geoff’s understanding seems to have been that the “evening up” of the inheritance was what occurred at the time of Jill’s Will (see T 74-75). Geoff sounded genuinely bemused when he said in cross-examination that he thought what his father had said at the family meeting after Jill’s funeral about structuring their Wills was ambiguous and that he was not sure that it meant anything (see T 76-77). I consider that Geoff was genuine in his denial that he knew the residue included The Springs (T 74). Geoff was adamant that Bill had reneged on his promise for him (T 129) and that he felt betrayed when he later learnt about the Will (T 119.35-40).

64. [109]

    Each of Merilyn, Sue and Bruce received a sum of $595,000 from Jill’s estate (Bruce’s affidavit sworn 28 September 2015 at [20]). Geoff received $214,545.68 from Jill’s estate (Geoff’s affidavit affirmed 30 March 2015 at [99]). Bruce’s evidence is that he did not see Jill’s Will following her death and that he “didn’t think [he] had ever read a will until 2014” (Bruce’s affidavit sworn 28 November 2015 at [91]-[92]).

65. [110]

    Pausing here, looking at in broad (albeit rough) terms; one can compare the siblings’ inheritance from Jill’s estate as follows: the residuary beneficiaries received close to $600,000 each; Geoff received around $215,000. Geoff had already in effect received the benefit of whatever amount is attributed to the sum forgiven in respect of the Pindaroi loan (at least $500,000, if his account of an artificial inflation of the purchase price for GST purposes is correct; or $950,000 if it is not). In other words, compared to the siblings’ $600,000 each, on one view Geoff received in effect around $715,000 but on another view around $1.165m. On the former view, there is nowhere near as stark a difference in the comparative “inheritance” by the siblings (around $115,000) as on the latter (around $565,000). Further, this does not take into account Geoff’s claimed expenditure on The Springs (which he valued at some $300,000). Therein seems to lie the seed of the siblings’ (or at least Merilyn and Bruce’s) discontent with the benefits that Geoff has already received compared to what they will receive out of their father’s estate. Geoff’s position, on the other hand, was that actually his siblings had received much more by way of inheritance than he had, and that he had received about half as much as them (see T 83.5-10). Whether that is true, arithmetically, probably depends on the value to be placed on Geoff’s own contribution to the Springs and how the purchase price for Pindaroi is to be treated.

66. [111]

    Jill’s interest in Hurricane Hill was transferred to Bill by survivorship on 16 August 2007. However, Hurricane Hill continued to be recorded as an asset of The Springs Partnership in the accounts of the partnership from 21 March 2007 through to 15 April 2009.

67. [112]

    On 16 August 2007, Bill signed a discharge of mortgage in favour of Geoff and Kaye in relation to the mortgage debt of $520,000 owed by Geoff and Kaye in respect of Pindaroi. It is noted by Merilyn and Bruce that the mortgage debt was removed from The Monowai Partnership ’s ledgers as at the date of Jill’s death and that the ledgers showed Bill and Jill’s current accounts reduced by $260,000 each with the entry “Transfer of Mortgage Loan bal”. Complaint is made by Merilyn and Bruce that the debt waiver in favour of Geoff and Kaye was not disclosed in the inventory of property prepared for Jill’s estate (see for example their reply in relation to the first cross-claim).

68. [113]

    Merilyn and Bruce note that the inventory of property and Affidavit of Executor filed in relation to Jill’s estate (signed on 16 August 2007): identifies Hurricane Hill as a joint asset of Bill and Jill, and shows Geoff and Kaye as owing $20,000 (with no reference to the $500,000 mortgage); identifies Jill’s one-quarter share of The Springs Partnership with a value of $23,676 but none of the partnership’s livestock, land or bank account; and does not identify Jill’s one-quarter share in Hurricane Hill as an asset of The Springs Partnership.

69. [114]

    On 28 December 2007, a Deed of Release was signed by the residuary beneficiaries of Jill’s estate in relation to Geoff’s debt of $69,500 to Jill’s estate (as already noted, this being the subject of Claim 1 of the first cross-claim). By their reply, Merilyn and Bruce contend that it is unconscionable for Geoff to rely on this Deed of Release (see further below).

70. [115]

    In early 2008, Geoff and Kaye decided to sell Pindaroi and the Woolshed Block and at or around this time they decided to separate (Geoff’s affidavit affirmed 30 March 2015 at [46]).

71. [116]

    On 22 May 2008, a transmission application was made in respect of Jill’s one-quarter interest in The Springs from Jill’s estate to Merilyn, Sue and Bruce. Following this, a one-quarter share in the land was transferred from Merilyn, Sue and Bruce to Bill (for the stated sum of $250,000) Sue’s affidavit sworn 22 July 2015 at [24]; Ex A at pp 143, 145. Complaint is here made by Merilyn and Bruce that only $200,000 was paid to Jill’s estate (see below).

72. [117]

    Bruce and Edwina have deposed to conversations with Bill around the time the interest was transferred in which they say that Bruce asked Bill if that was the market value of the land (The Springs); and that Bill said it was “pretty close” and that “it will be coming back to you and the girls anyway when I’m gone” and that that was not going to change (it is said that Bill said “[n]o, I’ve always planned that you and your sisters will get The Springs”) (see Bruce’s affidavit sworn 28 September 2015 at [103]; Edwina’s affidavit sworn 28 September 2015 at [38]). Merilyn’s evidence is that Bill said to her “I intend to continue farming with Geoff for the foreseeable future. There’s not much point in you remaining as minority partners” (Merilyn’s affidavit sworn 28 September 2015 at [21]).

73. [118]

    From 30 June 2008, The Monowai Partnership was recorded in the partnership records as the “WE Bassett and Estate EJ Bassett” partnership. This continued until disposal of trading stock to Bill at cost value on 30 September 2009 and final tax return on 30 June 2010 (with, it is noted by Merilyn and Bruce, involved no final settlement of accounts or winding up).

74. [119]

    As referred to above, Geoff says that, from late 2008 and continuing in early 2009, Bill made representations to the effect that he would leave his share of The Springs to Geoff. Geoff says that Bill told him that he would devise his interest in The Springs to him (Geoff) in his Will. Geoff relies on these conversations in respect of both his primary (proprietary estoppel) claim and his family provision claim (as to the latter, on the basis that they are relevant to Bill’s testamentary intentions).

75. [120]

    By way of context, Geoff says that, by 2009, he was at a critical juncture of his life, as he was separating from Kaye (Geoff’s affidavit affirmed 30 March 2015 at [62]-[63]) and was in the process of selling Pindaroi (which was where he lived at the time). It is noted that, by that time, Geoff had been developing a consulting business over the period of almost a decade (Geoff’s affidavit affirmed 8 December 2015 at [75]). Geoff says that he was faced with the decision as to whether he would continue farming The Springs with Bill (and invest further funds into The Springs) or, alternatively, sell his interest in The Springs and pursue his consulting business full time (Geoff’s affidavit affirmed 30 March 2015 at [64]-[66]).

76. [121]

    Geoff says that, in 2009, Bill was also at a critical juncture in his life; that Bill was 80 years old; he had spent his working life as a farmer; and he wanted to spend his last years continuing to farm. Geoff says that by early January 2009, Bill knew that Geoff and Kaye were getting divorced and that Geoff was considering selling out of The Springs (which would form part of the process of finalising his separation from Kaye) and going full time into consulting. He says that Bill wanted to keep farming The Springs and wanted Geoff to stay on to make this possible (since, given Bill’s age, Bill was not in a position to work the land himself). It is said that the only way that Bill could continue to farm The Springs was to convince Geoff to continue working the land. Geoff says that, unlike in previous years where Bill had made statements to Geoff in relation to inheriting The Springs (such as his statement in 1984 that one day Geoff could “buy us out of our share or inherit it” (Geoff’s affidavit affirmed 30 March 2015 at [23])), as at 2009, Bill needed Geoff to work The Springs if Bill were to remain farming there.

77. [122]

    Geoff says that he and Bill had a number of discussions in the period from December 2008 to March 2009 about their business options; in particular as to Geoff remaining at The Springs. It is submitted that this is to be expected as this was a very significant issue for both Geoff and Bill during this period and Geoff and Bill spent a considerable amount of time together over this period while travelling to, and working on, The Springs.

78. [123]

    Geoff gives a number of accounts of conversations which occurred over that period (Geoff’s affidavit affirmed 30 March 2015 at [63]); Geoff’s affidavit affirmed 8 December 2015 at [61], [128]; Geoff’s affidavit sworn 18 October 2018 at [45]-[52]). Geoff says that the common elements of those conversations were that: (i) Geoff was considering selling his interest in The Springs and moving to Guyra NSW (and purchasing a property there) with a view to pursuing his consultancy business full time; (ii) Bill asked him to stay in Inverell and continue to hold his interest in The Springs and farm the property; and (iii) if Geoff did so, Bill would devise his half interest in The Springs to Geoff in his Will. Geoff’s evidence is that he agreed to stay and farm The Springs with Bill on this basis.

79. [124]

    Geoff says that he worked on The Springs in the period from 2009 on an unpaid basis; that he invested significant time and effort into the development of The Springs and, through his unpaid work, increased the value of both his interest in The Springs and also the value of Bill’s interest in The Springs.

80. [125]

    In March 2009, (i.e., at around the very time that Geoff says he was having discussions with Bill as to Bill leaving him his share of The Springs in his Will) Bill attended Borthwick & Butler to revise his Will (see Sue’s affidavit sworn 22 July 2015 at [25]).

81. [126]

    In April 2009, Pindaroi and the Woolshed Block were sold by Geoff and Kaye for $4.2 million, the net proceeds being $3,294,683.46 (Geoff’s affidavit affirmed 30 March 2015 at [48]).

82. [127]

    As noted above, on 1 May 2009 the WE & GW Bassett partnership (which later became known as the Bassett Grazing Co) was established between Bill and Geoff (see Geoff’s affidavit sworn 8 June 2017; at Ex B at Tab 43, p 108). Complaint is made by Merilyn and Bruce that there was no final settlement of the accounts or winding up of The Springs Partnership and that its property was transferred to The Bassett Grazing Co Partnership (which Merilyn and Bruce say Geoff and Bill continued to operate as a “reconstituted” partnership – see defendants’ chronology at [162]). Mr Carrigan has deposed that Jill’s interest in The Springs Partnership was transferred to The Bassett Grazing Co Partnership and that he recorded Jill’s interest as having been paid to Bill as a salary allowance in the ledgers of The Springs Partnership.

83. [128]

    Complaint is made by Merilyn and Bruce that no consideration was paid for Jill’s interest in The Springs Partnership (with a value of $121,922.28 excluding Hurricane Hill as at 15 April 2009) and that Geoff and Bill did not collect for Jill’s estate the balance of a loan that The Springs Partnership owed to The Monowai Partnership (with a value of $81,000 as at 15 April 2009).

84. [129]

    Merilyn and Bruce note that Geoff’s cattle were entered in the accounts of The Bassett Grazing Co Partnership and that he was paid for these in September – October 2009.

85. [130]

    Geoff alleges in the amended statement of claim that, on 1 May 2009 (although in his oral evidence he put this as being during the conversations from December 2008 to February 2009), he and Bill again “renewed” their oral agreement that included the promise that Bill would leave his share of The Springs to Geoff in his final Will (see amended statement of claim at [19]).

86. [131]

    On 5 May 2009, (i.e., at around the very time that Geoff says he was having discussions with Bill as to Bill leaving him his share of The Springs in his Will) Borthwick & Butler sent to Bill the second draft of his new Will – the first having been provided on 23 March 2009, noting that Bill had attended their office to provide instructions. On 14 May 2009, Bill executed a new Will. Inconsistently with the alleged oral agreement (and alleged representations), it contained, relevantly, the provision extracted earlier (cl 3, see above) excluding from the bequest to Geoff any interest in real property owned jointly with Geoff.

87. [132]

    It is to be noted that this new Will was executed within a very short time from the time at which Geoff has pleaded that Bill again renewed the promise to leave his share of The Springs to Geoff (i.e., 1 May 2009) (timing that Merilyn and Bruce emphasise as being inconsistent with such a promise or agreement); and, even on the basis that the agreement was reached at an earlier time in 2009, still very close to that time.

88. [133]

    In his affidavit affirmed 30 March 2015 at [63], Geoff deposes that, in establishing The Bassett Grazing Co Partnership in early 2009, he and Bill agreed that:

89. [134]

    It is said by Merilyn and Bruce (see for example the defendants’ chronology at [173]-[174]) that the Monowai loans were transferred to The Bassett Grazing Co Partnership and that, after part payment to Bill, these moneys were “reapplied” as Bill’s capital to pay for the cattle that Geoff had contributed to the partnership; that Geoff brought 475 cattle from Pindaroi to The Springs and contributed these to The Bassett Grazing Co Partnership for a value of $237,500; and that Geoff took partner drawings of $78,750 in cash as a capital adjustment in payment for the cattle.

90. [135]

    The experts note that the capital for the new partnership was comprised of the property transferred from the Springs Partnership, including Hurricane Hill, as well as $160,000 cash contributed by Bill, and Geoff’s cattle (Geoff took $78,750 in drawings) (Loneragan Report, Ex 6 at [4.2.65]-[4.2.84]). The Springs land was also contributed to the partnership (after Jill’s one-quarter share was purchased by Bill).

91. [136]

    The liabilities paid from the estate bank account, totalling $138,370.17, were set out by Mr Carrigan in his Summary of Account in 13 January 2015. The only disputed expense appears to be the sum of $5,916.82 paid by the estate for rates for the 5 lots purchased by Bill (the Claim 9 Lots), which was dealt with in Mr Loneragan’s Report and his Report in Reply (Expert Report of Hugo Charles Loneragan dated 28 October 2019, Ex 7) (Loneragan Report in Reply). The distributions to the beneficiaries from the estate bank account were also noted in Mr Carrigan’s Summary of Account.

92. [137]

    In Mr Lonergan’s report (Ex 6 at 4.2.60) he concluded that:

93. [138]

    Similarly, it is noted that the liabilities of The Monowai Partnership were reconciled in Mr Loneragan’s Report. These expenses were agreed by the experts, except the development costs which Mr Loneragan addressed in his Report in Reply. Finally, it is noted that the solicitor’s costs and disbursements from the solicitor’s trust account for Jill’s sole assets are not in issue in this matter.

94. [139]

    It is noted by Merilyn and Bruce that, from 2009, Bill and Geoff continued to pay equally for the farm’s expenses and capital improvements (fencing, infrastructure, and the like) with the use of contractors, including Geoff.

95. [140]

    As to the contribution of capital to the partnership, Merilyn and Bruce contend that Bill’s contribution of capital to the partnership was greater than Geoff’s.

96. [141]

    It is noted that Geoff was aware that Bill enjoyed testamentary freedom, insofar as he included in his Discussion Note (see below) that Bill was “free to do what you like with your assets” indeed, in cross-examination Geoff accepted that he knew that Wills are revocable at any time (T 66.35-35) and that Geoff also said in the Discussion Note that the development of the farm from 2009 to 2013 had been a positive “project” for him.

97. [142]

    It is noted that on 30 September 2009 there was recorded a s 70-100 election that trading stock of The Monowai Partnership “be treated as having been disposed of at its cost value for taxation purposes at the date of change of partial ownership (i.e., 30 September 2009) to William E Bassett” (see Geoff’s affidavit sworn 8 June 2017, Ex B at Tab 25, p 70).

98. [143]

    On 1 October 2009, The Springs Partnership bank account was closed; but Merilyn and Bruce contend that the partnership was not wound up at that time (first cross-claim at [22]). (The final tax return for the WE Bassett and EJ Bassett tax return, i.e. for The Monowai Partnership, was for the year ended 30 June 2010. The ABN for The Monowai Partnership was cancelled from 20 February 2015.)

99. [144]

    Geoff has deposed (see Geoff’s affidavit sworn 8 June 2017 at [496], that he was paid $69,702.68 from Jill’s estate on 13 October 2009, at which time Bill said to him “[w]e have finalised your mother’s estate and made all the necessary payments to your siblings.… There’s still about $69,000 left in the estate’s account, which is the remainder of extra money I’ve put in and I’d like to give that to you”. (Complaint is made by Merilyn and Bruce as to this “gift” – see below.)

100. [145]

     It does not appear to be disputed that, in the period from 2009 to Bill’s death on 22 January 2014, Bill’s ability to provide physical assistance with the running of The Springs was affected by his age. Geoff’s evidence is that the vast majority of the work on the property was undertaken by him (i.e., by Geoff) (Fiona’s affidavit sworn 11 August 2016 at [16]-[21], [26]-[29]; Geoff’s affidavit affirmed 8 December 2015 at [73]); Howard Paul Judd’s (Judd) affidavit sworn 15 August 2016 at [8]). However, the family members say that Bill enjoyed good health and that he worked on the farm until the week before his death.

101. [146]

     Geoff says that from 2009 to 2014 he and Bill both spent 20 hours a week at The Springs (2 days a week for 10 hours a day). Geoff says that Bill did the financial bookwork for the business; and Mr Carrigan confirmed that “it was principally Bill who provided me with instructions and to whom I directed my queries” for the accounting needs of the farming partnership (Mr Carrigan’s affidavit affirmed 23 June 2017 at [6]). (Merilyn and Bruce note that Geoff also received contracting and other payments from the partnership.)

102. [147]

     During the period from 2007, starting from around the time of the family meeting after Jill’s funeral if not before, it appears that there were discussions not only between various of the siblings but also by one or more of the siblings with Bill as to his testamentary intentions.

103. [148]

     Pausing here, one of the unedifying aspects of this case, as is unfortunately so with many such cases, is the apparent sense of entitlement on the part of one or more of the siblings to an inheritance from their parents (and complaint as to unequal treatment between the siblings); and the pressure placed on the testator (here, Bill) in relation to his or her testamentary dispositions. Indeed, in one of the conversations attributed to Bill (see below), Bill is said to have complained about this. In response to an observation of that kind made by me during the course of submissions, the position of Merilyn and Bruce was put for them that this was a family in which there was transparency as to the parents’ respective testamentary intentions. That may well be so but nevertheless it seems to have led to what was ultimately accepted by Bruce in cross-examination to be a campaign by Bruce (seemingly with the active assistance of Edwina) to persuade Bill that he should not change his Will or should not leave Geoff his share of The Springs in his Will (as I will describe shortly); and to what Merilyn and Bruce similarly characterise as a campaign by Geoff on the other hand, seeking to persuade his father or his siblings as to what he should receive.

104. [149]

     Further, it seems that at least part of the complaint by Bruce and Edwina as to the position ultimately adopted by Sue (reflected, it would appear, in the application made by them for Sue to be removed as the party representing Bill’s estate in the proceedings – at least so far as reference was made by Pembroke J to some hostility on Sue’s part) was that Sue had changed her position as to what she thought was “fair” in this regard. (This can be discerned from the 3 October 2013 email (Ex 9) to which Bruce was taken in cross-examination in which it appears that Bruce sought to encourage Sue to stay resolute in her position and to raise concerns with Bill as to his estate – see below.)

105. [150]

     Ultimately, although it was a matter for Bill to decide how to exercise his testamentary bounty (subject only to any agreement or representation he might be found to have made to the contrary or any later claim for provision under the Succession Act), the consequences of the ongoing dispute between the siblings about this seem to have been that Bruce, on his own evidence (at T 334.1-5), has not spoken with Sue for a number of years and that there is no familial relationship now between Bruce (and Edwina) on the one hand and Geoff on the other. Further, it has led to a very large expenditure on the cost of this litigation the impact of which (one way or another) will inevitably diminish the siblings’ inheritance from their parents’ estates. (With this in mind (to no apparent avail) I raised the idea of mediation.)

106. [151]

     Returning to the chronology, Bruce and Edwina give evidence of a number of conversations with Bill in the period from 2009 until Bill’s death in 2014 concerning his testamentary intentions, the effect of which seems to be that Bill said that he was not going to “give” any more land to Geoff and that he was not planning on changing his Will to leave his interest in The Springs to Geoff (Bruce’s affidavit sworn 28 September 2015 at [106], [143], [164]-[170]; Edwina’s affidavit sworn 28 September 2015 at [40], [59], [86], [87]; Edwina’s affidavit sworn 9 March 2017 at [7]). That, of course, is inconsistent with Geoff’s account of what Bill had promised or represented to him over the years.

107. [152]

     There is evidence that, from late 2012, Geoff complained to Bill and others in the family that he could not afford to buy Bill’s share of The Springs or otherwise continue farming after Bill died. (Merilyn and Bruce rely on this, with some force in my opinion, as being inconsistent with Geoff’s claim that he expected to inherit The Springs and his assertion that he first learned this would not occur on 28 November 2013 – see below.)

108. [153]

     In particular, Bruce and Edwina have deposed to a discussion with Geoff in December 2012 in which they say he stated that he wanted more inheritance from his father; and to a discussion with Sue in which Sue told Edwina that she thought Geoff was “conning” Bill to change his Will to leave him the farm. (Sue did not deny this evidence in her affidavit.) (See Bruce’s affidavit sworn 28 September 2015 at [143]; Edwina’s affidavit sworn 28 September 2015 at [59].)

109. [154]

     According to Bruce, there was a family discussion at Sue’s home in Tamworth at Christmas 2012, in which Bill told Sue, Bruce, Edwina and Sue’s husband (Bruce Cameron) that he was concerned that Geoff may not have “enough money to stay farming after I’m gone” (although Bruce says Bill also confirmed he was not going to change his Will or give Geoff more land) (Bruce’s affidavit sworn 28 September 2015 at [143]). Specifically, Bruce deposed to the following discussion with Bill in late 2012 (at [143]):

110. [155]

     Pausing here, it seems to be the belief held by at least some of the siblings (and by Edwina, having regard to her evidence as to Geoff showing her brochures of property in Noosa) at that time that Geoff did not wish to continue farming The Springs and would just sell the property if it were left to him in its entirety. That is not what I understand Geoff’s position to be.

111. [156]

     Sue admitted in cross-examination that she told Bill during this discussion in late 2012 that Geoff was “conning him”, and that she had sought to persuade Bill not to change his Will as Geoff had “had enough” (at T 187.30-188.17):

112. [157]

     The issue as to Bill’s testamentary intentions seems to have come to a degree of prominence within the family by 2013, presumably precipitated by the concern of the siblings (to which Bruce deposes) that Geoff was trying to get Bill to change his Will.

113. [158]

     In June 2013, Bruce and Edwina married. Also at around that time, Geoff met Fiona. Geoff and Fiona started dating in August 2013 and her evidence is that she met Bill around that time (see Fiona’s affidavit sworn 11 August 2016 at [5], [16]).

114. [159]

     Sue’s evidence is that she overheard what is described as a heated discussion between Bruce, Edwina and Bill in August 2013 in which she says Bill and Edwina were expressing contrary views regarding Bill’s assets and business dealings with Geoff. Sue says that she observed Bill “stand up” during this conversation and say in a raised voice “You are wrong, it’s not like that. Now just drop it” (Sue’s affidavit sworn 22 July 2015 at [29]). Sue said that on this occasion, her father was “as angry as I have even seen” him (Sue’s affidavit sworn 22 July 2015 at [29]). Sue further recounts a conversation she had with her father the following day in which he said that “[i]f I thought there would be fights over my Will I might just leave it all to the grandchildren” and that “[t]hey [in the context being a reference to Bruce and Edwina] don’t understand and won’t listen. I don’t see it the same way” (Sue’s affidavit sworn 22 July 2015 at [30]). See Bruce’s account in Bruce’s affidavit sworn 28 September 2015 at [146]:

115. [160]

     Bruce and Edwina each gave evidence that, in August and September 2013, Bill told Bruce and Edwina that he did not know what Geoff had received from the sale of Pindaroi in 2009, but that Geoff had told him he “doesn’t think he can afford to buy you all out of The Springs now”, and he had complained he was not being “compensated enough” for work on The Springs because “Capital gains aren’t as good as they used to be” (Bruce’s affidavit sworn 28 September 2015 at [146], [151]; Edwina’s affidavit sworn 28 September 2015 at [64]). It is in the context of that conversation that it is said that Edwina obtained a copy of the transfer document for the sale of Pindaroi and that Bruce showed Bill this during the Coffs Harbour holiday in September 2013 (see below). (Edwina was quite forthright about this in cross-examination, making the point that the transfer document was publicly available (T 400.40-45).)

116. [161]

     In the period from September/October 2013, Geoff and Fiona travelled together to Mongolia.

117. [162]

     In September 2013, Bruce and Edwina had a holiday with Bill at the Boambee Bay resort at Coffs Harbour (Bruce’s affidavit sworn 28 September 2015 at [149]). Bruce’s evidence is that during that holiday Bill “gave” (or, as he ultimately framed it, showed) Bruce some “biographical notes” (the biographical notes) that Bill had prepared (see Bruce’s affidavit sworn 28 September 2015 at [149]; Edwina’s affidavit sworn 28 September 2015 at [69]). I refer in due course to the cross-examination of both Bruce and Edwina in relation to those notes. Suffice it for present purposes to note that the other siblings’ recollection is that Bill had prepared some biographical notes for a speech he gave on the occasion of his 80th birthday and at a “Probus Club” event; and it is likely that these are those notes.

118. [163]

     By at least October 2013, it appears that Bruce (with the assistance of Edwina) was taking steps to ascertain what financial provision Geoff had received over the years (including how much he had received from the sale of Pindaroi) and was encouraging Sue to remain resolute in seeking to persuade Bill not to make further provision for Geoff or at least to voice any concerns she had as to this issue.

119. [164]

     Bruce was cross-examined about an email that he accepts he sent to Sue on 3 October 2013 (but which he said he had forgotten), from which it emerged that Bruce (and/or Edwina) had indeed attempted to calculate the revenue from The Springs and that Bruce was accusing Geoff of dishonesty about his situation (T 315-316). Bruce’s evidence, less plausible in my opinion, was that Bill was not sure what Geoff had sold Pindaroi for and that this was why the transfer document had been obtained.

120. [165]

     Bruce accepted that the 3 October 2013 email contained statements to the effect that “[s]o Mum and Dad obviously knew what was fair to all their kids for a long time and that was Geoff to get a 10% share or less”, “[w]e’ve done nothing since Mum died to deserve that being changed, far from it, and Geoff is being dishonest about his situation” and “[s]o in my view, Mum was fair to us. Dad should do the same” (see at T 316.30-39). It is said for Geoff that Bruce initially sought to pass blame to Sue and gave evidence that in this email he was just “reflecting here the fears that my sister had that he [Bill] might” change his Will (T 316.45-8). The following evidence was given in that regard by Bruce (T 317.22):

121. [166]

     Bruce ultimately accepted that he and Edwina were “campaigning” Bill in relation to his Will (T 317.48-T 318.15):

122. [167]

     At the conclusion of Bruce’s cross-examination (in the context of questioning as to a conversation with Bill in November 2013 – as to which I say more below), Bruce again accepted that he had been pursuing his father in relation to his testamentary intentions when giving the following evidence (T 349.19-26):

123. [168]

     As to the 3 October 2013 email (that Bruce said he had forgotten), Merilyn and Bruce seem to complain that Sue had “evidently retained” and “provided” it to Geoff but that she did not disclose it in her affidavits as the defendant for Bill’s estate. Merilyn and Bruce point out that this is the only contemporaneous record of the discussions between Bill, Bruce, Edwina and Sue at this time.

124. [169]

     Merilyn and Bruce place emphasis on the fact that Bruce’s email records that Bill had “said he was only leaving Geoff the stock and equipment, which he said was about $250,000” and that (see at Ex 9):

125. [170]

     It is said that Bill’s share of the partnership’s stock and equipment had a value of about $261,000 at the date of Bill’s death on 22 January 2014 (consistent with Bill’s estimate of about $250,000 noted in Bruce’s email).

126. [171]

     Merilyn and Bruce argue that, contrary to Geoff’s submissions, Bruce’s email is consistent with his and Edwina’s evidence that Bill told them in August and September 2013 that Geoff had complained about whether he could afford to buy Bill’s share of The Springs when he died.

127. [172]

     Merilyn and Bruce say that Bruce’s 3 October email also supports his and Edwina’s evidence about what Bill had told them regarding his testamentary intentions (see Ex 9):

128. [173]

     As noted earlier, the evidence of each of Merilyn, Bruce and Edwina that, at the family meeting after Jill’s funeral on 23 March 2007, Bill told the family, including Geoff, that he had received his inheritance early, and he and Jill structured their Wills the same way so Geoff would not receive much more inheritance (see above) (see in this respect Geoff’s affidavit sworn 8 June 2017 at [727]). Geoff deposes that when Bill waived his loan for Pindaroi in 2007, Bill told him that this “...$500,000 had been part of my inheritance, which I had been given early” (Geoff’s affidavit sworn 8 June 2017 at [197]); and both in his Discussion Note and in cross-examination acknowledged that Jill had told him that she and Bill “both thought [they] had made a mistake selling [Geoff] Pindaroi as its capital value had grown too high and that was not fair to [his] siblings” (T 80.45-81.5).

129. [174]

     Sue’s evidence in cross-examination was that she understood that Geoff had received his “inheritance early” when their parents gave him Pindaroi (T 179.20):

130. [175]

     Sue accepted that she believed her father left his 2009 Will the way he did because he would have thought it was “grossly unfair” to leave Geoff more as he had been given Pindaroi, and that she thought in around December 2013 that her father had significantly favoured Geoff during his life (T 180.30; 187.30-45).

131. [176]

     Sue has deposed that, between 4 to 7 October 2013, Bill told her that he had not spoken to Geoff about “his future plans”, that he believed Geoff was farming on The Springs because he “loves it as much as I do”; and that Bill indicated that he expected that he and Geoff would sell the farm in the future (Sue’s affidavit sworn 22 July 2015 at [32]). It is noted that this alleged conversation immediately followed Bruce’s email of 3 October 2013.

132. [177]

     Sue’s evidence is that, during this discussion, Bill said that he and Geoff “should make more money” from The Springs farm, but that “at this stage of my life I don’t care”, and that the following conversation then occurred (Sue’s affidavit sworn 22 July 2015 at [32]):

133. [178]

     One of the more implausible aspects of the evidence in this case, in my opinion, was the evidence that Bruce and Edwina gave of a meeting they had with Geoff and Fiona at the “Belvedere Hotel” in Redcliffe, Brisbane, on 27 October 2013. It is relevant to note that this was the first occasion that Bruce and Edwina had met Fiona (Bruce’s affidavit sworn 28 September 2015 at [155]); and that, as at that date, Fiona had only been “dating” Geoff for two months (Geoff’s affidavit affirmed 8 December 2015 at [78]; Fiona’s affidavit sworn 11 August 2016 at [42]).

134. [179]

     Fiona’s evidence (as noted above) is that she met Geoff in August 2013 (and that she met Bill “on or around August 2013”). Edwina’s evidence (to the contrary of that of Fiona) is that, in September 2013, Bill indicated to Edwina that he had not met Fiona. As noted above, Fiona and Geoff spent September and October 2013 on holiday together overseas in Mongolia.

135. [180]

     Bruce and Edwina both say that, at this October 2013 meeting (which was apparently a lunch over a couple of hours), Geoff denied that he had received gifts and loans from his parents, including to acquire the family farm, Pindaroi; asserted that he paid full market price for Pindaroi, being $900,000 plus $300,000 infrastructure, and that he was a “self-made” man (see Bruce’s affidavit sworn 28 September 2015 at [156]).

136. [181]

     Bruce accepted in cross-examination that, at the time of this meeting, Bruce had been thinking “a lot” about how much financial assistance Geoff had received from his parents (T 339.36-45) and had formed the view that Geoff had received a disproportionate share of the wealth that Bill and Jill had accumulated (T 339.45-50). Edwina accepted that by the time of this meeting, she believed that Bill and Jill had been very generous to Geoff financially and that they had been more generous to Geoff than Bruce (T 400.47-401.15).

137. [182]

     Edwina also accepted that she and Bruce had discussed what it was that Geoff had received from his parents and that she had conducted a title search in relation to Geoff’s sale of Pindaroi (T 400.28-401.2); and that, by this time, she and Bruce had being trying to conduct calculations of how much Geoff had received from his parents (T 401.25-42).

138. [183]

     It is not in dispute that, at this meeting, Bruce and Edwina asked Geoff a series of questions concerning his financial circumstances. The factual dispute concerns, in part, who raised this topic. Bruce and Edwina are adamant that it was Fiona who introduced the topic (which seems somewhat implausible in my opinion for someone, only recently in a relationship meeting her partner’s sibling for the first time particularly when, as I explain below, Fiona had not been privy to the family meeting about which, according to Bruce and Edwina, she was here so strident in holding forth).

139. [184]

     Bruce and Edwina attribute a number of statements to Fiona during the course of this lunch. Relevantly, Bruce has deposed that, after a discussion concerning Geoff and Fiona’s overseas travel (as noted above, the couple having recently returned from a trip to Mongolia), Fiona said “[y]ou know, people like Geoff had to take a lot of financial risks in their lives, and they haven’t had anyone to help them. Geoff’s a self-made man, he’s been successful and made a lot of money from his own efforts and his smart dealings in real estate. He had to struggle on his own, without any help from his parents” (Bruce’s affidavit sworn 28 September 2015 at [156]; T 340.17-49). It is submitted for Geoff (and as a matter of common sense I would accept) that it is inherently improbable that Fiona, who had by then been Geoff’s partner for a mere two months, would have made such a statement unprompted (and, for what it is worth, such assertiveness is inconsistent with the demeanor Fiona displayed during cross-examination).

140. [185]

     Bruce, in his affidavit, also attributes the following statement to Fiona during the course of the meeting (Bruce’s affidavit sworn 28 September 2015 at [157]):

141. [186]

     It is noted by Geoff that, during cross-examination, Bruce gave a different account of this conversation. Relevantly, Bruce alleged in cross-examination that Fiona said “You shouldn’t have believed, you know, Bill when, you know, when he said that at the family meeting” [emphasis added] (T 343.10-3).

142. [187]

     The reference to the “family meeting” did not appear in Bruce’s account of the conversation in his affidavit. However, Edwina’s account of this conversation in her affidavit did contain a reference to “that meeting” (Edwina’s affidavit sworn 9 March 2017 at [22]). This is relied upon by Geoff in support of the adverse credit findings sought in relation to Bruce and Edwina’s evidence.

143. [188]

     Edwina’s affidavit deposes that she said at the meeting at Redcliffe that “Geoff was at the meeting in 2007 when Bill told everyone that Geoff got his inheritance early when Bill and Jill gave him ‘Pindaroi’ and Geoff has never denied that before now. Geoff, you were there at the family meeting when Bill discussed it”, to which she says Fiona replied “You should have known that Bill was lying to everyone at that meeting” (Edwina’s affidavit sworn 9 March 2017 at [20]-[21]).

144. [189]

     Bruce later during cross-examination said (contrary to his earlier evidence) that Fiona had not mentioned the family meeting (T 346.24-347.25). (For Geoff, it is suggested that Bruce’s earlier evidence is explicable by the fact that he had recalled Edwina’s version of events, noting his evidence that he had read her affidavits and discussed this meeting with her (T 343.39-41); as to which, see further below.)

145. [190]

     Edwina has deposed that Fiona made the following statements at the meeting: “[s]ome people had to risk a lot to be successful in the property boom. And that’s been Geoff’s situation too. He’s made a lot of money developing property, but he took risks to be successful as a self-made-man, with no help from his parents”, “[y]ou should have known that Bill and Jill lied to the family about Geoff” and “[y]ou should have known that Bill was lying to everyone at that meeting” (Edwina’s affidavit sworn 28 September 2015 at [74]; Edwina’s affidavit sworn 9 March 2017 at [20]-[21]).

146. [191]

     Both Geoff and Fiona deny that Fiona made such statements. Fiona gives evidence that this meeting was the first time she had met Bruce and Edwina; that she had only been dating Geoff for two months; and that she had no knowledge of Geoff’s personal financial arrangements at that time (Fiona’s affidavit sworn 11 August 2016 at [42]). It is submitted for Geoff (and I agree) that it is highly unlikely that Fiona would have made the comments attributed to her in circumstances where she had no knowledge of Geoff’s financial circumstances and was meeting Bruce and Edwina for the first time; and that it is also inherently unlikely that Fiona would have referred to what occurred at the “family meeting” following Jill’s funeral if she was not at the meeting (which had occurred some six years prior to when Geoff and Fiona started dating). (It is further submitted for Geoff that Bruce and Edwina’s evidence in this regard reflects poorly on their credibility; an issue I consider in due course.)

147. [192]

     Bruce’s evidence is that, immediately after the Redcliffe meeting, Bruce spoke to Sue, on 27 October 2013, and that he later spoke to Bill on 29 October 2013, about the things Geoff said at the Redcliffe meeting.

148. [193]

     In Bruce’s 29 October 2013 conversation with Bill, Bruce says that he told Bill that “Geoff said he paid you and Mum $900,000 for Pindaroi”, that “[Geoff] was really hostile toward [Bill]”, that Geoff had said that Bill and Jill had been “telling lies to the family for years about the assistance they’ve given him”, and that Geoff had claimed that Bill “had never given him any loans and he had to borrow all his money from the bank” (Bruce’s affidavit sworn 28 September 2015 at [160]).

149. [194]

     Bruce was cross-examined concerning the conversation he had had with Bill on 29 October 2013 and, in particular, he was asked why he said the above things to Bill (T 296.10-46). Bruce’s evidence was that he raised these issues with Bill because “the discussions that were taking place were clearly causing rifts in the family” and he hoped that Bill would talk to Geoff about these things (T 296.42-6; T 301.36-39; T 303.26-304.19). There was then the following exchange in cross-examination (T 303.26-T 304.19):

150. [195]

     The suggestion that Bruce was somehow altruistically attempting to clarify within the family something he felt was already clear in relation to Bill’s Will makes little sense. It seems to me abundantly clear that Bruce and Edwina by this stage were concerned to ensure that Bill did not leave a greater share of his estate to Geoff and that the only common sense explanation for the things Bruce conveyed to Bill in this conversation (and others) was indeed an attempt to influence Bill against Geoff or Geoff’s claims on his testamentary bounty.

151. [196]

     Meanwhile, Fiona gives evidence of a conversation with Geoff in or around October 2013 in which she says Geoff told her about Bill’s promise to leave him Bill’s interest in The Springs (Fiona’s affidavit sworn 11 August 2016 at [33]). (That conversation is relied upon by Geoff simply to dispel any suggestion of recent invention in relation to Geoff’s allegations that Bill had promised to leave his share of The Springs to Geoff.)

152. [197]

     Bruce says that, shortly after the October 2013 conversation, in a phone conversation on 17 November 2013, Bill told Bruce about the following discussion he had with Geoff (it being noted for Merilyn and Bruce that Bruce has provided his phone records to establish this phone call) to the following effect (Bruce’s affidavit sworn 28 September 2015 at [161]):

153. [198]

     Geoff denies that he had the discussion above attributed to him in Bruce’s account of the telephone conversation with Bill. However, Geoff does say that in about November 2013 he had a conversation with Bill (it is said that this conversation arose from antagonism from Bruce and Edwina towards Geoff about inheritances from Bill).

154. [199]

     It is noted by Merilyn and Bruce that, in his evidence in chief, Geoff did not depose to a date for this first discussion with Bill, and he simply stated this discussion occurred in “November 2013”, but that Geoff later placed this discussion as occurring on 28 November 2013, when he says he “just found out that day” from his father that he would not inherit his share of The Springs (this being is almost a month after the meeting with Bruce and Edwina at Redcliffe) (T 79.30-50; Geoff’s affidavit sworn 8 June 2017 at [346]).

155. [200]

     Geoff says that in that November 2013 conversation Bill suggested to Geoff that his Will provided that Geoff would receive 25% of his estate and that it should not cost Geoff too much more to buy out Bill’s half-share in The Springs from the other three children. Geoff says that he complained that this was not what Bill had told him in 2009 and that it was not fair (Geoff’s affidavit affirmed 30 March 2015 at [106]). Geoff says that this was the first occasion on which Bill gave any indication to Geoff that he intended not to fulfil his promise to leave his interest in The Springs to Geoff in his Will and, instead, to give Geoff 25% of his assets upon his death.

156. [201]

     Fiona gives evidence of conversations to which Bill was a party which are relevant to Bill’s promise to leave his interest in The Springs to Geoff. In particular, Fiona gives evidence that she was present during the above November 2013 conversation. Fiona’s account of the conversation (Fiona’s affidavit sworn 11 August 2016 at [30]), which Geoff says is broadly consistent with his own account, is that:

157. [202]

     Fiona’s evidence is that she witnessed another conversation between Geoff and Bill to the following effect (Fiona’s affidavit sworn 11 August 2016 at [32]):

158. [203]

     Pausing here, the existence of any such “long letter” is hotly in dispute and the subject of serious credit submissions against Bruce and Edwina – see below.

159. [204]

     Fiona also deposes to a conversation with Bill on an occasion when Geoff, Bill and she went out to The Springs. Fiona says that on that occasion Bill said to her, in relation to The Springs, “I want to see this farm reach its potential before I go and for when Geoff gets it” (Fiona’s affidavit sworn 11 August 2016 at [26]).

160. [205]

     Geoff says that, when he pressed Bill concerning this issue several weeks after the November 2013 conversation to which he has deposed, Bill said they could “talk about it after Christmas” (Geoff’s affidavit affirmed 30 March 2015 at [107]). (However, before any such discussion took place Bill died on 22 January 2014.)

161. [206]

     In their further submissions (about which Geoff makes the complaint noted above) Merilyn and Bruce say that there are inconsistencies in the version of the November 2013 conversations given by each of Geoff and Fiona. The evidence of those conversations is that in Geoff’s version of the first discussion in November 2013, Geoff claims that he said to Bill:

162. [207]

     In Fiona’s version of this discussion, neither Geoff nor Bill referred to Bill’s Will, and Bill did not tell Geoff he would inherit 25% of his estate; but, rather, it was Geoff who said those words to Bill (Fiona’s affidavit sworn 11 August 2016 at [30]):

163. [208]

     In Fiona’s version, Bill said “It will be all right. It will blow over and we can continue how we are. I’ll sort Bruce out” (Fiona’s affidavit sworn 11 August 2016 at [30]). Another apparent inconsistency between the two versions of this discussion is that Geoff claims that he reminded Bill that in 2009 “you told me that I would inherit your half of The Springs”, and that Bill replied “Yes I know that I said that...”, whereas in Fiona’s version, Bill did not agree with Geoff’s statements that he had promised Geoff the farm, or that he would receive 25% of his assets. Fiona says Bill replied to Geoff to the effect that he thought Geoff was overreacting and did not see why things had to change (Fiona’s affidavit sworn 11 August 2016 at [30]).

164. [209]

     Geoff gives evidence of a second conversation with Bill around this time, which Geoff says occurred “a couple of weeks” after his first discussion with Bill on 28 November 2013 (Geoff’s affidavit affirmed 30 March 2015 at [107]). In Fiona’s account of this conversation, Bill said: “I’m too old for these sorts of problems. Let’s talk about it in the New Year” (Geoff says and there is little practical difference in the timing here suggested, Bill said “Let’s talk about it after Christmas”).

165. [210]

     Bruce’s evidence is that on 22 December 2013, he telephoned Bill to wish him a happy 85th birthday and that Bill told him that “Geoff has given me a letter” (Bruce’s affidavit sworn 28 September 2015 at [163]).

166. [211]

     As I understand the chronology of events here put forward by Bruce, that “letter” is what has been referred to as the Discussion Note, which Bruce says was given to Bill by Geoff after Bill returned home from his holiday in Coffs Harbour on 12 December 2013. Geoff, however, claims that he gave his Discussion Note to Bill about two weeks earlier, on 29 November 2013, following their first discussion on 28 November 2013 (T 79.30-50; Geoff’s affidavit affirmed 30 March 2015 at [106]-[107]); and Fiona’s evidence supports this in that she says that Geoff wrote his Discussion Note after the first discussion with Bill in November 2013 (Fiona’s affidavit sworn 11 August 2016 at [31]).

167. [212]

     Sue gives evidence that in about November 2013, she received a phone call from Edwina in which Edwina told her that “Geoff has stuffed up” by giving a letter to Bill which set out his farming history and which purportedly failed to recognise certain loans Geoff had received (Sue’s affidavit sworn 22 July 2015 at [35]). (This places the giving of the Discussion Note closer to the time Geoff and Fiona say it was written than when Bruce says he learnt about it.)

168. [213]

     In the Discussion Note, Geoff stated that he and Kaye offered to buy the Woolshed Block in 1984 which they paid for “over five years”.

169. [214]

     The Discussion Note said, in relation to Pindaroi, that:

170. [215]

     About The Springs, the Discussion Note said:

171. [216]

     In terms of Bill’s future plans for The Springs, Geoff wrote:

172. [217]

     Insofar as Geoff claimed in his oral evidence that he wrote the Discussion Note to Bill in order to “hold him to his promise he made in 2009”, Merilyn and Bruce note that the document makes no reference to any alleged promise, at any time, that Geoff would inherit The Springs, or to any claim that Bill had “reneged” upon such a promise, and that it also contains no reference to any proposal that Geoff would inherit 25% of Bill’s estate (T 79.30-50; T 124.15). Rather, Geoff’s only reference to inheritance in his Discussion Note was his “understanding from mum and dad that one day we would inherit the 2/3’s of Pindaroi that belonged to them”.

173. [218]

     Merilyn and Bruce say that the Discussion Note sets out in detail the history of Geoff’s expectations about Pindaroi and his understanding of the risk that his parents could change their mind about leaving Pindaroi to him.

174. [219]

     Merilyn and Bruce point out that, in response to Geoff’s statement in the Discussion Note that he repaid the consideration for the Woolshed Block over five years, Bill noted in the Shopping List Note (see below) that he and Jill “gifted” Geoff $30,000 as a reduction in the land’s sale price of $145,000, after which they “gifted” a further loan repayment of $45,200.00 in 1986, leaving a loan balance of $70,000 to be repaid by Geoff. Merilyn and Bruce say that these amounts are supported by Bill’s records, and show that Bill and Jill gifted Geoff $75,200 from the sale price of the land of $145,214 (Bruce’s affidavit sworn 28 September 2015 at [30]-[37]).

175. [220]

     It is said that Geoff agreed that Bill would continue to use the “woolshed, sheep shower dip, and the sheep yards” for no payment (contrary, it is said, to his submissions) and the transfer stated only “parts of portion 32, Lot 1 in DP113861” were included in the sale so as to exclude the land where the shearing shed and yards were located, which Bill and Jill continued to own (Ex 4 at Tab 5).

176. [221]

     Insofar as Geoff stated in the Discussion Note that he “borrowed the money” to buy his half of The Springs land, Merilyn and Bruce say that he failed to acknowledge the “Loan to Springs working Acc.” of $100,000 from The Monowai Partnership in 1985 which Bill noted on the Shopping List Note was “Never paid off until Jill died” and “was still 162,000. Int Free”. Mr Loneragan calculated that the interest waived by Bill and Jill for this loan from 1985 to 2009 had a value of $1,934,855.71 compound and $407,419.82 simple interest (Loneragan Report at Sch 2.3(a)).

177. [222]

     Mr Lonergan has calculated that the interest waived by Bill and Jill for the loans they advanced to Geoff to buy Pindaroi had a value of $803,799.38 compound and $446,088.33 simple interest (Loneragan Report at [4.2.26]). (It is noted by Merilyn and Bruce that Bill and Jill also gifted Geoff and Kaye $450,000 from the sale price of Pindaroi in 1997 and a further $500,000 was gifted by the mortgage release signed by Bill on 16 August 2007 (Ex 5 at p 547).)

178. [223]

     It is said that, contrary to his submissions, Geoff also acknowledged he did not pay rent to his parents to “lease” the farm from 1990 to 1998 which he said was 5% annual value of Pindaroi (Geoff’s affidavit sworn 8 June 2017 at [154]). It is said that Geoff did not disclose the value of the rent or the income he received from his use of the farm during those years. However, the value of the land was $1,150,000 in 1998, which Merilyn and Bruce say would have meant the rent waived by Bill and Jill for the previous 12 months alone was $57,500.

179. [224]

     Merilyn and Bruce say that Bill’s response to the Discussion Note was the Shopping List Note (so-called because it was written on a printed notepad with the header “Shopping List”; not because this was Bill’s description of the note).

180. [225]

     That note was as follows:

181. [226]

     As to the Shopping List Note, Merilyn and Bruce point out that, in 2009, Bill re-applied the balance of the loan of $162,000.00 as capital to the new partnership for the purchase of Geoff’s cattle; and that in Bruce’s email to Sue on 3 October 2013, Bruce noted that Bill told him that when he bought half Geoff’s cattle he “...off-set Geoff’s $160,000 loan owed over the Springs to do so” (Ex 9). It is said that the email is thus consistent with the Shopping List Note.

182. [227]

     In cross-examination, Geoff said that Bill showed him the Shopping List Note about one week after he (Geoff) had given Bill his Discussion Note (T 127.10-15). Merilyn and Bruce point out that neither Geoff nor Fiona deposed to any discussion with Bill about Geoff’s Discussion Note or Bill’s Shopping List Note in response.

183. [228]

     I have referred above to a conversation which Sue deposes took place with Bill while Sue, Bill and Merilyn were on holiday in Coffs Harbour in December 2013. Sue says that the conversation with Bill was in the period from 6 to 13 December 2013 (Sue’s affidavit sworn 22 July 2015 at [37]). It is not suggested that Merilyn was present during this conversation. Sue deposes that Bill said to her (consistent with Geoff’s Discussion Note) that:

184. [229]

     Significantly, in my opinion, Sue deposes to the following being said:

185. [230]

     Sue gave evidence during cross-examination that the way in which Bill conveyed the above statement left her with the impression that Bill was admitting that he misled Geoff (T 194.20-35). (I interpose to note that I place no weight on the impression that Sue formed, not least given the vagueness of Sue’s evidence that “it was sort of the way he said it in that he sort of admitted that he may have misled Geoff and that Geoff believed that he had left it to him”. Nevertheless, if accepted (and I do consider this evidence is plausible and should be accepted), the evidence of this conversation is in my opinion telling as to what Bill understood at the time was probably Geoff’s expectation – the import of which I consider in due course.)

186. [231]

     Sue’s evidence is that, during the conversation with Bill, Bill said to her things that included that: he wanted Geoff to be able to continue to farm The Springs; he wanted to be fair and had to leave Geoff more; he was still thinking about it, and could do it one of two ways: either leave his half of the farm to Geoff or leave Geoff 25% of his estate to help Geoff buy the other three siblings out; if he left 25% of his estate to Geoff he thought Geoff would still have to put some of his own money in to buy out his siblings from the farm; and that Geoff probably thought that Bill was going to leave his half of the farm to Geoff but he had told Geoff that he may only leave him 25% of the estate (Sue’s affidavit sworn 22 July 2015 at [37]).

187. [232]

     Bruce and Edwina visited Bill in late December 2013. They say that Bill showed them the letter (i.e. the Discussion Note) that Geoff had given Bill (Bruce’s affidavit sworn 28 September 2015 at [164]; Edwina’s affidavit sworn 28 September 2015 at [84]-[85]).

188. [233]

     Bruce’s evidence is that in December 2013, Bill told Bruce and Edwina about his Shopping List Note and said (Bruce’s affidavit sworn 28 September 2015 at [167]):

189. [234]

     Bruce, Edwina and Sue gave evidence regarding Bill’s comments about Geoff at this time, namely that Geoff had a “short bloody memory and a selective one at that”; and Sue also said Bill told her he had to “take him down a peg or two” and “set him straight” about failing to acknowledge the financial support he received from Bill and Jill (Bruce’s affidavit sworn 28 September 2015 at [167]; Sue’s affidavit sworn 22 July 2015 at [36]-[37]).

190. [235]

     Merilyn and Bruce say that, before concluding his discussion with Bruce and Edwina about Geoff’s Discussion Note and his Shopping List Note, Bill said to them about Geoff (Bruce’s affidavit sworn 28 September 2015 at [170]):

191. [236]

     It is said by Merilyn and Bruce that Geoff was evasive about the purpose of his father’s Shopping List Note, but that he eventually conceded that Bill was “correcting” him on some of the factual things (at T 126.5-10):

192. [237]

     In January 2014, Geoff then prepared an Options Note, though this note was never given to Bill. This note was typed by Fiona but the information for it came from Geoff (T 130.5-15).

193. [238]

     Geoff details the following options in the Options Note:

194. [239]

     Merilyn and Bruce place emphasis on Geoff’s proposed Option 2, namely that he and Bill sell The Springs and “Divide sale of land proceeds equally”.

195. [240]

     As will be recalled from the conversation set out at [202] above, Fiona’s recollection is that Bill referred in that conversation to having sent a long letter to Bruce. The existence of any such letter (let alone what its contents were) was a highly contentious issue in the proceedings.

196. [241]

     Geoff gives evidence that, in or around early November 2013, Bill had a discussion with him concerning his correspondence with Bruce in which Bill told Geoff “I have received a letter from Bruce” and that he had sent Bruce a letter in response to “[s]et Bruce straight” (Geoff’s affidavit affirmed 8 December 2015 at [84], [143]). Geoff says that Bill also told him in December 2013 that “I have written Bruce a long letter sorting everything out” (Geoff’s affidavit affirmed 8 December 2015 at [103]).

197. [242]

     Geoff also gives evidence of a conversation he had with Bill in about November 2013 in which he says that Bill said “Bruce and Sue won’t stop asking about my Will. I am thinking about leaving it all to a charity. I shouldn’t have to worry about this at my age. I don’t have a problem with you Geoff you aren’t bothering me about it” (Geoff’s affidavit affirmed 8 December 2015 at [88]).

198. [243]

     Sue gives evidence of two conversations she had with Bill in which Bruce’s letter to Bill and Bill’s letter in reply were discussed. First, she says that in or about October 2013, Bill said to Sue “I got a letter from Bruce. I will have to reply to it” (Sue’s affidavit sworn 22 July 2015 at [34]). Then, she says that, in the period between 6 and 13 December 2013 in Coffs Harbour, Bill said to her “I have replied to Bruce’s letter. Bruce and Edwina think Geoff is greedy and doesn’t deserve any more. I can see their point of view but don’t see it in the same way. I don’t think that capital gains that Geoff made could be considered a gift” (Sue’s affidavit sworn 22 July 2015 at [37]); cf Sue’s affidavit sworn 31 May 2018 at [29]).

199. [244]

     Sue’s evidence is that she also had a discussion with Edwina concerning this letter to Bruce. Sue says that, on 29 December 2013, Edwina told Sue “Bill wrote Bruce a letter. It’s a long letter 10 or 12 pages” (Sue’s affidavit sworn 22 July 2015 at [38]). Edwina disputes this account (Edwina’s affidavit sworn 28 September 2015 at [70]). Sue also says that in the conversation she had with Edwina concerning the letter from Bill to Bruce, Edwina said that in the letter Bill “even apologised in it to Bruce for never taking him fishing” (Sue’s affidavit sworn 31 May 2018 at [33]). Sue says that this statement by Edwina was memorable to her because Bill was not a fisherman (Sue’s affidavit sworn 31 May 2018 at [33]).

200. [245]

     Part of the relevance of the alleged letter from Bill to Bruce is that it is relied upon by Geoff as going (adversely) to the credibility of Bruce and Edwina. Indeed, Geoff maintains that they gave false evidence as to this issue and contends that it should be inferred that the contents of the letter were adverse to the interests of Bruce (as to which, see below). For the purposes of the chronology of events, I simply note that no copy of any such letter was produced; and that Bruce and Edwina’s position was that the so-called letter may have been a reference to some “biographical notes” that Bill had prepared (and which were in evidence); a proposition disputed by Sue and Geoff; not least by reference to the fact that, it is noted, that there is no such statement as to fishing contained in the biographical notes (see below).

201. [246]

     Bill was hospitalised on 16 January 2014 and died on 22 January 2014. His funeral was on 25 January 2014.

202. [247]

     Sue gives evidence of an encounter she had with Bruce and Edwina in the days following her father’s death (prior to his funeral) in which she says that Bruce said “[w]e have worked out what we think Dad’s estate is worth and we think it’s around $3,000,000” and Edwina said “[l]uckily about half of the assets are very liquid and should be able to be cashed in quickly” (Sue’s affidavit sworn 31 May 2018 at [20]). Sue says that she was “angry” and “disgusted” as they had not yet had the funeral for her father and that “Bruce and Edwina appeared to be just counting the money they were to receive” (Sue’s affidavit sworn 31 May 2018 at [20]).

203. [248]

     Bruce and Merilyn give evidence of a discussion between Geoff, Fiona and the siblings on 26 January 2014 in which they say that Geoff said “I’m shocked. Dad [Bill] told me he was leaving me twenty five per cent” (Bruce’s affidavit sworn 28 September 2015 at [175]; Merilyn’s affidavit sworn 28 September 2015 at [33]).

204. [249]

     On 27 March 2014, Geoff’s solicitor wrote to the estate’s solicitor advising of a potential claim (Bruce’s affidavit sworn 28 September 2015 at [178]).

205. [250]

     Geoff’s evidence is that, in April 2014, Sue told him that “Dad was planning on updating his will when I was there in December” (Geoff’s affidavit affirmed 30 March 2015 at [108]).

206. [251]

     Sue gives evidence of a conversation with Bruce, Edwina and Merilyn which occurred between 25 and 28 July 2014 in Tamworth, in which Sue says that she told Bruce, Edwina and Merilyn about the conversation she had had with Bill in which Bill had told her he was going to either leave Geoff his half of The Springs or 25% of the estate (Sue’s affidavit sworn 22 July 2015 at [41]). Bruce and Edwina deny this account of the conversation, and say that Sue told them that Bill had not disclosed to her how he proposed to change his Will (Bruce’s affidavit sworn 28 September 2015 at [182]-[184]; Edwina’s affidavit sworn 28 September 2015 at [98]-[99]).

207. [252]

     Bruce, Edwina, Merilyn and Sue each gave an account of a discussion in the period between 25 and 28 July 2014 in which reference was made to a letter or note.

208. [253]

     Sue’s evidence is that she asked Bruce and Edwina if she could see Bill’s “letter” to Bruce and that she was told by Bruce “[n]o! It’s a private letter to me”, “[f]rankly it’s none of your business”, and “[w]ell actually the tone is still quite sympathetic to Geoff”. Sue says that she was told by Edwina (in answer to a query from Bruce as to whether the letter should be shown to Sue and Merilyn) “No we can’t because it then becomes evidence” (Sue’s affidavit sworn 22 July 2015 at [41]).

209. [254]

     Bruce’s account of this conversation in his affidavit evidence was that he refused to show Sue the “document” and stated that he would not do so “[b]ecause all Dad talks about in the document is farming, and you are already sympathetic towards Geoff as it is. But I assure you that there was nothing in it about Geoff, or his claim, or Dad’s Will” [emphasis as per Geoff’s submissions] (Bruce’s affidavit sworn 28 September 2015 at [183]).

210. [255]

     Edwina’s account of this conversation was that Sue asked to see “that note or letter” that Bill had given to Bruce, following which Merilyn asked “Bruce, did the document Dad gave you have anything in it about Dad’s testamentary intentions?” to which Bruce replied “[n]o, not at all. It was just about Dad’s farming life. And I think it will just make you more biased, Sue” (Edwina’s affidavit sworn 28 September 2015 at [99]).

211. [256]

     Merilyn’s account of this conversation was that Sue said “[c]an I see the letter that Dad gave you last year” [emphasis as per Geoff’s submissions] to which Bruce replied “[w]hat are you bringing that up for again for [sic]? It has nothing to do with Geoff’s claim”; that Sue said “[b]ut I’d like to read it anyway to see what it says” and Bruce replied “[n]o. It is Dad’s personal notes and I don’t want you using it to give more sympathy to Geoff” Merilyn’s affidavit sworn 28 September 2015 at [36]).

212. [257]

     All of the witnesses therefore are consistent in their recollection that Bruce was concerned that the “letter” would make Sue more sympathetic to Geoff.

213. [258]

     Merilyn and Bruce have referred in their submissions to two written statements received by Sue, after Bill’s death, from Geoff in October 2014 which they say show Geoff’s willingness to sell The Springs on behalf of Bill’s estate (Ex 5 at pp 468-471, 472-473). In the second of the statements, titled “From Sue and Geoff as executors and Geoff as surviving partner”, Geoff stated that after Bill’s death on 22 January 2014 (Ex 5 at p 472):

214. [259]

     Merilyn and Bruce place emphasis on the fact that, in the first of the written statements that Geoff gave to Sue in around October 2014, Geoff stated:

215. [260]

     In their further submissions (as to which complaint is made by Geoff, although the documentary evidence is already before me) it is noted that Sue paid Geoff from Bill’s estate to prepare the farm for sale; that Geoff’s invoices record that he received a call from a potential buyer for the farm within 11 days of Bill’s death (Ex 5 at pp 443-444); and that Geoff sold the remaining cattle on The Springs farm, except 5 Limousin bulls (Loneragan Report at [4.2.103]-[4.2.107]). It is also noted that in December 2017, both Geoff and Sue advised, through their solicitors, that they may exercise the powers of trustees for sale for the estate’s share of The Springs land in accordance with Bill’s Will (Ex 5 at pp 544-545).

216. [261]

     Insofar as Merilyn and Bruce in their further submissions say that the documents from December 2013 in which Geoff proposed that The Springs should be sold (the Discussion Note, the Options Note and the two written statements from Geoff in October 2014) confirm that Geoff did not rely on an expectation that he would inherit The Springs and that he could not reasonably have done so, and demonstrate that Geoff was willing to sell The Springs from December 2013 and that he did not rely on an expectation that he would inherit Bill’s share of The Springs land, or receive proceeds from the sale of Bill’s 50% of the land, I simply note that, the fact that in discussions or documents after the event Geoff was willing to contemplate the sale of The Springs says nothing to my mind about Geoff’s reliance on statements or representations about his inheritance at an earlier time. Such conduct would equally be consistent with Geoff not wishing to take issue with this at the time. More relevant to my mind is the absence of documentary evidence to show that Geoff challenged Bill about this during his lifetime – see below.

217. [262]

     As noted already, Probate of Bill’s estate was granted to Geoff and Sue on 18 December 2014.

218. [263]

     Geoff filed his statement of claim on 21 January 2015.

219. [264]

     Geoff and Fiona purchased 114 hectares of farming land (Fernbrook) for $1.5 million in 2015 (Fiona’s affidavit sworn 11 August 2016 at [9]) (which Merilyn and Bruce point to as part of the evidence of Geoff’s financial circumstances).

220. [265]

     In March 2015, Bill’s home in Inverell was transferred to Merilyn, Sue and Bruce. In April 2015, a vacant block of land at Vernon Street in Inverell (valued at $300,000) was also transferred to Merilyn, Sue and Bruce (Bruce’s affidavit sworn 28 September 2015 at [15]). Accordingly, there has been some distribution of Bill’s estate to the residuary beneficiaries.

Credibility of witnesses

1. [266]

   Before turning to the issues for determination, it is convenient at this stage to address the credibility issues raised by the respective parties.

2. [267]

   In this regard, it is emphasised by Merilyn and Bruce, and I accept, that careful scrutiny is recognised as being required where claims are made based on conversations with a person who is now deceased, particularly where the allegation is that that person (now unable to give his or her version of events) made binding promises which override his or her testamentary intentions, which were carefully and formally incorporated into a will later admitted to Probate. Reference is made by Merilyn and Bruce to what was said to that effect by Bryson AJ in Hampson v Hampson [2010] NSWSC 217 at [16]:

3. [268]

   Reference may be made to similar statements in other authorities as to the need for careful scrutiny of evidence given of conversations with deceased persons (see, for example, Plunkett v Bull (1915) CLR 544; [1915] HCA 14). Further, see the following statement of Morris LJ in Babu Lachmi Parshad v Maharajah Narendro Kishore Singh Bahadur [1891] UKPC 42 at 1:

4. [269]

   Not surprisingly, given the obvious rancour within the family, both sides made submissions critical of the credibility of the principal witnesses for the other.

5. [270]

   Geoff says that much of the evidence given by Bruce and Edwina in these proceedings is contrary to the evidence of other witnesses; and that there are a number of significant issues with Bruce and Edwina’s evidence which reflects poorly on their credibility. In that regard, it is submitted that: (i) Bruce and Edwina became singularly focused upon Bruce’s inheritance and they have been unwilling to be candid about this; (ii) that Bruce and Edwina colluded in the preparation of their evidence; (iii) that their evidence as to certain issues was not credible; and (iv) criticism is made of Edwina’s demeanour in the witness box. I address each of those matters in turn.

6. [271]

   It is submitted that the inference can readily be drawn that, since at least 2013, Bruce and Edwina had been “obsessed” with the differences between the amounts Bruce had received from his parents compared to the amounts which Geoff had received. It is submitted that findings can readily be made that, during 2013, Bruce and Edwina were: (i) campaigning for Bill to leave the maximum amount possible to Bruce in his Will; and (ii) denigrating Geoff and his partner Fiona to Bill with a view to convincing Bill to minimise his testamentary gifts to Geoff.

7. [272]

   It is noted that, early during Bruce’s cross-examination, Bruce denied that he and Edwina had been campaigning for Bill to leave the maximum amount possible to Bruce in his Will (see T 282.19-21) but that, later in the cross-examination, Bruce accepted that he and Edwina had indeed been campaigning Bill in relation to his Will (T 318.13-15; T 349.24-26). It is submitted that these belated admissions are of considerable significance on the question of Bruce’s credibility given Bruce’s many denials of this proposition during cross-examination.

8. [273]

   In this regard, Geoff points to the evidence of Bruce during cross-examination to the effect that, in 2013, Bruce was unconcerned with what Bill did with his estate. Bruce said that when he had discussions with Bill concerning his estate and testamentary intentions, it was “not necessarily” and “usually not” him who raised the topic (T 285.16-47). Bruce’s evidence was that, when Bill told him, in about August 2013, that he was concerned that Geoff did not have enough money, Bruce was unconcerned about what Bill would do with his estate although he was concerned Bill would continue “concerned that [Bill] might continue to, to, to give Geoff more money through The Springs working account” (T 288.23-290.10).

9. [274]

   It is noted that, at T 290.7-10, there was the following exchange:

10. [275]

    Asked why he (and Edwina) had obtained and shown to Bill a copy of the transfer in relation to the sale of Pindaroi (which showed that Geoff had received $4.2 million (gross) from the sale), Bruce’s evidence was that he did so simply because Bill “wasn’t sure how much Geoff had received” (T 291.43-44). Geoff submits that this evidence is not credible. It is submitted (and I would accept) that it can be inferred that Bruce said this to Bill because he was intently focused upon putting a case to Bill that he should leave as little as possible to Geoff so as to maximise the amount left for Bruce.

11. [276]

    It is noted that Bruce gave evidence that, between mid-September 2013 and the end of October 2013, he was entirely unconcerned with what his father would do with his estate (T 292.36-50, T 293.9-12):

12. [277]

    Bruce’s evidence was that it was Sue who was concerned in 2013 with what Bill intended to do with his estate, and that it was Sue who was “driving” this issue (see at T 293.14- 294.32, T 296.23-27, T 302.11-27).

13. [278]

    Geoff places significance on the following evidence of Bruce in relation to the period of August and September 2013 (T 295.7-35):

14. [279]

    The difficulty with that evidence is that the email sent by Bruce to Sue on 3 October 2013 makes clear that, contrary to the above evidence, Bruce and/or Edwina had indeed attempted to calculate the revenue generated from The Springs and had sent Sue an email concerning this on 3 October 2013. Bruce’s explanation for this inconsistency in his evidence was that he had forgotten this email (T 315.22- 316.15).

15. [280]

    For Geoff, it is submitted that Bruce’s reluctance to make this concession early during his cross-examination reflects very poorly on his credibility.

16. [281]

    It is noted that in cross-examination, Edwina denied that, in 2013, she believed that she needed to persuade Bill not to leave anything more to Geoff (T 405.35-37). Geoff says that this evidence is not credible in circumstances where Edwina (together with Bruce) had interrogated Geoff concerning the proceeds he received from the sale of Pindaroi at the meeting in Redcliffe (see above) and had provided a copy of the transfer for the sale of Pindaroi by Geoff to Bill. It is said that the only apparent reason for doing so was to seek to convince Bill not to leave any further amount to Geoff in his Will. It is submitted that the failure to make this concession reflects poorly on Edwina’s credibility. Edwina’s evidence in cross-examination was that she was not concerned that Bill would leave more to Geoff but held some broader concern that Geoff was not being truthful (T 410:3-15). It is submitted for Geoff that this evidence is also not credible.

17. [282]

    Geoff submits that it is also apparent that Bill was frustrated by Bruce and Edwina’s attempts to engage with him in relation to his Will (pointing to the evidence of conversations with Bill to that effect).

18. [283]

    It seems to me impossible not to conclude that Bruce (and Edwina) held the firm view (whether or not that amounted to an obsession is a different issue and one I need not here explore) that Geoff had been more favourably treated than Bruce during Bill and Jill’s lifetime (tellingly, Bruce’s own evidence refers to concerns he had of particular neglect); and that they were intent on demonstrating to Bill that this was the case.

19. [284]

    The suggestion that a copy of the transfer in respect of Pindaroi was obtained by Edwina and given or shown to Bill and Bruce simply because Bill had said that he was not sure what the proceeds of sale of Pindaroi were is inconsistent with the fact that in late 2013 Bruce and Edwina were clearly taking steps to try and calculate the revenue from The Springs (as emerged from the cross-examination in relation to the 3 October 2013 email); and, indeed, Bruce ultimately accepted that there had been a campaign to persuade Bill not to change his Will or not to leave The Springs to Geoff. Bruce was also taken in cross-examination to an email sent on 10 July 2014 to Sue’s husband and Merilyn, in which he had presented to them a summary of financial information on “our analysis”. Moreover, his reference in cross-examination to a conversation in 2012 when he says Geoff came to his house and said he, Bruce, did not need any more inheritance, was redolent of resentment on Bruce’s part.

20. [285]

    What that says about Bruce and Edwina’s credit, respectively, is another matter. The fact that they were clearly campaigning to protect or secure an inheritance that they apparently felt Bruce was owed or to which he was entitled (which on one view one might well think does not reflect particularly well on them), is not to the point; and, in any event, they were not the only family members apparently seeking to influence the exercise of Bill’s testamentary dispositions (indeed, Merilyn seems the only one of the siblings not to have engaged in such conduct). Moreover, I accept that Bill himself appears to have been prepared to discuss his testamentary intentions within the family – as apparent from the various accounts of the family meeting after Jill’s funeral.

21. [286]

    Denial of any such campaign (albeit from which denial Bruce, though not Edwina, later withdrew) in the course of cross-examination is a different matter. I will say more about Edwina’s evidence in due course. However, as far as Bruce is concerned, I formed the impression that his initial denial in cross-examination as to the so-called “campaign” reflected more his reluctance to concede the characterisation of that conduct in such a way, than a denial that it had occurred.

22. [287]

    Next, is the submission made in relation to the apparent practice of Bruce (from at least 2013) of denigrating Geoff and his partner Fiona to Bill (it is said with a view to convincing Bill to minimise his testamentary gifts to Geoff).

23. [288]

    For Geoff it is said that the evidence that Bruce gave (at T 304 – see above) that he felt it was clear what everyone was getting under Bill’s Will (which followed his earlier answer that he had raised the issues in his 29 October 2013 conversation with Bill because he wanted it to be clear “how things split financially” was nonsensical and evasive). It is said that it is apparent from the answer given by Bruce that he raised the issue (as to what he says Geoff had said about his financial situation) with Bill because he was “deeply concern[ed]” about his inheritance and he wanted to encourage his father to form a negative view of Geoff to minimise the risk of Bill leaving Geoff a substantial bequest in his Will. (I agree.)

24. [289]

    Geoff disputes that he made the statements attributed to him by Bruce and Edwina (as to his financial matters) which Bruce told Bill in the late October 2013 conversation that Geoff had done. However, it is submitted for Geoff that, even if it is assumed that Geoff did make these statements, repeating them to Bill is most unlikely to have resolved any “family rifts”; and that Bruce made these statements to his father because he thought that it would turn Bill against Geoff and protect the inheritance that Bruce thought he deserved. Although Bruce did not accept those propositions under cross-examination it is said that his evidence was inherently improbable, namely that he did not think that saying these things to his father would have any effect on his inheritance (T 301.41-302.5).

25. [290]

    It is noted that Bruce also denigrated Geoff’s (then) partner Fiona to Bill when he told Bill that “Fiona created a poor impression with me, dad, because she was prepared to be very critical of you and mum as my parents” (see at T 305.5-306.6). It is submitted that the apparent purpose of this was to cause Bill to form a negative impression of Fiona and of Geoff (again, it is said, in order to protect Bruce’s inheritance).

26. [291]

    Geoff says that a common theme in Bruce’s evidence is his propensity regularly to denigrate Geoff, his abilities as a farmer and worker and his work contributions to his father’s properties. For example, Geoff refers to Bruce’s evidence of a conversation he allegedly had with Geoff regarding a working trip Geoff took to Western Australia around 1979 to the effect that Geoff told him “I wasn’t able to find work in WA” (Bruce’s affidavit sworn 28 September 2015 at [6]) (a statement which Geoff says is factually incorrect (Geoff’s affidavit affirmed 8 December 2015 at [11])). Asked in cross-examination what the relevance was of this statement, Bruce’s response was “I’m not, frankly, clear in my own memory on that. Perhaps to show that Geoff’s career had all been spent at home” (T 280.30-34). For Geoff, it is said that this type of evidence is plainly irrelevant but that it reflects Bruce’s view that any success Geoff had was due to the beneficence of Bill and Jill and Bruce’s view that Bill and Jill had been less financially generous to Bruce than they were to Geoff, Merilyn and Sue (T 281.15- 282.16).

27. [292]

    In that regard, Geoff says that it is perhaps unsurprising that Bruce holds this view; and that, although Bill had a close working relationship with Geoff, it is apparent that Bill had a practice, when talking to Bruce and other family members, of failing to acknowledge Geoff’s achievements as a farmer and instead, attributing any success that Geoff had to the assistance that he and Jill had given him throughout his farming life (see Bruce’s affidavit sworn 28 September 2015 at [89], [116], [117], [166]-[170]; Bruce’s affidavit sworn 26 April 2018 at [48]; Edwina’s affidavit sworn 28 September 2015 at [41]-[42], [48], [86]-[87]; Edwina’s affidavit sworn 9 March 2017 at [7]; Edwina’s affidavit sworn 26 April 2018 at [17]; the Discussion Note; the Shopping List Note; T 277.23-50).

28. [293]

    It is noted that Edwina also regularly denigrates Geoff in her evidence through the inclusion of what, it is submitted, is obviously irrelevant material. For example, reference is made to Edwina’s evidence of statements allegedly made by Geoff during a “drunken conversation” (which Geoff says were taken out of context) (Geoff’s affidavit affirmed 8 December 2015 at [108]), namely that Geoff said he was a “white lighter” and could “clear ghosts and evil spirits” (Edwina’s affidavit sworn 28 September 2015 at [10]). Cross-examined as to the apparent relevance of these statements and why she had included them in her affidavit, Edwina’s evidence was that these matters were relevant because Geoff had allegedly said in his affidavits that he was “fully devoted to The Springs” (T 365.1-367.25). For Geoff, it is said that he did not give evidence that he was “fully devoted to The Springs” at the time of this conversation and that this evidence has evidently been included simply to disparage Geoff.

29. [294]

    I accept that the most logical explanation for the conversation that Bruce says he had with Bill after the Redcliffe meeting (in which Bruce conveyed to Bill what he says Geoff had said at that Redcliffe meeting) is that Bruce was attempting to influence Bill against Geoff. I do not accept (and Bruce in cross-examination ultimately seemed to disavow any such suggestion) the proposition that repeating such statements to Bill (whether or not they were in fact made by Geoff or Fiona in the first place) was something likely to “heal family rifts”. Rather, I see this as conduct most likely to foment rifts within the family. As to the evidence by Bruce that he just wanted things to be clear within the family – to some extent this is inconsistent with his view that everything had already been made clear; and in any event, one would think that if that was his objective then the answer would be to have a family meeting (not to denigrate Geoff and Fiona behind their back, as I accept this conversation can only sensible be seen as doing).

30. [295]

    It is not plausible that this conduct was done other than to try and secure the inheritance to which Bruce (and Edwina) clearly thought he had some entitlement. Bruce’s focus in this regard is evident from his evidence that he wanted to make sure that his father did not put money into The Springs’ bank account (see T 297) and that he wanted his father to keep expenditure on The Springs “in proportion” (T 289) (a rather extraordinary position for someone not involved in the farming partnership to take). This can only be seen as indicating a concern to protect or maximise the value of what Bruce saw as his inheritance. Attempting to influence Bill against Geoff (by denigrating him and/or Fiona) is consistent with this.

31. [296]

    As to the inclusion of the material in Edwina’s affidavit that, on its face, seems irrelevant to the claims in the proceedings (the “white-lighter” reference, for example), although there was suggested to be some peripheral relevance to that evidence (as to the proportion of time that Geoff devoted to The Springs) it is difficult to see any real reason to include this other than to paint a perhaps unflattering picture of Geoff. That said, one too often sees irrelevant (and quite often scurrilous or salacious) material in affidavits relied upon in support of, or in defence of, family provision claims, no doubt due to the often long-standing emotions involved; and, ultimately, I draw nothing from this evidence other than to treat it as irrelevant.

32. [297]

    It is noted that, during cross-examination, Bruce initially accepted that he had read Edwina’s affidavits (T 325.19-20) and that Edwina had read his affidavits (T 325.22-23). However, after the lunch adjournment, he denied that he had read Edwina’s affidavits (T 347.3-4; T 347.40-348.5) and said that if he had said that he had, then he was mistaken (T 347.42). It is submitted for Geoff that the suggestion that he was mistaken should not be accepted.

33. [298]

    This issue arose during cross-examination of Bruce as to the meeting he had attended with Edwina, Geoff and Fiona in Redcliffe in October 2013. It is noted that, during cross-examination, Bruce attributed to Fiona the statement that “You shouldn’t have believed, you know, Bill when, you know, when he said that at the family meeting” (T 343.10-13) [emphasis added]. For Geoff it is noted that, in his affidavits, Bruce had not alleged that Fiona made any statement about the “family meeting” during this meeting at Redcliffe but that Edwina’s affidavit did attribute to Fiona the making of a statement during the meeting at Redcliffe concerning the “family meeting” (see Edwina’s affidavit sworn 9 March 2017 at [20]-[21]). It was put to Bruce in cross-examination that he had confused and conflated his own evidence in relation to this meeting with Edwina’s evidence. It is submitted that it was in this context that Bruce sought to avoid making an admission to that effect by suggesting that his earlier evidence (about reading Edwina’s affidavits) was mistaken. It is submitted that it is much more likely that, after having the lunch adjournment to consider the effect of his admission and faced with the prospect of admitting that he had confused Edwina’s evidence with his own, Bruce was untruthful and sought to recast his prior evidence as an error.

34. [299]

    It is noted that, during cross-examination, Bruce also accepted that he discussed his affidavits with Edwina before he finalised them and, based on those discussions, had made “some alterations” (T 325.28-T 326.6). In contrast, it is noted that Edwina denied in cross-examination that she had discussed the contents of Bruce’s affidavits with him before he swore them (T 359.18-29). It is submitted that the evidence of Bruce in this regard should be preferred and that the fact that Edwina denied this reflects very poorly on her credibility.

35. [300]

    It is also submitted that, as a result of the above, there cannot be confidence that Bruce’s affidavit evidence contains an accurate account of his own recollections of events (given his evidence that Edwina reviewed his draft affidavits, they discussed their content and that Bruce made changes to his affidavits following those conversation). It is submitted that this suggests that the evidence of Bruce and Edwina is the product of their mutual endeavours to advance Bruce’s case and does not set out their own independent recollections; and, again, that this reflects poorly on both Bruce and Edwina’s credibility.

36. [301]

    In response to this, Merilyn and Bruce note that Edwina confirmed in cross-examination that she and Bruce discussed their joint finances set out in Bruce’s affidavits, and it is said that no adverse inference should be drawn from that. Furthermore, it is said that Bruce deposed to the discussion about the family meeting in 2007 at the Redcliffe meeting, and he was asked to respond in cross-examination to a different paragraph of his evidence. It is submitted that Geoff’s claim cannot be founded upon attacks on Bruce and Edwina, which should be rejected.

37. [302]

    There was inconsistency in Bruce’s own evidence as to this issue (as drawn out in Geoff’s submissions), namely as to whether he or Edwina had read each other’s affidavits and as to whether he had made alterations to his affidavits as a result thereof (which would indeed be troubling if that were to have been the case); and there was inconsistency as between Bruce’s evidence and Edwina’s evidence as to whether Edwina had read Bruce’s affidavits (beyond her concession that she had read parts of the affidavit going to the couple’s financial circumstances – as, she was quick to point out, she says she was requested to do by Senior Counsel for Merilyn and Bruce).

38. [303]

    The authorities on the difficulty that arises in accepting evidence where there has been collaboration or collusion between witnesses are well-known. I considered a number of those authorities some time ago in the context of affidavits the text of which had been prepared by way of a cut and paste exercise (see Rosebanner Pty Ltd v Energy Australia (2009) 223 FLR 406; [2009] NSWSC 43 at [327]-[334], there considering what was said in Macquarie Developments Pty Ltd v Forrester [2005] NSWSC 674; Seamez v Mclaughlin [1999] NSWSC 9; and Dialog Pty Ltd v Addease Pty Ltd [2003] FCA 1359). Where witnesses have read each other’s affidavits in draft, it may be doubtful whether their evidence remains uninfluenced by the evidence of others and their credibility may suffer accordingly; see, for example, the following excerpt from Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731; [2005] NSWCA 110 per Sheller JJA (with whom McColl JA and Windeyer J agreed) at [30]:

39. [304]

    On Edwina’s account of events, she was asked to review the material relating to the couple’s finances. I accept that her input as to the couple’s financial position would be relevant (at the very least on the family provision claim) though it would have been preferable for her affidavit to make clear what affidavit material or draft affidavit material she had considered in forming her views. Bruce’s account in cross-examination was inconsistent (but to be charitable to him, this was perhaps the product of misunderstanding on his part).

40. [305]

    It is not possible to draw any final conclusions as to the extent of any collaboration between Bruce and Edwina in the preparation of their evidence; nor is it necessary to do so in circumstances where, in any event, I approach with some caution all of the accounts by the various witnesses of conversations with Bill (for the reasons adverted to above) and place more weight on contemporaneous documents and the logic of the events that occurred in the relevant period. If it were to have been necessary, I would have concluded that any collaboration between the couple was not established to have extended to the extent that I should reject their evidence.

41. [306]

    Allegedly implausible evidence - the letter from Bill to Bruce have referred above to the factual dispute as to whether Bruce received a letter from Bill in about November 2013. Geoff submits that Bruce’s evidence on this issue is both controversial and not credible. (Broadly, I agree.)

42. [307]

    Geoff contends that Bruce did receive a personal letter from Bill in about November 2013 in which Bill made statements that have been assessed by Bruce and Edwina to be adverse to Bruce’s case. It is noted that Bruce has denied receiving such a letter and suggested that Bill showed him some biographical notes; and that Edwina has also claimed that there is no letter. For Geoff, it is submitted that Bruce and Edwina should not be believed.

43. [308]

    The evidence concerning the existence of this letter has been referred to above. As to the biographical notes, it is noted that the evidence of all of the siblings except Bruce is that the biographical notes (which were put into evidence by Bruce – see Ex 4 at Tab 52) were notes prepared or used by Bill at an earlier time for a speech (probably on the occasion of his 80th birthday).

44. [309]

    Geoff’s evidence is that he understands that the biographical notes were something which Bill wrote for his 80th birthday and his recollection is that, on that occasion, Bill read from these notes when giving a speech (Geoff’s affidavit affirmed 8 December 2015 at [84]).

45. [310]

    Sue gave similar evidence concerning the biographical notes. Sue does not accept that the biographical notes are the same document as the letter that Bill told her that he wrote and gave to Bruce because she recalls that the biographical notes were prepared by Bill in 2008 and that Bill read them out at a family gathering for his 80th birthday and during a talk he gave to the “Probus Club” (Sue’s affidavit sworn 31 May 2018 at [32]).

46. [311]

    Merilyn, in cross-examination as to the biographical notes, is corroborative of Sue and Geoff’s recollections. Merilyn said (at T 353.32-34):

47. [312]

    Bruce, when cross-examined, accepted that he attended Bill’s 80th birthday party and that it was possible that the biographical notes were used by Bill to make a speech on that occasion (T 310.12-22). Edwina, on the other hand, denied that Bill gave a speech at his 80th birthday and suggested that he could not have done so because it was a “fairly loud venue and he had hearing problems” (T 370.43-47).

48. [313]

    Bruce’s evidence as to the biographical notes is that, while he and Edwina were holidaying with Bill at a resort in Coffs Harbour, Bruce showed Bill some family history documents his cousin had given him and Bill said to him “I’ve written up something about my own history, and because you’re interested in that sort of thing, I thought you might like to see it” (and he says that Bill handed the biographical notes to him). In cross-examination Bruce’s evidence was that Bill showed him the biographical notes but never gave the notes to him (and that Bill retained the notes) (T 306.23-32). It is noted that this account of Bill retaining the biographical notes does not appear in Bruce’s affidavit evidence. Bruce also said in cross-examination that he took possession of the biographical notes when he found them in his father’s office after his father died (T 306.24-38). Bruce gave evidence that he took these notes after “talking to my sisters and asking them if I could take them” (T 306.41-42; T 311.8-10). Geoff says that one of the difficulties with this evidence is that Merilyn and Bruce have not adduced any evidence from Merilyn concerning this supposed consent to taking the biographical notes; nor does Sue give any evidence regarding this supposed consent.

49. [314]

    As to the various accounts by his siblings of the July 2014 conversation in Tamworth, Geoff identifies a number of differences that he submits are critical.

50. [315]

    First, that Sue and Merilyn’s accounts are that Sue asked to see a “letter”; whereas Edwina’s account is that Sue asked to see a “note or letter”; and Bruce’s account in his affidavit was that Sue asked to see a “document”. It is noted that, when cross-examined about this issue, Bruce’s first account of the conversation was that Sue asked to see the “notes” that Bill gave him (T 307.7-16) but Bruce subsequently conceded that Sue may have said “I need to see that letter that Dad gave you” (T 308.19-22). Geoff emphasises that, not only is this contrary to the account that Bruce gave in his affidavit, but that it is simply not credible that if Sue had asked Bruce to see a “letter” that Bill gave him, he would (without further inquiry) have understood that to be a request to see the biographical notes which Bill had shown (but not given) to Bruce some eight months earlier. Geoff says that the biographical notes were plainly not a “letter” and that they were not addressed to Bruce. Bruce gave the following evidence in cross-examination in relation to this issue (T 309.1-23; T 311.12-25):

51. [316]

    It is submitted for Geoff that this evidence is simply not credible; that the biographical notes were plainly not a letter, were not addressed to Bruce and were not given to Bruce (but, on his account, were merely shown to him on one occasion). It is submitted that Bruce would not have understood Sue to be referring to the biographical notes when she referred to the letter which Bill had given to Bruce. (Pausing here, I agree that it is not plausible that the biographical notes fit the description of a “letter” albeit that I take into account that Bruce’s answer in cross-examination suggests he may have an unusual understanding of what constitutes a “letter” (see at T 309, 312).)

52. [317]

    Second, that all witnesses agree that one of the reasons Bruce stated that he was refusing to show Sue the letter was because it might make Sue feel more sympathetic towards Geoff. It is noted that Bruce initially denied that he refused to show Sue the document for this reason (T 307.31-33) but later conceded that he may have made a statement to this effect (T 307.38-39) (which it is noted is consistent with his affidavit evidence). For Geoff, it is said that, even on Bruce’s account of the conversation, the statement concerning Sue’s alleged sympathy for Geoff is suggestive of the fact that the letter had the potential further to entrench Sue’s sympathy for Geoff but that there is nothing in the content of the biographical notes which could have this effect. It is noted that, when asked during cross-examination which particular part of the biographical notes would have made Sue sympathetic to Geoff, Bruce said “[o]nly that it was, again, all about - about farming” (T 312.49; c.f. T 313.1-3). It is submitted that the suggestion that the biographical notes would make Sue feel sympathy for Geoff simply because they concerned farming is nonsensical and not credible. It is submitted that the available inference is that Bruce regarded the contents of the letter as adverse to his interests in relation to any claim by Geoff on the estate. (I agree.)

53. [318]

    Third, that Bruce gave evidence that he did not consider the biographical notes to be an “important matter” (T 313.1-3). It is said that, if that were the case, it is not credible to suggest that Bruce would have refused to show Sue the notes when she expressly asked him to see them. It is submitted that this is particularly the case when Sue’s evidence is that she asked to see the letter again in a separate (and later) telephone conversation with Bruce on 16 May 2015 and was told by Bruce “[n]o you’re not going to see it and frankly it’s none of your business” (Sue’s affidavit sworn 22 July 2015 at [41]).

54. [319]

    It is submitted that Edwina’s evidence concerning the letter and biographical notes was also unsatisfactory in a number of material respects.

55. [320]

    It is noted that in Edwina’s affidavit evidence, she stated on three occasions that Bill “gave” Bruce the biographical notes in Coffs Harbour (Edwina’s affidavit sworn 9 March 2017 at [45]; Edwina’s affidavit sworn 28 September 2015 [69], [70]); cf T 382.7-T 384.10). It is noted that this is inconsistent with the evidence Bruce had given to the effect that Bill had kept the notes after showing them to Bruce.

56. [321]

    It is said that Edwina gave confusing and contradictory evidence concerning her understanding of what happened to the biographical notes when Bruce and her left Coffs Harbour, which was inconsistent with her affidavit evidence but was generally (at times) in conformity with the evidence that Bruce gave during cross-examination. Initially, Edwina’s evidence as to who retained the notes after they left Coffs Harbour was “I don’t know” (T 371.14-15). Edwina then said that she did not think Bruce retained the notes when they left Coffs Harbour because, if he had, she “would have known” (T 371-17-19). Edwina then gave evidence that she “would expect that Bill had the notes, because they were with him when he passed away” (T 371.31-36). Edwina later conceded that she did not remember whether Bill took the biographical notes (T 373.17-19) and then said that she did not remember whether Bill still had the notes when he died (T 374.11-14). Edwina then gave evidence that she “believed” that the notes were in Bill’s office when he died (T 374.21-29).

57. [322]

    It is noted that the account given by Edwina in cross-examination of a conversation in about January 2014 between her, Bruce, Merilyn and Sue about the biographical notes does not appear in her affidavit evidence. In her account in cross-examination, the notes were said to have been retrieved from Bill’s belongings and, in the context of discussing the biographical notes, Sue or Merilyn (“one of the sisters”) said “Well, that’s a good record of dad’s life” (T 375.16-23). It is submitted that the necessary corollary of this statement is that the sister who made the statement must have seen and read the biographical notes in January 2014 and Edwina knew this because she was a party to this conversation. It is noted that Edwina seemed to accept during cross-examination that Sue and Merilyn “were aware” that the biographical notes “were about [Bill’s] life” (T 384.38-42).

58. [323]

    In cross-examination Edwina gave evidence that Sue and Bruce had collected the biographical notes from Bill’s house in July 2014, although she later suggested that this may have been an assumption on her part (T 391.50-392.11), following which she gave evidence of a conversation (not set out in her affidavits) in about July 2014 in which she says that Bruce asked Sue to give him the biographical notes retrieved from Bill’s house (T 392.35-395.30).

59. [324]

    As to the further discussion between Edwina, Bruce, Sue and Merilyn between 25 and 28 July 2014 (see above), it is noted that in Edwina’s affidavit account of the conversation, Sue is said to have asked to see “that note or letter” which Bill “gave” to Bruce, and Merilyn asked whether it referred to Bill’s “testamentary intentions”. In cross-examination, Edwina claimed that she understood that Sue and Merilyn were asking about the biographical notes (T 376.8-10; T 379.34-41; T 390.31-3) (although she later suggested that the reference to the “notes” and “letter” did not make a lot of sense to her – see at T 379.14-25). For Geoff, it is submitted that this evidence does not make sense. Rhetorically, he asks: why would Sue and Merilyn have been making enquiries about a document which they reviewed in January 2014 and, ultimately, which Sue is alleged to have given to Bruce in July 2014; and why would Bruce refuse to show Sue a document which Sue had given to him that same month? It is said (and I consider this to have no little force) that Edwina was unable to offer a credible explanation for this under cross-examination (T 395.32-45) and that it is simply not credible that Edwina could have thought that Sue was asking to see the biographical notes during the course of this conversation.

60. [325]

    In relation to the conversation which occurred between 25 and 28 July 2014, Edwina’s evidence was that she was not “giving a lot of consideration” to what Sue was saying about the “note” or “letter” and that she was “distracted”, otherwise “preoccupied” by another statement made by Sue, and was “dismissive” of this part of the conversation (T 376.26-44; T 379.19-20; T 380.25-32). It is submitted that it is simply not credible that Edwina can claim to have been distracted, preoccupied, dismissive and not giving a lot of consideration to Sue’s statements about the “note” or “letter” when Edwina also claims many years later to have a clear recollection of this conversation in her affidavit and, in particular, a clear recollection of the reference to “the letter or the notes” (as opposed to Sue just referring to a letter) (T 375.46-49).

61. [326]

    It is submitted that Edwina’s account concerning the biographical notes is both inconsistent with her affidavit evidence and nonsensical.

62. [327]

    For those reasons, it is submitted that there should be a finding that Bruce and Edwina have given false evidence concerning the letter from Bill to Bruce and have purported to “pass off” Bill’s biographical notes as a true copy of the letter Bruce received from Bill; and that the actual letter from Bill to Bruce has not been produced.

63. [328]

    Geoff contends that it is permissible to draw adverse inferences in such circumstances (referring to Clark v State of New South Wales (2006) NSWLR 648; [2006] NSWSC 673 at [102] per Johnson J; cf Moody Kiddell & Partners Pty Ltd v Arkell [2013] FCA 1066 at [26] per Jagot J). Relevantly, it is said that, based on Bruce’s statement to Sue that the letter may cause Sue to feel greater sympathy toward Geoff, two inferences can be drawn, those being: first, that the content of the letter supported Geoff’s contention that Bill had promised to devise his half share in The Springs to Geoff in his Will; or, second, that Bill intended to change his Will to make further provision to Geoff. It is submitted that those inferences can more comfortably be drawn when Bruce and Edwina have gone to “extraordinary” lengths to ensure that this letter was not adduced in evidence. It is submitted that Geoff is significantly prejudiced by reason of Bruce and Edwina attempting to “pass off” the biographical notes as the letter. It is also submitted that this matter is very damaging to the credibility of both Bruce and Edwina.

64. [329]

    Merilyn and Bruce’s response as to the adverse findings sought by Geoff by reference to the letter said to have been sent by Bill to Bruce (and said to have been adverse to their interests in relation to the claim being made by Geoff) and the accusation that Bruce and Edwina have withheld that letter and sought to “pass off” Bill’s biographical notes as that letter, is to argue that the submissions made for Geoff do not indicate how this inference was grounded in the available evidence about the purported letter; and to contend that Geoff’s evidence as to the alleged letter should not be accepted. They make extensive submissions in this regard.

65. [330]

    It is noted that in his affidavit affirmed on 30 March 2015, Geoff made no mention of any letter from Bill to Bruce; rather, the issue of an alleged letter from Bill to Bruce was first raised by Sue in her 2015 affidavit, while she was acting as defendant for Bill’s estate. It is noted that Merilyn and Bruce were not then parties to the claim. Merilyn and Bruce emphasise that Bruce and Edwina have consistently maintained that Bruce did not receive a letter from Bill. In their further submissions, Merilyn and Bruce argue for a finding that there is no evidence to support the allegation that Bill sent Bruce a letter, and that no inference should be drawn that any such letter was adverse to Bruce’s interests. It is said that in Sue’s evidence there is nothing to suggest that such a document (had it ever existed) would have contained evidence adverse to Bruce.

66. [331]

    As to Sue’s evidence, Merilyn and Bruce note the following.

67. [332]

    First, that in her 2015 evidence, Sue claimed that Bill told her in Coffs Harbour in mid-December 2013 that he had sent Bruce a letter to explain that the capital gains that Geoff had received (presumably, from the sale of Pindaroi in 2009) did not constitute a gift. However, it is said that Sue’s claim is contradicted by Geoff’s Discussion Note from this time in which he acknowledged “I was disappointed when mum told me you both thought you had made a mistake selling me Pindaroi as its Capital value had grown too high and that was not fair to my siblings”.

68. [333]

    Second, that three years later, in 2018, Sue admitted she “did not ask Dad for details” of the alleged letter to Bruce; yet, despite this, Sue claimed she was “confident” the letter “would be Dad’s explanation of figures and other things he wanted to say to them” (Sue’s affidavit sworn 31 May 2018 at [29]). It is said that this explanation is illogical, given that Bruce’s email of 3 October 2013 records what Bill told them about Geoff’s finances. Merilyn and Bruce treat with scorn any suggestion that, in addition to discussing these figures with Bruce and Edwina, Bill would also have sent these in a letter to Bruce.

69. [334]

    It is noted that in the same affidavit, Sue also says she “did not question Edwina about the letter as it was a personal letter from Dad to Bruce” (Sue’s affidavit sworn 31 May 2018 at [33]) yet speculated that “Dad would have been correcting Bruce and Edwina on their interpretation of figures and perceptions they had concerning what Geoff had received” (Sue’s affidavit sworn 31 May 2018 at [33]). Merilyn and Bruce say that Bill’s handwritten Shopping List Note from this time shows that Bill corrected Geoff, not Bruce, about what he had received.

70. [335]

    Merilyn and Bruce also point out that, in 2018, Sue added that Edwina told her on 29 December 2013 that in the alleged letter, Bill “...even apologised in it to Bruce for never taking him fishing” (Sue’s affidavit sworn 31 May 2018 at [33]). Insofar as Sue’s evidence is that Bill apologised to Bruce for issues of childhood neglect during a personal discussion in Coffs Harbour in mid-September 2013. Merilyn and Bruce say that, had Bill apologised to Bruce in a letter, as alleged, this would not be “adverse” to Bruce’s interests.

71. [336]

    In her 2018 affidavit, Sue further said “[w]hether there were any further intentions stated by Dad [in the alleged letter] , I do not know” (at [33]); but that Sue deposed in her affidavit sworn 22 July 2015 (at [38]) that Edwina had said in the context of discussing the alleged letter: “Everything is alright. Bill has said he won’t change his Will”.

72. [337]

    Insofar as Sue says that, after 29 December 2013, she “did not have an opportunity to talk further with Bruce and Edwina or my father” about the purported letter from Bill to Bruce (Sue’s affidavit sworn 22 July 2015 at [38]), Merilyn and Bruce say that this is clearly false, because Sue could have discussed this topic at any time with Bruce and Edwina after 29 December 2013; and she did not do so for 7 months, until July 2014. (That perhaps is too literal a reading of Sue’s evidence – lack of opportunity may arguably encompass more than calender timing.)

73. [338]

    Merilyn and Bruce submit that Sue’s claim about a letter should be rejected, given that she failed to disclose the email that Bruce sent her on 3 October 2013 about the very topic of the alleged letter; and that Geoff’s Discussion Note, Bill’s Shopping List Note and Geoff’s Options Note are contemporaneous records of the true nature of the discussions between Geoff and Bill in late 2013.

74. [339]

    Merilyn and Bruce point out that, after Sue’s evidence, Geoff deposed that in December 2013 Bill said to him “I have written Bruce a long letter sorting everything out” (Geoff’s affidavit affirmed 8 December 2015 at [103]). It is submitted that no adverse inferences can be drawn from those words, particularly given that Geoff failed to raise this topic in his earlier affidavit.

75. [340]

    Insofar as Fiona claimed that in early November 2013 Bill said to Geoff words to the effect “I sat down and wrote him [Bruce] a long letter explaining how I see things and what I intend to do” (Fiona’s affidavit sworn 11 August 2016 at [32]), Merilyn and Bruce say, first, that Geoff’s version of this discussion contains no reference to any alleged letter and, second, that Fiona’s evidence is inconsistent with her evidence that, shortly before this discussion, Bill told Geoff he was “overreacting” and “It will blow over and we can continue how we are” and also that “I don’t see why things have to change” (Fiona’s affidavit sworn 11 August 2016 at [30]). It is said that these words do not support an inference that Bill would have written to Bruce to inform him of any future changes to his Will. To the contrary, it is said that the words clearly indicate that Bill did not agree that any changes were needed. (Pausing here, leaving aside the question of content, this evidence of Fiona, together with Sue’s evidence as to the request for such a letter and Bruce’s reaction thereto is consistent with such a letter having been written.)

76. [341]

    Insofar as the submissions for Geoff allege that Bruce and Edwina sought to pass off the biographical notes as the purported letter from Bill, Merilyn and Bruce point out that Bruce included the biographical notes shown to him in Coffs Harbour in mid-September 2013 in his affidavit sworn 28 September 2015. It is said that there is nothing on the face of the document to indicate that it was written as a speech, as claimed by Sue and Geoff. Rather, it is submitted that it appears that Bill wrote his biographical notes as a personal account of his life. (Whether or not that be so, what is abundantly clear is that the biographical notes do not meet the normal description of a letter, and Bruce’s evidence to that effect is simply not plausible in my opinion.)

77. [342]

    It is noted by Merilyn and Bruce that at [17](b) of his 28 September 2015 affidavit, Bruce deposed that:

78. [343]

    Bruce and Edwina’s evidence is that, after Bill’s death, on 24 June 2014, Sue told Bruce and Edwina that Geoff was going to make a claim against their father’s estate, and she said (Bruce’s affidavit sworn 28 September 2015 at [180]; see also, Edwina’s affidavit sworn 28 September 2015 at [94]):

79. [344]

    It is noted that Sue did not dispute this evidence in either of her affidavits, and that her comments created concern for Bruce and Edwina about her sympathies for Geoff.

80. [345]

    On the basis of the above, Merilyn and Bruce contend for a finding that the document that Bill showed to Bruce in mid-September 2013 in Coffs Harbour was the biographical notes that Bruce deposed in his 2015 affidavit.

81. [346]

    In the context of the requests made by Sue to see the letter that she believed had been sent or given by Bill to Bruce, I simply cannot accept that the biographical notes could seriously have been considered by Bruce to fall within that description. The biographical notes were not in the form of a letter; and there was ample evidence from the other siblings to conclude that the biographical notes had been prepared much earlier (in connection with or used for Bill’s 80th birthday party speech) and that Bill indeed (contrary to Edwina’s dismissive account of this) did give a speech at his 80th birthday party for which the notes would plausibly have been used. The accounts given by Bruce and Edwina as to what had happened to the notes (whether they were given to Bruce – as his affidavit evidence first suggested; or taken back by Bill and then later found in Bill’s house after he died – as Bruce later attested and as Edwina assumed was the case) were riddled with inconsistencies (and assumptions, on the part of Edwina).

82. [347]

    Therefore, I cannot accept that Bruce could seriously have understood a request by Sue to see the “letter” as referring to the biographical notes. The only conclusions sensibly to be drawn from the fact that Bruce did not suggest at the time that there was no such letter (rather than refusing to provide it on the basis that it was not “relevant” or might make Sue more sympathetic to Geoff) are that there was in fact at one stage such a letter and that it has not been produced (or is no longer in existence to be able to be produced but in circumstances where Bruce has not explained what happened to it). Bruce’s evidence in cross-examination (see at T 313) to the effect that, if Sue pressed him, he would have given her the document (which on his account would be the biographical notes that Sue had already seen or at least knew about from the time of the 80th birthday gathering) cannot be accepted in circumstances where Sue did indeed press to see the document and Bruce refused to provide it.

83. [348]

    I find on the balance of probabilities that Bill did write a letter to Bruce at some point prior to Bill’s death (and I accept the evidence of Sue in that regard). I also accept Sue’s evidence that Bruce’s refusal to accede to her request was because he said that it would make her more sympathetic to Geoff (and, hence, I think it most unlikely that the letter was solely related to Geoff’s farming activities on The Springs). (I do not, however, regard Sue’s speculation as to what the letter may have contained as of any assistance. It is, and purports to be, no more than Sue’s surmise.)

84. [349]

    However, I cannot conclude that the document (that I consider on the balance of probabilities did exist), even if it contained evidence Bruce perceived to be adverse to Bruce’s interests in the proceeding, did so in relation to any particular issue or indeed what that evidence might have been. In a not wholly dissimilar context, even where an adverse Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 (Jones v Dunkel) inference is drawn from the failure to call a witness or produce a document, the inference is only that the uncalled evidence would not have assisted a party’s case; it could not be inferred that the uncalled evidence would have been positively damaging thereto. What a Jones v Dunkel inference does not permit is a choice between two guesses or conjectures or to supply missing gaps in evidence (see Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) (2006) 229 ALR 136; [2006] FCA 446 at [50], citing Heydon, Cross on Evidence (7th Australian ed, 2004, LexisNexis Butterworths) at 41).

85. [350]

    The most that I can draw from the unsatisfactory and unpersuasive evidence of Bruce and Edwina as to the alleged letter is that I cannot be satisfied that Bruce has put forward all the evidence that he might have been able to put forward as to his communications with Bill in relation to Bill’s testamentary dispositions (which reinforces the caution I must exercise in accepting at face value his or Edwina’s evidence as to conversations with Bill).

86. [351]

    I am not persuaded to the standard of persuasion that would be necessary for such a serious finding, that Bruce and Edwina have given knowingly false evidence as to the existence of the letter. However, I simply cannot accept their evidence as consistent with the most logical explanation of events relating to the requests by Sue (and referred by Bruce and Edwina) to produce the letter to her.

87. [352]

    As to the Redcliffe conversation (see above), it is noted that Edwina was asked a series of questions about the chronology of the conversation which she alleged occurred in two of her affidavits (Edwina’s affidavit sworn 28 September 2015 at [74]-[75]; Edwina’s affidavit sworn 9 March 2017 at [19]-[22]). It is submitted for Geoff that Edwina had considerable difficulty in placing in chronological order the series of events during this lunch (see, in particular, T 415.33- 417.30) and that this suggests that either she has a very poor recollection of this conversation or her account is fictitious.

88. [353]

    Geoff submits that the account by Bruce and Edwina of the Redcliffe conversation is not credible. In this regard, it is noted that, on 28 December 2007, Bruce, together with Merilyn and Sue, executed a deed in which they forgave Geoff in relation to a $69,500 loan which Geoff and Kaye owed to Jill’s estate (Ex C at Tab 24). It is submitted that it is highly unlikely that Geoff would have claimed never to have received a loan from Jill in circumstances where he knew that Bruce was not only aware of this loan but had executed a legal document to forgive the loan. It is noted that when Bruce was asked during cross-examination about his knowledge of the fact that Geoff had borrowed money from his parents (including the loan from Jill which Bruce expressly forgave under the Deed of Loan), Bruce said “[t]he conversation we were having at Redcliffe was in relation to the purchase of Pindaroi, and so the loans would have been in relation to that particular issue” (T 345.17-20). It is submitted that this is unconvincing and self-serving evidence. Edwina gave similar evidence during cross-examination (T 418.6-9).

89. [354]

    For Geoff, it is said that the alleged statement by Geoff that his parents had not given him “any loans or help in my life”, that he “got all my loans from the bank” and that his parents “have never given me any help at all” is plainly not limited to the topic of whether Geoff had received any loans from his parents in respect of Pindaroi. Further, Geoff submits that Bruce and Edwina went to the Redcliffe meeting with the intention of extracting information from Geoff about his financial position so that they would be better placed to convince Bill not to change his Will to leave Geoff more of his estate.

90. [355]

    As adverted to above, it seems to me inherently implausible that someone in Fiona’s position would, unprompted as Bruce and Edwina would have it, launch into a spirited defence of someone she had only been dating for a short period of time and, more to the point, accuse his parents of lying at a family meeting some six years before that she had not attended and without knowing them at that time. No doubt stranger things might happen and I accept that it is not beyond the realms of possibility but the impression I gained of Fiona in the witness box was that she was calm and relatively understated. Fiona approached the giving of her evidence in an objective and calm manner (by contrast, Edwina – as I explain below – presented as a determined advocate in Bruce’s cause). Fiona has no personal interest in the outcome of the proceedings nor, so far as I am aware, any axe to bear against Bruce and Edwina. I accept Fiona’s denial that she made the statements attributed to her at this meeting.

91. [356]

    As to what that says about Bruce and Edwina’s evidence to the contrary, to my mind it illustrates the self-serving focus or perspective with which Bruce (and Edwina) seem to have approached this case. I suspect they have conflated in their minds what happened with their assumptions or beliefs as to the merits or otherwise of Geoff’s position. All of this adds to the caution with which I approach their evidence generally.

92. [357]

    It is submitted that, during the course of cross-examination, Edwina was: (i) regularly evasive (reference being made to her answers at T 362.40-47; T 368.1-6; T 377.35- 378.18; T 387.1-4; T 389.18- 390.3; T 403.12-34; T 410.26-45; T 423.14-424.25); (ii) regularly gave speeches and made submissions (many of which were unresponsive to the questions that were asked) (including at T 381.12-33; T 388.32-33; T 406.39-50; T 434.21-44); (iii) made unnecessarily disparaging observations about Sue (T 381.23-24; T 381.26-27; T 388.41-45); (iv) made unnecessarily disparaging observations about Geoff (T 428.25); and (v) sought to debate issues with the cross-examiner rather than answering questions (including at T 389.18-27; T 400.44-45).

93. [358]

    It is submitted that Edwina presented as an advocate for her and Bruce’s cause. (I interpose here to say that I consider that there is much force to the above submissions and that I did indeed consider that Edwina presented as an advocate for Bruce’s cause; just as I have no doubt on the evidence before me that Edwina played an active role in the campaign to dissuade Bill from making further provision for Geoff in his Will, not least in that Edwina was involved in the attempted calculation of revenue for The Springs and obtaining the property search to establish the proceeds of sale for Pindaroi.)

94. [359]

    Edwina struck me as forceful and argumentative in the witness box. She upbraided her cross-examiner more than once in effect for not paying attention to her answers (when to my observation Mr Hodge was simply looking at his iPad on which, presumably, his notes for the line of cross-examination or evidentiary references were to be found) (see, for example, the exchange at T 405); and she was didactic and prone to giving speeches and to digression. I do not think Edwina was being deliberately evasive in her answers in cross-examination; rather, I think that she did not focus carefully on the questions and was more intent on getting across her version of events. There is no doubt in my mind that Edwina was actively supporting, and advocating, Bruce’s cause (indeed it seemed to me that there was a Freudian slip insofar as Edwina – at T 361 – when speaking of the legal representatives referred to them as those that “we’ve engaged” before changing this to “Bruce has engaged”, and then, seemingly as an afterthought, “and Merilyn”). That is consistent with the active role that Edwina seems to have played in obtaining the transfer for Pindaroi so that Bruce would show Bill what Geoff had received on the sale of Pindaroi.

95. [360]

    Again, that does not lead me to the conclusion that Edwina was dishonest – it simply means that I exercise caution in accepting at face value her evidence where it is not corroborated by contemporaneous objective evidence.

96. [361]

    Geoff refers to Bruce’s evidence of a number of conversations that he says he and Edwina had with Bill. It is submitted that various of the statements attributed to Bill during the course of those conversations are inconsistent with other evidence and otherwise inherently unbelievable.

97. [362]

    So, for example, it is noted that Bruce deposed that “over 2009 to 2010”, Bill allegedly said to him “Geoff’s got a lot of ideas that we are going to experiment with on the farm such as his cell grazing and pasture improvement methods” (Bruce’s affidavit sworn 28 September 2015 at [116]). However, Geoff gives evidence that he and Bill were not planning on introducing cell grazing at The Springs around this time. Rather, Geoff’s evidence is that he had implemented cell grazing on Pindaroi 30 years earlier and found that rotational grazing was more successful. Geoff says that what he had discussed with Bill and what was being implemented on The Springs was rotational grazing (Geoff’s affidavit affirmed 8 December 2015 at [61]).

98. [363]

    Another example, relates to the gift that Bill gave to Bruce of $20,000 on 23 June 2013, being the date of his anniversary party (Bruce’s affidavit sworn 28 September 2015 at [21]). Bruce has deposed that, on that day, Bill said to Bruce “I thought this might help. I know you’ve had less than the rest, and I’m very proud of you. No need to tell your siblings. It’s been a great get-together” (Bruce’s affidavit sworn 28 September 2015 at [21]). Edwina gives a similar account of this conversation (Edwina’s affidavit sworn 28 September 2015 at [19]). Geoff says that, as at that date, Bruce had not received “less”, by way of inter vivos gifts, from his parents than Sue or Merilyn. It is said that (see below), as at that date, Bruce had in fact received more than both Sue and Merilyn. In the circumstances, it is submitted that it is unlikely that Bill would have made this statement. It is said that, rather, the statement seems to reflect Bruce and Edwina’s mutual belief that Bruce had not been treated as generously by his parents as his siblings.

99. [364]

    Third, it is noted that Edwina has deposed that, in 2013, Bill told Edwina that (Edwina’s affidavit sworn 28 September 2015 at [48]):

100. [365]

     To the contrary, Geoff gives evidence to the effect that Bill and he did not believe in showcase farms (Geoff’s affidavit affirmed 8 December 2015 at [128], [130]). Further, Geoff says that the term “full production” was not a term that Geoff ever used or ever heard his father use but rather, they would talk about The Springs reaching its “productive and financial potential” (Geoff’s affidavit affirmed 8 December 2015 at [128]).

101. [366]

     Merilyn and Bruce, on the other hand, say that their evidence of discussions with Bill can comfortably be accepted because that evidence is consistent with the email that Bruce sent to Sue on 3 October 2013 and the terms of Bill’s Will; and they say that it is also supported by Merilyn’s evidence and by Sue’s admissions in cross-examination, as well as by Geoff’s admissions that he had always understood that he needed to buy his parent’s share of The Springs land, or alternatively, the farm would be sold. It is said that this evidence is inconsistent with Geoff’s claim that, prior to 28 November 2013, he thought he would inherit Bill’s share of The Springs. It is said that while Bruce did not recall the details of what Bill told him about Geoff’s farm income in 2013, it is said that this is understandable given that seven years have passed since he sent the email to Sue.

102. [367]

     More generally, it is said that the criticism made of Bruce and Edwina’s credit were unjustified. For example, it is said that Bruce noted in his email that he was “following up” upon his discussion with Sue, which it is said shows that, contrary to the submissions made by Geoff, Sue was involved in discussions about Geoff’s inheritance in October 2013; and she admitted she thought Geoff was “conning” Bill. It is noted that Bruce’s email also confirms that he was not seeking any change to the inheritance Bill had arranged for the family.

103. [368]

     As to the particular matters relied on by Geoff and referred to above, I am not in a position to form a view as to where the truth lies in relation to conversations about cell grazing or farming methods. I do consider that Bruce’s initial evidence as to the 3 October 2013 email (in light of Bruce’s denial that he was attempting to calculate the income or revenue from The Springs) is problematic, but I am prepared to accept that he had forgotten the sending of that email and that his denial related more to the characterisation placed on the conduct referred to in the email than to the steps that he had taken at the time. I have referred above to Merilyn and Bruce’s account of their conversations with Bill. I consider below the findings to be made in relation to the alleged representations.

104. [369]

     Finally, as to the reliance placed by Merilyn and Bruce on the fact that Sue also had been involved in discussions with Bill about his estate, that does not seem to be relevant to an assessment of Bruce and Edwina’s credit, per se. (For completeness I note that the evidence suggests that Sue felt pressured by Bruce (such as when she refused to engage in further communication with him), which, from my assessment of their demeanour in the witness box, seems to me not implausible.)

105. [370]

     As noted above, Geoff submits that Bruce and Edwina gave false evidence about the letter from Bill to Bruce to which I have referred above and that the available inference is that the contents of the letter are adverse to Bruce’s interests. He submits that Bruce and Edwina were unimpressive witnesses who gave obviously untruthful and self-interested accounts of important matters and that their evidence should not be believed except where it was adverse to their own interests. Merilyn and Bruce say that such conclusions should not be drawn.

106. [371]

     I consider that there were certainly aspects of the evidence of Bruce and Edwina that were troubling – not least the evidence as to the alleged letter from Bill, but also as to the denials of the role each played in seeking to influence or persuade Bill in the exercise of his testamentary dispositions. I consider that both Bruce and Edwina have a fixed view as to the more favourable treatment they say was accorded to Geoff over the years (particularly in relation to Pindaroi) and that they have actively advocated Bruce’s cause. I cannot accept at face value Bruce’s denial of the existence of the alleged letter (or the suggestion that he understood Sue’s request for a copy of that letter as referring to the so-called biographical notes) but I do not go so far as to say that either Bruce or Edwina was dishonest in the giving of his or her evidence. I simply treat their evidence with caution given the evident self-interest and emotional investment they have in the outcome of the proceedings.

107. [372]

     No submissions were made adverse to Merilyn’s evidence. She presented as a calm and considered witness. I accept that she has done her best to give as objective a recollection of events as possible.

108. [373]

     As to Geoff’s credit, Merilyn and Bruce say that Geoff conceded various points when faced with the fact that his evidence did not “mesh” with his pleadings but that, generally, he sought to portray his and Bill’s intentions in the most favourable light, until confronted with his own evidence and pleadings. For example, it is noted that, when asked whether, in 1984, selling the farm for a profit was discussed at the time of the purchase of The Springs land and of the alleged promise, Geoff at first denied it but he later conceded it to be the case (T 52-53). Similarly, it is noted that Geoff contended at first in cross-examination that Jill was present for The Springs agreement alleged in 1984. He then gave contradictory evidence:

109. [374]

     It is submitted that Geoff appeared to make things up “on the fly” when it suited him. By way of example, Merilyn and Bruce refer to Geoff’s denial that he intended to give his Options Note to his father in 2014, and his subsequent retraction of that contention when faced with his own evidence that he did so intend (T 131). Merilyn and Bruce contend that his evidence follows a pattern of “improving” conversations alleged in his later affidavits; that they are self-serving, inherently unbelievable, and that they should not be accepted.

110. [375]

     Further, it is submitted that Geoff has a tendency to “re-write history”. It is said that Bill’s response to the Discussion Note was the Shopping List Note, which sets out matters which Geoff had “conveniently forgotten”. Likewise, it is said that Geoff’s statement to Bill in 2013 that he had “changed his position” (as reported by Fiona), was unacknowledged by Bill, and is inconsistent with the Discussion Note and the Options Note. It is said that this should be seen as no more than a wish expressed by Geoff that he should inherit more of Bill’s estate. Where Geoff’s evidence is not corroborated, and it relies upon conversations with Bill, Merilyn and Bruce say that it should be rejected.

111. [376]

     I formed the view that Geoff was endeavouring to give truthful evidence and his best recollection of events. Certain of his evidence, including that he was in complete shock when he learnt of his father’s Will rang true (see T 102).

112. [377]

     The impression I formed of the relationship between Geoff and Bill (from all of the differing accounts of the witnesses) was that Bill was the more dominant personality of the two and I considered that Geoff’s evidence rang true when he expressed the opinion that his father was not one to be “harped” at (T 125.20-25) (an observation that renders more explicable the fact that Geoff did not take issue in the Options Note with the decision he understood his father to have made to the effect that he would not leave him his interest in The Springs; and was instead seeking to come up with options for the way forward).

113. [378]

     However, I consider that the evidence does establish that Geoff was a poor historian in a number of respects and I consider that it is likely that Geoff’s recollection of alleged promises has been influenced heavily by what he considers to have been the basis of his arrangements with Bill (and perhaps his hopes or expectations as to what would flow from those arrangements); rather, than what necessarily occurred.

114. [379]

     Geoff also presented as confused at times in cross-examination – see, for example, the cross-examination at T 53-54 extracted above, as to whether Jill was present at the conversation to which he had deposed.

115. [380]

     As with Bruce and Edwina, I exercise caution in accepting at face value Geoff’s evidence of uncorroborated conversations with Bill, in circumstances where he has a clear personal interest in the outcome of the proceedings.

116. [381]

     To the extent that Fiona is relied upon as corroboration for Geoff, it is noted by Merilyn and Bruce that Fiona was Geoff’s de facto partner until shortly before the hearing and that she remains his business partner (having been involved in business with Geoff since 2014); and it is said that she sought to improve her evidence with discussions which did not appear in her affidavit (or in Geoff’s). It is submitted that Fiona’s evidence should be seen in the light that she assisted Geoff for “the last 5 ½ years in this legal matter” (Geoff’s affidavit sworn 4 August 2020 at [33]) and that she attended the mediation with Geoff on 29 April 2016 three months before her affidavit of 11 August 2016 (Edwina’s affidavit sworn 9 March 2017 at [25]). (Pausing here, there is no evidence before me – nor should there be – as to the mediation. I do not accept any submission based on Fiona’s attendance at any mediation when, for all I know, Fiona could have been there simply to support Geoff.)

117. [382]

     Merilyn and Bruce also make reference in this regard to the fact that Fiona and Geoff purchased a home together in Dorrigo on 15 October 2015 for $1.5 million. It is said by Merilyn and Bruce that Fiona’s evidence cannot be relied upon to bolster Geoff’s credit.

118. [383]

     Fiona struck me as a matter of fact and calm witness. She did not present as an advocate for Geoff’s cause (and indeed, Merilyn and Bruce rely on her version of certain conversations to disprove Geoff’s claims). Her account of events was not stated in cross-examination and she did not embellish her evidence. True it is that she added detail as to where the conversation in October 2015 took place (during lunch over near the cattle yards) (T 244) and as to a discussion in the vehicle going over there (T 246) but that was quite plausible and responsive to the questions she was asked. Fiona was firm in her evidence that Geoff complained to Bill that he had promised him the farm and that Bill did not deny Geoff’s claims. I accept that Fiona was a truthful witness and, indeed, it is her account of the October/November 2013 conversations that she overheard between Bill and Geoff (which I accept) that, together with Sue’s evidence as to her conversation with Bill in December 2013, has given me the most pause in determining the issue as to whether the alleged representations were made (and relied upon) so as to found the proprietary estoppel claim (as to which, see my findings below).

119. [384]

     Finally, I do not regard Fiona’s evidence that she had supported Geoff during the five years of the litigation as evidence of collusion – and the differences in their evidence make starkly apparent that they were not colluding in the giving of their evidence.

120. [385]

     Geoff submits that Sue was an impressive and credible witness whose evidence was adverse to her own financial interests. In that regard, it is noted that Sue is entitled to the residue under Bill’s Will (together with Merilyn and Bruce); and that if Geoff is successful in the Primary Proceedings, this will diminish the assets in Bill’s estate which are available for distribution to Sue. Geoff submits that Sue’s evidence should be accepted.

121. [386]

     Merilyn and Bruce, on the other hand, point to the inconsistencies in Sue’s evidence and her change of position in relation to Geoff. They submit that in light of Sue’s “antipathy” towards Bruce and Merilyn, Sue’s claims must be viewed as highly doubtful.

122. [387]

     Sue presented in the witness box as a timid and nervous witness. Sue did not display overt antipathy or hostility towards Bruce or Merilyn (although I accept that I saw no interaction between Sue and those of her siblings in the courtroom during the hearing). Taken to certain of her email communications with Bruce during the course of the executorship (copies of which were not put in evidence), Sue candidly accepted that she had stopped communicating with him (and, I gather, Edwina) in October 2014 (see at T 190.1-6); and Sue accepted that she had not had communications with Bruce for several years and said that it was impossible to work with them (Bruce and Edwina) (T 190). Sue’s evidence that she had, in effect, not wished to engage in confrontation with Bruce (that being her explanation for not having raised issues with him at an earlier stage or not having communicated certain things with him) was to my mind quite plausible. Sue’s account that they stopped communicating because she has decided to accept a property valuation and Bruce was adamant it should have been higher rang true (T 190.10).

123. [388]

     Given the forceful personality exhibited by Edwina in the witness box, and the forcefulness of the 3 October email which Bruce sent to Sue telling her to be resolute; and given the nervous manner in which Sue gave evidence, I can readily accept that Sue would have found Bruce and Edwina intimidating to deal with. In particular, I consider that the exhortations made by Bruce of Sue in the 3 October 2013 email bear that out.

124. [389]

     It is not apparent to me the basis on which Pembroke J expressed the (expressly not final) view that Sue had displayed antipathy towards Bruce or Merilyn. Rather, the problem seems to be that both Bruce and Edwina appear to have perceived Sue as being biased or sympathetic towards Geoff which are consistent with Sue’s recollection; and they had complained to her as not being diligent in her role as executor and her duty to uphold the Will.

125. [390]

     I consider Sue to be a truthful witness. I do not consider that her stance adopted in the litigation (so far as it involves matters of which I am aware) suggests that she has adopted a partisan role; rather than a role consistent with what she genuinely believed to be Bill’s wishes. Sue’s evidence was that in late 2012 Bruce and Edwina gave her a lot of numbers (T 187). Sue accepted that her change of sympathies, so to speak, coincided with her conversations in late 2013 with Bill. To my mind, it does not reflect adversely on Sue’s credit that she was prepared (at her own expense) to acknowledge and give primacy to what she understood to be Bill’s wishes.

126. [391]

     As I understand it, the position Sue has taken since then is consistent with a genuine belief on her part that, as at late 2013, Bill was considering changing his Will, in circumstances where he was concerned that Geoff might not be able to continue farming The Springs if he had to buy out his siblings’ share of the property and, perhaps, a lack of understanding as to her obligation as executor to uphold and defend the Will. Sue was quite firm in her evidence that Bill had wanted to leave something more to Geoff. That said, as already indicated, I approach with caution her impression that Bill considered he might have misled Geoff as to his inheritance – that to my mind involves a subjective assessment of Bill’s motivations and understanding (and is not corroborated by any contemporaneous document).

127. [392]

     In that regard, while I accept as truthful Sue’s account of the conversation (which I regard as significant) in which Bill said that Geoff probably had the expectation that he would inherit The Springs, to my mind that is not ultimately determinative of the proprietary estoppel claim (for the reasons I set out in due course).

128. [393]

     Merilyn and Bruce seek an adverse Jones v Dunkel inference arising from the fact that Geoff did not call Kaye as a witness in support of his claim, despite his claim that she witnessed “promises” his parents allegedly made that he would inherit The Springs and that Kaye was a partner of The Springs Partnership until the alleged “promise” in 2009. Geoff and Kaye had permanently separated by around 31 January 2008 and placed Pindaroi on the market for sale at that time. It is submitted that Kaye’s evidence may be expected to shed light upon facts relied on by Geoff and that no explanation was given for her absence (reference here being made to RHG Mortgage Ltd v Ianni [2015] NSWCA 56 (RHG v Ianni)).

129. [394]

     In submissions (at T 586.23-43) reference was made by Merilyn and Bruce to the quality of the relationship between Kaye and Geoff, in relation to the Jones v Dunkel inference sought to be drawn from Geoff’s failure to call her as a witness. It is noted by Merilyn and Bruce that, on Geoff’s evidence, Geoff and Kaye have a good relationship, in that: Geoff says their separation was “amicable” and that Geoff deposed that he and Kaye spent Christmases together after their divorce in 2010, with the exception of 2013 (which Merilyn and Bruce say does not appear to be the result of any hostility with Kaye) (Geoff’s affidavit affirmed 8 December 2015 at [149]):

130. [395]

     It is said that, as this was the entirety of the evidence of the relationship and there was no evidence to the contrary, there was no need to cross-examine Geoff about his relationship with his former wife, Kaye (as his own evidence demonstrated that he had a good relationship with her).

131. [396]

     It is thus submitted by Merilyn and Bruce that there are grounds to infer that Kaye’s evidence would not have assisted Geoff’s case.

132. [397]

     The basis of the rule in Jones v Dunkel (and cognate rules) was explained by Glass JA in Payne v Parker [1976] 1 NSWLR 191 at 200-202 (Payne v Parker) per Glass JA and, more recently, in RHG v Ianni at [75]-[76] and [78] - [79] per McColl JA (to which latter authority Merilyn and Bruce have referred).

133. [398]

     It is well-known that the rule in Jones v Dunkel (which is not a mandatory rule) applies where there is an unexplained failure by a party to adduce evidence in order to contradict a matter which arises upon the issues in the proceedings. In appropriate circumstances, an inference may be drawn that the uncalled evidence would not have assisted the party. However, it is necessary that the uncalled witness be someone who could reasonably be expected to shed light on the facts relied on by a party as the basis for the contended inference and an unfavourable inference may not be made solely because a witness was not called, rather the evidence must support the inference.

134. [399]

     In Payne v Parker (see at 200-202), Glass JA referred to circumstances including where “it would be natural for one party to produce the witness” or the witness would be expected to be available to one party rather than the other, or where the circumstances excuse one party from calling the witness, but require the other party to call the witness, or where the witness “might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him”.

135. [400]

     In the present case, the “uncalled witness” in respect of whom the adverse inference is sought is Geoff’s former wife, Kaye. I do not accept that an ex-spouse is someone who would ordinarily be seen as being within the “camp” of someone in Geoff’s position (however amicable their separation and subsequent attendance at annual Christmas get-togethers with their children may have been); and, more relevantly, I see no reason why it would be suggested to have been unrealistic for Merilyn and Bruce (Kaye’s ex-sister-in-law and brother-in-law, respectively) to have called Kaye had they wished to do so.

136. [401]

     I accept that Kaye may have been able to shed certain light as to the circumstances in which the family partnerships operated or assets were acquired (although the latter is perhaps more of a stretch given that it appears that the relevant partnership accounts were prepared by Mr Carrigan and he does not suggest that he did so on Kaye’s instructions). However, I consider it mere speculation that she might have been able to shed light on conversations or promises made as between Bill and Geoff (to which promises it is not said she was privy).

137. [402]

     Insofar as the high point of the submission for Merilyn and Bruce might be as to the manner in which, or assumptions by reference to which, the property settlement between Kaye and Geoff was arrived at in relation to their Family Court proceeding, I do not consider that any adverse inference should be drawn from the fact that Kaye was not called to explain this. This is such not least because all manner of explanations might arise from the failure to include reference to testamentary expectations in a document that may not even have been prepared by Geoff.

138. [403]

     I therefore draw no adverse inference from the fact that Geoff did not adduce evidence from Kaye.

Determination of issues in the proceeding

1. [404]

   Having set out above the background to the proceeding, chronology of events and credibility findings, I propose first to deal with Geoff’s proprietary estoppel claim and next the first cross-claim (and related second cross-claim to the extent it arises), before addressing the family provision claim. That is because the determination of the other issues will necessarily have an impact on the family provision claim, one way or another.

Primary proceedings – proprietary estoppel claim

1. [405]

   Geoff’s primary case is a claim of estoppel by encouragement. Geoff submits, as adverted to above, that Bill, through a number of representations made to him, encouraged Geoff to alter his position (to his detriment) in the expectation that Bill would devise his proprietary interest in The Springs to Geoff in his last Will. Geoff seeks a declaration that the executors of Bill’s estate (namely, Geoff and Sue) hold the half share in the land known as The Springs on trust for Geoff.

2. [406]

   At the outset, it is relevant to note (as Merilyn and Bruce emphasise) that the statement of claim as originally filed was based on the allegation that an oral agreement was entered into “at the time of the purchase of The Springs” (i.e., on or around 29 November 1984) (see original and amended statement of claim at [13]-[14]). The terms of the agreement were pleaded as being that: Bill would fund his half of the purchase of the land with the balance being paid from a loan with the bank obtained by Geoff; Geoff would undertake or organise all labour; Geoff would supply and use his own farm vehicles, fuel, machinery, and tools, at his own cost; Geoff would repay the bank from profits of the business; and Bill represented that Geoff would inherit Bill’s share of The Springs. This agreement was defined in the statement of claim (and in the amended statement of claim) as “The Springs agreement”. It was alleged that this agreement was “renewed” in 2004 on similar terms; and then “renewed” once more in 2009. The pleaded reliance and detriment was by reference to the pleaded Springs agreement; and the claimed estoppel was that Bill was estopped from making his last Will “inconsistent to The Springs agreement”.

3. [407]

   In cross-examination, Geoff resiled somewhat from the terms of the alleged 1984 Agreement. So, for example, at T 45, Geoff said in effect that it was only his assumption (i.e., not a term of the agreement) that he would supply his own farm vehicles and on the like. Moreover, an obvious difficulty with the alleged reliance relating to his consulting business was that this was not commenced until 2000, well after the original alleged Springs agreement.

4. [408]

   The pleading of agreed terms of the original oral agreement in 1984 and renewal in 2004 thus appeared to include a mixture of assumption and reconstruction on Geoff’s part.

5. [409]

   By the time of the hearing, the contention as to the claimed declaration of trust was predicated on the alleged promise made by Bill in about early 2009 to devise his half of The Springs to Geoff in his Will the making of which is said by Geoff to be supported by and consistent with Sue’s evidence of her conversation with Bill in December 2013 and Fiona’s evidence of the conversation she heard between Geoff and Bill in 2013 (set out above). (In addition, as noted above, Geoff relies on an adverse inference that he says should be drawn in relation to the contents of the alleged (missing) letter from Bill to Bruce.)

6. [410]

   Geoff maintains that he relied upon Bill’s promise and that he shaped the course of his life over the next five years (from 2009) accordingly. It is said that the promise was made for the purpose of inducing Geoff not to take a different course (of ceasing to be a farmer, selling The Springs and starting a new life as a full-time consultant in a different town); that the inducement was successful; and that it would be unconscionable for Bill not to be held to the promise he made.

7. [411]

   Reliance is here placed by Geoff on the doctrine of proprietary estoppel in the form of estoppel by encouragement (rather than estoppel by acquiescence) referring to authorities such as Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 at 112 per Gleeson CJ, McHugh, Gummow and Callinan JJ; Wantagong Farms Pty Ltd as Trustee for the Bulle Family Trust v Bulle [2015] NSWSC 1603 (Wantagong Farms) at [60] per Ball J; and Milling v Hardie [2014] NSWCA 163 (Milling v Hardie) at [36] per Macfarlan JA (with whom Beazley P, as Her Excellency then was, agreed); namely, the estoppel arising where the owner of real property encourages another to alter his or her position in the expectation of obtaining a proprietary interest and that other, in reliance on the expectation created or encouraged by the property owner, has changed his or her position to his or her detriment (see Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84 (Delaforce v Simpson-Cook) at [21] per Handley AJA (with whom Allsop P, as his Honour then was, and Giles JA agreed); Van Dyke v Sidhu (2013) 301 ALR 769; [2013] NSWCA 198 at [38] per Barrett JA (with whom Basten JA and Tobias AJA agreed)).

8. [412]

   Geoff has referred, in particular, to the summary of the principles of estoppel by encouragement by Ball J in Wantagong Farms at [60]-[73], including the requisite elements (see at [62]) being: (i) the encouragement or inducement of an expectation of a future transfer of an interest in property; (ii) reliance on that expectation in the form of a change of position by the party seeking to establish the estoppel; (iii) and an identifiable detriment to the recipient of the assurance as a result of the change of position, where the expectation is not fulfilled).

9. [413]

   It is noted by Geoff that the overarching question is whether it would be unconscionable in all the circumstances of the particular case to permit a departure from the encouraged expectation (see Gillett v Holt [2001] Ch 210; [2000] EWCA Civ J0308-3 (Gillett v Holt) at 225 per Robert Walker LJ (with whom Waller and Beldam LJJ agreed); Delaforce v Simpson-Cook at [3] per Allsop P; Wantagong Farms at [62]).

10. [414]

    The assurance or encouragement which engenders the expectation of the party asserting the estoppel must possess some level of clarity, must be unambiguous and must appear to have been intended to be taken seriously, but need not be at the level of certainly or specificity that would be required to establish a contractual obligation (Thorner v Major [2009] 3 All ER 945; UKHL 18 (Thorner v Major) at [56] per Lord Walker; Sullivan v Sullivan (2006) 13 BPR 24,755; [2006] NSWCA 312 (Sullivan v Sullivan) at [84] per Hodgson JA (with whom McColl JA agreed); Wantagong Farms at [63]).

11. [415]

    The inherent revocability of testamentary dispositions is not necessarily a bar to finding that statements of testamentary intention are capable of serving as a basis for a proprietary estoppel, as even when the promise or assurance is in terms linked to the making of a will, the circumstances may make clear that the assurance is more than a mere statement of present (revocable) intention, and is tantamount to a promise (Gillett v Holt at 227-8 per Robert Walker LJ (with whom Waller and Beldam LJJ agreed) cited in Delaforce v Simpson-Cook at [36] by Handley AJA). Reliance on representations of a testamentary disposition may be reasonable in circumstances where assurances to this effect are repeated over a long period (Gillett v Holt at 228). However, cases involving a representation as to testamentary intention are said to require circumstances that the promise was given and understood to be irrevocable. Young CJ in Eq, as his Honour then was, stated in Barnes v Alderton (2008) 13 BPR 25,281; [2008] NSWSC 107 (Barnes v Alderton) at [58] that, “that may be shown by circumstances short of an explicit statement that the promise is irrevocable.” The question is not whether the person incurring the detriment understood that testators may change their wills, it is whether it was reasonable for the person incurring detriment to understand the particular encouragements or inducements in the circumstances to be an irrevocable promise (Barnes v Alderton at [51]-[54], [58]).

12. [416]

    The onus of proving that the encouraged expectation was acted upon lies on the party seeking to establish the estoppel (Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 (Sidhu v Van Dyke) at [61] per French CJ, Kiefel, Bell and Keane JJ). In Sidhu v Van Dyke the plurality emphasised that “[r]eliance is a fact to be found; it is not to be imputed on the basis of evidence which falls short of proof of the fact”, going on to say that:

13. [417]

    An estoppel is enforceable due to the detriment the asserting party would suffer as a result of his or her original change of position, if there were to be a repudiation of the assumption or expectation which induced the reliance in question. The relevant detriment is not the loss flowing from the non-fulfillment of the promise (Delaforce v Simpson-Cook at [42]; Wantagong Farms at [68]). It is noted that in some cases, “[t]he requirements of good conscience may mean that … the value of the promise may not be the just measure of relief” (Sidhu v Van Dyke at [83]). The detriment may be “of a kind and extent that involves life-changing decisions with irreversible consequences of a profoundly personal nature” which go “beyond the measure of money and such that the equity raised by the promisor’s conduct can only be accounted for by substantial fulfilment of the assumption upon which the respondent’s actions were based” (Donis v Donis (2007) 19 VR 577; [2007] VSCA 89 (Donis v Donis) at [34] per Nettle JA (with whom Maxwell ACJ and Ashley JA agreed) quoted with approval in Sidhu v Van Dyke at [84]). It is not necessary that the conduct of the representor should be the sole inducement operating on the mind of the representee; but rather, it is sufficient that it is a contributing cause of the representee’s acts in reliance thereon (Sidhu v Van Dyke at [71]-[73]).

14. [418]

    It is noted by Geoff that the form of relief that would be appropriate in any given case depends on the circumstances of the particular case and is not limited “to removing or reversing the detriment suffered by the party entitled to the estoppel” or enforcing “the minimum equity to do justice to the plaintiff” (Duic v Duic [2013] NSWCA 42 at [20] per Macfarlan JA (with whom Beazley JA, as Her Excellency then was, and Barrett JA agreed); Delaforce v Simpson-Cook at [56], [59]; Wantagong Farms at [70]-[71]). While proportionality of the claimed interest or remedy to the prejudice or detriment is a relevant consideration, it is not to be “transformed into a necessary constitutive element of a cause of action to be pleaded or proved by the party seeking relief” (see Delaforce v Simpson-Cook at [4], quoted in Wantagong Farms at [73]).

15. [419]

    As noted above, by the time of the hearing, Geoff’s case was focused on the allegation that in the discussions concerning The Springs (from late 2008 to early 2009), Bill made representations to Geoff in early 2009 to the effect that Bill would devise his interest in The Springs to Geoff in his Will, if Geoff continued to hold his interest in The Springs and farm the property with Bill (Geoff’s affidavit sworn 18 October 2018 at [45]-[50]).

16. [420]

    Geoff says that, at about the time that (on 1 May 2009) he and Bill entered into a new partnership (The Bassett Grazing Co Partnership), they had a further conversation in which Bill represented that Geoff would receive Bill’s half-share of The Springs property and partnership in Bill’s Will (Geoff’s affidavit sworn 18 October 2018 at [52]).

17. [421]

    It is submitted by Geoff that the representations made by Bill concerning The Springs were clear, emphatic and unambiguous representations that, if Geoff continued to work on The Springs, he would inherit Bill’s interest in the land (see Thorner v Major at [56], Sullivan v Sullivan at [84], Wantagong Farms at [63]). Similarly, it is said that there can be no doubt that Bill appreciated that his representations would be taken seriously. Geoff says that he told Bill that he was relying on the representations. It is said that the representations made concerning The Springs by Bill were tantamount to a promise (Gillett v Holt at 227-8, quoted in Delaforce v Simpson-Cook at [36]) and that the fact that Bill altered his position four years later (shortly before his death) does not detract from this conclusion.

18. [422]

    It is acknowledged by Geoff that none of the representations was observed by any other witness in these proceedings. However, Geoff points to the following evidence from other witnesses.

19. [423]

    First, the evidence of Fiona (referred to above). Geoff places weight on Fiona’s account of the November 2013 conversation. In particular, that when Geoff put to Bill that he had previously promised Geoff “the farm”, Bill did not dispute it. It is submitted that, if Bill had not made such a promise concerning The Springs, it is almost certainly the case that Bill would have disputed Geoff’s assertion that he promised him “the farm”. Given the date of the conversation, it is said that the reference to “the farm” could only have been a reference to The Springs. Weight is also placed on the further conversation to which Fiona deposes in which Geoff put to Bill that he was “changing” what he had promised to Geoff. It is said that, although neither Geoff nor Bill referred to The Springs on this occasion, this conversation supports Geoff’s account because if Bill had not reneged on a promise to Geoff, it could be expected that Bill would have challenged the statement that he had “changed” what he had promised to Geoff. It is said that Fiona’s evidence is supportive of Geoff’s evidence that Bill promised to leave his interest in The Springs to Geoff in his Will or, at the very least, that Geoff would receive sufficient funds from Bill to be able to buy the property from his siblings.

20. [424]

    (Geoff relies on Fiona’s evidence of the October 2013 conversation between himself and Fiona as being inconsistent with any suggestion that, after Bill died, Geoff had invented Bill’s promise to leave The Springs to him.)

21. [425]

    Second, Geoff relies on the evidence of Howard Judd, a cattle grazier who lives in Inverell and has known Geoff for 25 years. Mr Judd gave evidence as to Bill’s intentions concerning his interest in The Springs (Judd’s affidavit sworn 15 August 2016 at [18]), namely that, when Mr Judd was working on The Springs with Bill and Geoff in 2005, Bill said to Mr Judd “[w]hen this [referring to ‘The Springs’] is Geoff’s he can invest as much money in the farm as he wants to” (Judd’s affidavit sworn 15 August 2016 at [11]).

22. [426]

    Third, Geoff relies on Sue’s account of the conversation with Bill in Coffs Harbour in December 2013. It is said that the impression Sue formed is consistent with Geoff’s account that Bill promised to leave him Bill’s half share in The Springs and later changed his mind and told Geoff that he would only leave him 25% of his estate. As noted above, it is submitted that Sue is a credible witness and that her evidence should be accepted. (I have dealt with this already.)

23. [427]

    Geoff submits that Bruce and Edwina’s various accounts of these conversations with Bill should not be accepted for the reasons set out above concerning their credibility. (Again, I have already considered their credibility.)

24. [428]

    However, Geoff submits that even if Bruce and Edwina’s evidence were to be accepted, it is plausible that Bill promised The Springs to Geoff but gave a different account of his testamentary intentions to Geoff’s siblings. It is said that it is apparent from that evidence that Bill was a very proud man who was very proud of his success as a farmer (T 277.23-28); and that, when Bill was speaking with Geoff’s siblings, he did not generally talk about Geoff’s success as a farmer (T 277.35-37). Notwithstanding that Geoff was an accomplished farmer who had won a number of awards throughout the course of his career. Rather, it is said that Bill would tell Geoff’s siblings about how much he and Jill had done for Geoff to assist with his career as a farmer and had told Bruce that Geoff was only able to have a career in farming because of what he and Jill had done for Geoff (T 277.43-50). In this context, it is noted that Bill had told Bruce that he had made better decisions than Geoff concerning the type of sheep he wanted to run on his properties (T 278.23-26). Bruce says that Bill told him during the 1990’s that “Geoff should be able to make money from Pindaroi, but he’s always got to have the best, that’s his trouble. He keeps spending, even when things are bad …. My crossbred sheep cut more wool and produce more meat than Geoff’s Egelabra bloodline. Now that wool prices have fallen, Geoff has wasted a lot of money on his breeding program” (Bruce’s affidavit sworn 28 September 2015 at [74]; T 279.7-34). It is said that Bill had similar discussions with other family members both in the presence of Geoff and when Geoff was not present (T 279.41-T 280.21).

25. [429]

    It is submitted that, although Bill and Geoff had a very good personal relationship and business relationship, this evidence is suggestive of the fact that in his later life, Bill either understated Geoff’s success as a farmer or attributed that success to his own beneficence. It is said that this is consistent with the fact that from time to time, Bill would take credit for the work that Geoff had conducted on The Springs (Geoff’s affidavit affirmed 8 December 2015 at [128]). It is said that it is plausible that Bill did not want to admit to Bruce and Edwina that he needed Geoff to work The Springs on his behalf (because Bill was physically unable to do so) and that he had promised Geoff that he would leave The Springs if he did so.

26. [430]

    Insofar as Bruce and Edwina speculate that Geoff’s business is based on “pseudo-science” and allege that he is selling products that do not work, it is submitted that this is another attempt to denigrate Geoff and his business. It is said (and I agree) that this is not relevant to the question whether Geoff’s business was profitable (and would have been more profitable if Geoff had devoted his full attention to the business instead of continuing to work on The Springs).

27. [431]

    Geoff says that in the period since Bill’s death, the number of clients to which Geoff provides consulting services has increased significantly. It is noted that in the period between 1 July 2008 to 30 June 2009, Geoff had approximately 30 clients; and that in the period from 1 July 2015 to 30 June 2016 (being after Bill had died), this number of clients had grown to 48 clients (Geoff’s affidavit sworn 4 August 2020 at [6]). It is said that this number has steadily grown over the last 4 years (Geoff’s affidavit sworn 4 August 2020 at [6]).

28. [432]

    As at 30 June 2020, Geoff consulted to clients who, collectively, owned 410,000 acres of land (being 1,660 km2) (Geoff’s affidavit sworn 4 August 2020 at [7]). It is submitted that this supports the finding that Geoff’s consulting business would have had the potential to grow in the period from 2009 to 2014 if Geoff had been focusing on developing it, rather than diverting his attention to the management of The Springs.

29. [433]

    It is submitted that the turnover and profits derived from this consulting business in the period since Bill’s death are not a reliable indicator of the turnover and profits Geoff would have derived from this business if he had pursued it full time in the period from 2009 to 2014 because, in the period from 2014 to date, a large number of the New South Wales based properties in respect of which Geoff provides consulting services have been affected by drought conditions (Geoff’s affidavit sworn 4 August 2020 at [14]). It is said that his clients who own those drought affected properties have been purchasing fewer products from him. This is said to be for two reasons. First, much of the revenue in Geoff’s consulting business is derived from selling “soil amendment” products (Geoff’s affidavit sworn 4 August 2020 at [14]). These “soil amendment” products require a certain level of moisture in the plants and soil to be effective and therefore, it is difficult to sell those products to farmers whose properties are drought affected. Second, many of Geoff’s clients do not have sufficient funds to buy these products because the drought has affected their property and source of income Geoff’s affidavit sworn 4 August 2020 at [14]). Accordingly, it is submitted that, while Geoff has been steadily growing his business, this has not necessarily translated to increased revenue and profit during this drought affected period.

30. [434]

    In any event, it is submitted that the nature of the detriment suffered by Geoff is of a different character to that of merely having not derived as much revenue for a period of five years than he might otherwise have done. It is submitted (invoking the language from Donis v Donis and Sidhu v Van Dyke) that he made a decision that substantially affected the course of his life when compared with what would otherwise have occurred.

31. [435]

    Geoff gives evidence as to what he would have done if the representations had not been made; namely, that the representations had an “enormous influence” on what he decided to do following the sale of Pindaroi and his divorce; and that if Bill had not made the representations, he would have insisted on selling The Springs or making some arrangement with the deceased so he owned 100% of The Springs (Geoff’s affidavit affirmed on 30 March 2015 at [64]). Geoff’s evidence is that he “put the expansion of [his] successful consultancy business on hold and continued to work on The Springs” as he was “prepared to suffer a financial loss in the short term knowing that The Springs would be [his] eventually” (Geoff’s affidavit affirmed on 30 March 2015 at [65]). Geoff gives evidence that if he had not continued to farm The Springs with Bill, he would have put the money he received from the divorce into a term deposit and pursued his consultancy career (Geoff’s affidavit affirmed on 30 March 2015 at [66]).

32. [436]

    It is submitted that there is contemporaneous evidence which supports Geoff’s evidence concerning his decision to continue to farm The Springs in lieu of pursuing his consulting business. Mr Paul Harmon, the town Mayor of Inverell, gives evidence of a conversation he had with Geoff “a few months” before the sale of Pindaroi (Paul James Harmon’s (Harmon) affidavit sworn 16 August 2016 at [5]). Relevantly, in the context of discussing the sale of Pindaroi, it is Mr Harmon’s evidence that he asked Geoff “Are you still doing the consultancy work you were interested in?” to which Geoff replied “I need to focus on the farm. I can’t get into the consultancy work too much because I don’t have the time to split between the farm and my consultancy business” (Harmon’s affidavit sworn 16 August 2016 at [5]). Mr Harmon also gives evidence of a further conversation with Geoff after Geoff had “moved into Clancy’s Drive” in which Mr Harmon inquired whether Geoff was “doing the consultancy business full time now?” and to which Geoff responded “No, I would like to but, I don’t have enough time to expand the consultancy business. I dabble in it here and there because people often contact me wanting advice and information, but Dad’s not able to run the farm on his own so I have to invest most of my time and energy into that” (Harmon’s affidavit sworn 16 August 2016 at [7]). It is submitted that this evidence lends significant weight to Geoff’s evidence that he had to make a choice between working on The Springs and pursuing his consultancy business. It is said that Mr Harmon is an independent and credible witness with nothing to gain from this proceeding and that his evidence should be accepted.

33. [437]

    The detriment which Geoff says he has suffered, by reason of changing his position in reliance on Bill’s representations, is said to be threefold.

34. [438]

    First, that faced with a choice as to the direction of his life following the end of his marriage and the sale of his family farm and home, Geoff made a decision based on the promise from Bill.

35. [439]

    Second, that over a period of five years, Geoff delayed the development of his consulting business (and only conducted the business on a part time basis during that period). It is said that Geoff thereby gave up the opportunity to pursue his consulting business full time.

36. [440]

    Third, that over a period of five years, Geoff has conducted significant work on The Springs for which he has not been paid. While it is accepted that Geoff, as a half owner of The Springs, received benefit from this work, it is noted that Bill received an equal benefit from this work for which Geoff received no compensation. Geoff provides evidence of his usual practice concerning his work on The Springs during the period from 2009 until his father’s death in January 2014 (Geoff’s affidavit sworn 4 August 2020 at [56]). Relevantly, the work Geoff conducted during this period on The Springs included fencing (being installing fence posts and running fence wire and tensioning that wire), using a chainsaw to cut down trees and branches that had fallen onto a fence, digging up and repairing broken water pipes, carting gravel, conducting repairs to farm tracks and water troughs, mustering livestock, drenching and drafting livestock in the cattle yards, sorting the livestock for sale, shooting feral animals, controlling timber regrowth along the fence lines and liaising with professional “roo shooters” and other contractors (Geoff’s affidavit sworn 4 August 2020 at [56]).

37. [441]

    It is Geoff’s evidence that it was his usual practice to work about 20 hours a week on The Springs during this period (other than a total of 11-12 weeks of holidays he took). On the basis of this usual practice, Geoff estimates that he worked approximately 5,000 hours on The Springs during this period (see Geoff’s affidavit sworn 4 August 2020 at [57]; cf plaintiff’s submissions at [145]). Geoff gives evidence that in his experience, he would usually pay an experienced farm hand between $40 and $50 per hour (Geoff’s affidavit sworn 4 August 2020 at [57]). Accordingly, by way of illustration, it is said that Geoff would have contributed labour with an approximate value of $237,000 on The Springs during this period, half of which was for the benefit of Bill (and for which Geoff received no compensation).

38. [442]

    It is submitted that it would be unjust or inequitable to allow the assurance made by Bill to be disregarded (citing Gillett v Holt at 232). Further, although proportionality of the claimed interest or remedy to the prejudice or detriment is undeniably a relevant consideration, it is submitted (and I agree – see E Co v Q [2018] NSWSC 442 (E Co v Q) at [1187]-[1190]) that it is not a necessary constitutive element of the cause of action (citing Wantagong Farms at [70]-[72]).

39. [443]

    As noted already, Merilyn and Bruce emphasise that Geoff’s first claim in the amended statement of claim is made on the grounds of an estoppel against Bill’s estate based upon alleged representations by Bill since 1984 to the effect that Geoff would inherit Bill’s share of “The Springs” farm.

40. [444]

    Insofar as Geoff has pleaded an oral agreement with Bill in 1984, which was extended to include Bill’s share of Hurricane Hill upon the purchase of that land in about 2004, and again “renewed” in 2009, after Jill’s death and upon the formation of The Bassett Grazing Co Partnership, Merilyn and Bruce refer to what was said in Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12 (at [73]) by Bathurst CJ (with whom McColl and Meagher JJA agreed); and further in McGrath v Troy as Administratrix of Estate of Wade [2010] NSWSC 1470 at [39] per White J, as his Honour then was.

41. [445]

    It is noted that cases of equitable estoppel are also not governed by subjective opinion or “the formless void of individual moral opinion” (Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 8 (Muschinski v Dodds) at 615-616 per Deane J, citing Carly v Farrelly (1975) 1 NZLR 356 at 367 per Mahon J).

42. [446]

    Merilyn and Bruce contend that no “ratification” of the promise allegedly made by Bill should be made. They say that the agreements pleaded in [13], [18] and [19] of the amended statement of claim were: oral; not reflected in any writing by Bill; contrary to the understanding of other family members (i.e. in contrast to a promise by the deceased and Jill to leave the family property, Pindaroi, to Geoff); not supported by any other witnesses except by way of inference and supposition; contrary to the practice adopted by Bill (and, during her lifetime, Jill) of dealing with Geoff in a transparent and commercial manner in their farming partnerships and land transfers; and inconsistent with statements made by Geoff, inter alia, to Bill before his death.

43. [447]

    Merilyn and Bruce further note that, to accept Geoff’s uncorroborated accounts of the alleged representations given in conversations between himself and his father, there must be felt “an actual persuasion of the occurrence of any conversation propounded by [Geoff]” (citing John Holland v Kellogg Brown Root Pty Ltd [2015] NSWSC 451 at [94] per Hammerschlag J). It is said that the fact that the 2009 Will, which specifically excluded a gift of The Springs and Hurricane Hill real estate, was made so soon after the alleged conversation which took place on the establishment of The Bassett Grazing Co Partnership adds to the implausibility of Geoff’s accounts of the alleged agreement (cf White v Philips Electronics Australia [2019] NSWCA 115 at [49] per Bell P (with whom Basten and Gleeson JJA agreed)). Reference is also made in this context to the well-known passage in Watson v Foxman (1995) 49 NSWLR 315 at 318 per McLelland CJ in Eq.

44. [448]

    Turning to the respective alleged representations, Merilyn and Bruce submit as follows.

45. [449]

    It is noted that, although in opening submissions for Geoff and in his oral evidence it was asserted that Geoff had “made a new arrangement in 2009”, in cross-examination Geoff agreed with the proposition put to him that from the 1984 conversation to which he had deposed he had taken with him a belief that subsisted right up to a short time before Bill’s death, that Bill would leave The Springs to him (see T 51.16-20). Accordingly, it is said that Geoff’s evidence about the basis upon which he agreed with his father to farm with him in partnership in 1984 must inform the contents of the alleged 2009 agreement.

46. [450]

    It is noted that, in cross-examination, Geoff agreed that the evidence of the conversations he had with his father in 1984 did not include a representation that Geoff would have to supply his farm vehicles, fuel, machines and the like at his own cost but, rather, that that was something that “he assumed” (T 45.41-46.1); that Geoff agreed that he and Bill equally owned all of the improvements, fixtures, plant and equipment purchased with The Springs, and that they “shared” their plant and equipment; and Geoff conceded that (at T 47.26-30):

47. [451]

    Merilyn and Bruce say that Geoff also retreated from the allegation that he had been required, as a condition of the agreement with Bill, to repay the loan from the bank from “profits of the business” (T 47.32-48.1); and did not maintain the allegation that he was required to “organise and manage” all the labour to be done on the property. It is noted that the evidence was that Bill worked on The Springs property with Geoff, as did farmhands who were paid by Bill and Jill, and that on Geoff’s evidence Bill only ever said to him that he should “complete or organise the majority of the labour to run the property” (T 49.17-50.1).

48. [452]

    They point out that Geoff agreed that Bill did, as promised, provide the capital to purchase The Springs land (with Geoff borrowing his share with a loan guaranteed by Bill and Jill) and that he obtained a loan (T 50.26-39). They maintain that Geoff provided no capital for the purchase (by which it appears they exclude the borrowed funds for which Geoff had assumed liability as borrower).

49. [453]

    Merilyn and Bruce say that it is notable that the first two sets of representations are alleged to be made only by Bill, notwithstanding that Jill was a 25% owner of The Springs and of Hurricane Hill. It is noted that Jill’s earlier Wills (as is the case with Bill’s earlier Wills) do not reflect any acceptance of such an arrangement and it is said that this goes to the lack of corroboration for the alleged representations.

50. [454]

    It is submitted that a major difficulty with Geoff’s claim is that there is no credible, clear evidence that Jill (a 25% owner of The Springs and, later, a 25% owner of Hurricane Hill) was a party to any alleged representation that Geoff would inherit The Springs. It is noted that Geoff accepted that Jill was not there when the conversation pleaded to have set up The Springs agreement took place. Geoff pleads that the promise appeared to be made on behalf of his mother (to “buy us out”) but it is said that he failed to give any credible recounts of his mother’s involvement in the alleged promise.

51. [455]

    Merilyn and Bruce argue that it is fatal to Geoff’s claim that the evidence supporting the representation as to testamentary intentions alleged to have been made by Bill does not constitute a testamentary promise (see [14](v) of the amended statement of claim). Geoff’s evidence is that Bill said, “you can buy us out of our share or inherit it” (Geoff’s affidavit affirmed 30 March 2015 at [23]). It is noted that Geoff agreed that the alleged promise was no more than one of the possibilities that might ensue, those possibilities including: Geoff and Kaye buying Bill and Jill out of the farm; Geoff inheriting the farm; or the farm being sold for a profit (T 52.5; 52.30-37). It is submitted that the promise, if made, was not one which was “expressed categorically so as to leave no room for doubt” (Sidhu v Van Dyke at [86]).

52. [456]

    In particular, reference is made to Geoff’s evidence in cross-examination that he understood that, from 1984 to 2014, that if he wanted to own his parent’s share of The Springs, he needed to buy it, or alternatively, The Springs would be sold; and his acceptance that the requirement to buy his father’s share of The Springs land was “inconsistent with relying on a promise that [Bill] was going to leave it to [Geoff] in his will” (at T 95.27-30) and also that “I wouldn’t be able to inherit the land if we actually sold it” (at T 92.35-40). In cross-examination, there was the following evidence (at T 52.24-37):

53. [457]

    It is said that this is consistent with Geoff s evidence that, when he and his parents bought the farm, they “intended to farm on The Springs and generate income whilst waiting for the land to appreciate in value, until we wished to profit from the capital gain on the land” (Geoff’s affidavit sworn 8 June 2017 at [108]).

54. [458]

    Geoff also says that, as an alternative to selling the land, it was agreed he could “buy my parents half of The Springs from them” within about 6 to 10 years after he repaid the “interest free” loans from The Monowai Partnership for him to buy his half of the land (Geoff’s affidavit sworn 8 June 2017 at [107]). However, Merilyn and Bruce point out that Geoff acknowledged that he did not repay his parents The Monowai Partnership loans, which instead continued for 24 years until $162,000.00 was paid to Bill on 26 June 2009 (The Shopping List Note). It is said that these loans were “interest free” and Mr Loneragan has calculated the interest waived by Bill and Jill for those loans to be $407,419.82 simple interest and $1,934,855.71 in compound interest (Loneragan Report at p 47).

55. [459]

    It is also noted that in early 2009, Geoff says that he proposed to his father that they “could sell The Springs” or “perhaps I could buy out your share, or maybe we could keep farming together in a new partnership” (Geoff’s affidavit affirmed 30 March 2015 at [63]). It is said that this is consistent with the arrangement that had existed for the farm since 1984, namely that Geoff was required to buy Bill’s share of the land, or the land would be sold, and that it demonstrates that Geoff could not reasonably have relied upon an alleged promise that he would inherit that land.

56. [460]

    Merilyn and Bruce place weight on the admission by Geoff in cross-examination that he continued to expect that the land could be sold between 1984 until his father’s death in 2014, as reflected in the Options Note (see below) (at T 132.35-45):

57. [461]

    Geoff also confirmed that at the time of his father’s death in 2014, another option was that he would buy his father’s share of the land, which had also been a continuous option for the previous 30 years (T 133.11-15):

58. [462]

    Pausing here, it is said by Merilyn and Bruce that these understandings by Geoff contradict Geoff’s case of detrimental reliance (as to which see further below). In particular it is said that Geoff understood from 1984 to 2014 that The Springs land could be sold or he would otherwise need to buy his parent’s share of the land, and he did not change his position in 2009, but was content to continue farming with Bill with that understanding.

59. [463]

    It is noted by Merilyn and Bruce that Geoff said that his intention was “short-term” in relation to the duration of the partnership; and that he intended to buy his father out “as quickly as possible”, which he expressed as being “within six to ten years” (T 55.40-45); and that, while Geoff initially denied that selling the property for a profit was in his mind when The Springs was purchased, Geoff later agreed in cross-examination that he also viewed an option as being to realise the capital gain by selling The Springs for a profit, and that he convinced Kaye to join in The Springs on the basis that it was a “short term investment for maybe six to ten years” (Geoff’s affidavit sworn 8 June 2017 at [107]-[108]). It is noted that Geoff ascribed the desire to realise the capital gain as being an intention of Jill and Bill as well as himself (Geoff’s affidavit sworn 8 June 2017 at [108]).

60. [464]

    Merilyn and Bruce point to the acceptance in cross-examination by Geoff that the conversation alleged to have taken place with Bill in 1984 upon the purchase of The Springs was not consistent with the pleaded promise (see above).

61. [465]

    It is said that it is unlikely, in circumstances where Bill was, at that time, in his 50s and Geoff was in his 20s, that Bill would have considered the purchase of The Springs as anything other than a project where he and Geoff would be farming together; and that the alleged conversation is not an unequivocal promise to leave the farm to Geoff where they were otherwise in a business partnership relationship.

62. [466]

    Merilyn and Bruce thus maintain that Geoff’s claim that, from 1984, he had an agreement with Bill which was breached by Bill failing to leave The Springs to him in his Will should be dismissed.

63. [467]

    As to the allegation in the amended statement of claim of the representation made at the time of the acquisition of Hurricane Hill (incorrectly pleaded as being in 2004 but corrected in oral evidence to 2005 − see T 67.30-35), it is noted that the evidence in support of this pleaded representation is the attribution by Geoff to Bill of words to the effect that (Geoff’s affidavit affirmed 30 March 2015 at [30]):

64. [468]

    Merilyn and Bruce note that nothing more is said to have been said on that occasion and that nothing changed in 2004 except for the purchase of Hurricane Hill. It is said that, if anything, this promise only goes to the question whether Hurricane Hill is an asset of the Springs Partnership.

65. [469]

    Merilyn and Bruce say that Geoff’s contention in cross-examination that he omitted to include conversations which detailed the terms of the agreement pleaded in [14] of the amended statement of claim should be rejected (see T.70-10-35). It is noted that Geoff agreed that all that was said to him in 2005 was that “everything can pretty much continue on as it is” (T 71.32-35). It is said that there was no mention, in the evidence of the 2005 conversation, of an agreement to leave The Springs to Geoff in Bill’s final Will, and it is submitted that that is because no such conversation took place. In any event, it is said that the 2005 promise suffers from the same issues as that alleged 1984 promise; in particular, that Jill is not named as a party to any such agreement and the words said to have been spoken do not constitute a basis for the estoppel.

66. [470]

    As to the alleged 2008-2009 representation (that “you can buy us out of our share or inherit it”), it is said that this is consistent with Bill’s consideration of leaving Geoff “a quarter of the value of all my assets” (a matter which Merilyn and Bruce here seem to accept Bill may have discussed with Geoff closer to Bill’s death). It is noted that, in his affidavit in reply, Geoff sets out an additional conversation in which he deposes that Bill said words to the effect that he would “leave [Geoff] my half of The Springs and our partnership”, valuing those at one quarter of the assets (Geoff’s affidavit affirmed 8 December 2015 at [128]). Merilyn and Bruce say that this (belated) conversation is, again, not the kind of representation which, if accepted, would be regarded as being enforceable against Bill’s estate. It is noted that Geoff’s affidavit of 18 October 2018 contains yet further (different) versions of the alleged representations, such as a possible move to Guyra and an expression of disbelief by Geoff to the effect “[w]ould you really leave me your half of The Springs?” (at [45]-[46]). Merilyn and Bruce say that greater particularity, credibility and more reliability would be required before it would be accepted that these family conversations gave rise to enforceable arrangements.

67. [471]

    Merilyn and Bruce submit that the fact that Geoff’s evidence “improved” with every affidavit should point against a finding that in 2009 (when Bill was aged 79 years) he and Geoff entered into a binding agreement that they would farm The Springs together, without their spouses, and with the land being left to Geoff in Bill’s Will. Insofar as Geoff contends that the 2008-09 representation(s) amounted to a new agreement, Merilyn and Bruce point to the pleading in the amended statement of claim, which is to the effect that it was a continuation of the former (1984) agreement. It is said that Geoff’s denials of that continuation of the farming partnership after his divorce and Jill’s death were not particularly credible (T 87.30-35).

68. [472]

    Merilyn and Bruce say that it is telling that the particulars to [19] of the amended statement of claim indicate that the management of the farm would continue as before despite the new partnership. The new details pleaded were the inclusion of the soil consultancy business, a long-term development plan (of which Merilyn and Bruce point out there was little evidence) and the purchase of plant and equipment. Merilyn and Bruce emphasise that this was in the context of a “conventional” farming partnership between father and son, and one which was implemented in the wish that Bill could “die with his boots on”. It is noted that Geoff also pleaded the purchase of his Limousin cows by The Springs Partnership, but that he obtained those cattle in his property settlement with Kaye and that he later contributed them to the new Springs Partnership as a capital contribution (and took $78,750 in cash drawings from the partnership, with the balance of $160,000 recorded as his capital contribution) (see T 89).

69. [473]

    Merilyn and Bruce point to the fact that Geoff told no-one in his family about this alleged arrangement; and that the only person who gives evidence of Geoff mentioning it is Fiona (see the conversation referred to above late in 2013 in which Fiona says she heard Geoff say to Bill “You’ve changed things without telling me. You promised me the farm when we started our new partnership, and now you’re saying I’ll receive a quarter of your assets which is totally different”). Merilyn and Bruce say that, if this conversation between Bill and Geoff did occur, it did not amount to an acknowledgement of the alleged 2008-2009 promise (noting that Bill’s response is said to have been that “you’re overreacting”). Rather, Merilyn and Bruce say that, if this conversation occurred, it should be seen only as part of the conversations happening around Bill’s Will between all members of the family in late 2013-2014. (Pausing here, Sue’s evidence was that as far as she was aware, Merilyn was not partaking in conversations with Bill about his testamentary intentions.)

70. [474]

    Apart from the difficulties to which Merilyn and Bruce point in the quality of the evidence surrounding the alleged representation(s), they say that there are other difficulties in accepting Geoff’s account of the dealings between himself and Bill.

71. [475]

    First, it is said that the evidence demonstrates that Bill and Jill took their testamentary promises seriously, along with the need to keep their testamentary instruments up to date. It is noted that Bill’s 1992 Will left Pindaroi to Geoff (and, as I understand the parties’ submissions, this was mirrored in Jill’s 1992 Will). Bill and Jill executed joint Wills in 1998 on the same day as the settlement of the sale of Pindaroi to Geoff and Kaye. The 1998 Wills reflected the removal of the gift of Pindaroi as an inheritance, given the transfer of that land to Geoff inter vivos. It is noted that Bill’s last Will executed on 14 May 2009 specifically excluded, in the gift to Geoff, any interest of Bill’s in real estate owned by Bill and Geoff.

72. [476]

    It is submitted that the timing of the execution of Bill’s 2009 Will is important, it being executed one month after Geoff and Kaye had sold Pindaroi and two weeks after the formation of the WE & GW Bassett partnership (later known as The Bassett Grazing Co Partnership) on terms which it is pleaded (in [19] of the amended statement of claim) included a promise, in consideration of the matters there pleaded, by Bill to leave his share of The Springs to Geoff in his final Will.

73. [477]

    As noted earlier, Bill made his last Will with the assistance of his long-standing firm of solicitors, Borthwick & Butler. At least two drafts were prepared and Bill had attended the solicitors in person to give instructions. Merilyn and Bruce say that that careful process of putting his testamentary wishes into place undermines the pleaded assertion that, two weeks earlier, Bill had made a considered and binding promise to leave The Springs land and Hurricane Hill to Geoff in his Will.

74. [478]

    It is submitted that it is not plausible that Bill would have said to Geoff, shortly after making his Will, that he had indeed made a new Will “to reflect our agreement that you would leave me your half of The Springs and our partnership, like you said you were going to” (a conversation attributed to Bill which, Merilyn and Bruce emphasise, first appears in Geoff’s affidavit sworn 18 October 2018 at [52]).

75. [479]

    It is said that the careful and deliberative process followed by Bill in executing his final Will is also reflected in the way in which Bill and Jill were careful record-keepers of their business relationship with Geoff; in that they took out mortgages to secure loans and they had formal arrangements with Geoff in relation to their farming partnerships. It is submitted that it is not credible that this important testamentary arrangement went undocumented.

76. [480]

    Second, it is said that Geoff had been told by his parents that he was to inherit Pindaroi. It is noted that that promise was known throughout the family and that the arrangement was accepted by the “non-farming” siblings as being an appropriate arrangement, given that: Pindaroi was the family farm, bought in 1976 by Bill and Jill through The Monowai Partnership and they had employed Geoff for award wages with board and lodging until about 1984; Geoff lived on Pindaroi all of his life until he sold it in 2009; Geoff had purchased a third of Pindaroi (the Woolshed Block) in 1984 for a reduced purchase price and he farmed that land together with his parents who retained the rest of Pindaroi; Geoff had taken over the running of the whole of Pindaroi from 1991 on the basis of what Geoff says was a rent-free arrangement by which he retained all the profits from the land; and Bill and Jill had sold their remaining land on Pindaroi to Geoff and Kaye (on what Merilyn and Bruce describe as heavily discounted terms in 1998; being $200,000 payable over 10 years from a stated consideration of $1,150,000).

77. [481]

    Merilyn and Bruce say that it is significant that none of the other siblings took issue with the early “gift” of Pindaroi to Geoff, at what they say was a significant under-value, until Geoff alleged (by the filing of the statement of claim) that he had been promised Bill’s share of The Springs as well. (Pausing here, this submission is again reflective of a view on the part of Merilyn and Bruce of an entitlement to an inheritance - since it is difficult to see why the siblings should feel in a position to “take issue” with decisions of this kind by their parents as to what their parents could do with their own assets.) It is noted that Geoff agreed that the situation he had with Bill and Jill in relation to The Springs was “very different” from the arrangement he had in relation to Pindaroi (see, for example, T 54-55).

78. [482]

    Third, it is noted that Geoff makes no mention of the alleged promise in any documents, including the very documents that he created in order to discuss The Springs with Bill only weeks before Bill’s death (namely, the Discussion Note of late 2013 and the Options Note of early 2014, to which I have referred above).

79. [483]

    Merilyn and Bruce say that it is telling that nowhere does the Discussion Note mention a promise by Bill that Geoff would be left The Springs. Instead, it is submitted that the Discussion Note reflects a campaign by Geoff to be left The Springs, which they say appears to reflect a conversation Geoff says he had with Bill prior to his death about how Bill may change his Will. It is noted that Geoff said that writing the Discussion Note was “part of my discussions with my father” trying to “hold him to his word” but it is submitted that the Discussion Note is inconsistent with that explanation (T 80.15-25).

80. [484]

    Merilyn and Bruce argue that, had the alleged promise been made, the Discussion Note would have mentioned it. It is said that Geoff’s denial that this was the case (with the explanation that he had already discussed that orally with Bill), is not credible (and nor are the various other explanations as to why the Discussion Note does not include any references to the alleged promise for Geoff to be given The Springs). It is contended that, had there been a promise in relation to The Springs land, the Discussion Note would have made reference to that promise (most likely on the first page where the purchase of The Springs was mentioned or at the end, where Geoff noted that he and Bill were partners, and that Bill’s decisions affected his life).

81. [485]

    As to the Options Note, Merilyn and Bruce emphasise that it does not mention the issue which apparently required the creation of the document (namely, the allegation that Bill had resiled, unconscionably, from a promise to leave Geoff The Springs). It is noted that the Options Note is headed “Bassett Partnership Rearrangement; Options for Consideration” and that it sets out a number of options (none of which compensates Geoff for the pleaded detriment). Merilyn and Bruce point out that Fiona’s evidence of the conversations she heard between Geoff and Bill is that they were not about changing his Will, but about “altering their business arrangements” (T 246.27-30). It is said that the Options Note, by its terms, supports that characterisation of the discussions between Geoff and Bill towards the end of Bill’s life.

82. [486]

    Merilyn and Bruce further say that the Options Note demonstrates that Geoff was, as at January 2014, prepared to walk away from the partnership with Bill without any acknowledgement of any reliance, detriment, or compensation for a broken promise; and that he was prepared to dissolve the partnership in various ways (including, it is said tellingly, Geoff buying The Springs and he and Bill continuing to farm there in partnership).

83. [487]

    Fourth, it is said that Geoff knew, from 2007 when Jill died, that he would not be receiving The Springs in either of his parents’ Wills. It is said that he knew, at least by the time when he saw Jill’s Will, that he was not being left The Springs in her Will but that he did not complain to Bill about that until just before he died (in the Discussion Note). It is noted that Geoff did not raise it at the family meeting after Jill’s funeral, nor it is said did he voice his concerns about it to Bill. Merilyn and Bruce point to Geoff’s acceptance in cross-examination of the proposition that not raising it after Jill’s death was inconsistent with his case of a binding promise from 1984 (T 75.20-76.14).

84. [488]

    Merilyn and Bruce submit that it should be accepted that, at the family meeting after Jill’s funeral, it was discussed that “Geoff got his inheritance early” and that Bill said “[t]he rest of you will have to wait until we pass away. Jill and I consider this to be fair, and we did our Wills the same way” (Bruce’s affidavit sworn 28 September 2015 at [92]). It is said that that statement is entirely consistent with the Wills which Bill and Jill made and that this corroborates the evidence given by Bruce, Merilyn, Edwina and Sue of what was said at the family meeting. It is noted that Sue gave evidence that it would have been “grossly unfair” to leave Geoff more than what Jill and Bill left in their last Wills, because of his having been given Pindaroi at an under-value (T 180.30); and that Merilyn gave evidence that her father’s Will reflected what her parents “had told us they had intended to do” (Merilyn’s affidavit sworn 28 September 2015 at [33]).

85. [489]

    It is submitted by Merilyn and Bruce that the contention by Geoff that he said, after his father’s death, that “Dad had promised me The Springs” should be rejected (T 352.37-42). Merilyn and Bruce say that the highest point of the evidence is a comment by Bill, attributed to him by Sue, that “Geoff probably thought I was leaving it [the Springs land] to him” (T 182-183). It is said that this comment, if accepted, cannot be read as indicative of a promise; but, rather, in the light of the continued family expectation that, in order to make up for the “under-value” sale of Pindaroi, both Jill and Bill would leave the majority of their estates to their three other children (which, it is noted, Bill did, in fact, do).

86. [490]

    It is said that Sue’s evidence was that Bill only began to think about changing his Will very close to the end of his life, when Geoff was seeking to have him change it and he was also being approached by his other children (including, Merilyn and Bruce point out, Sue herself, who sought clarity on whether their mother’s wishes and their father’s 2009 Will would be maintained). It is said that Sue’s recollection of the comment makes it clear that it was not made as an admission of a formal promise, more that she herself had formed a view as to Bill’s thoughts on Geoff’s mindset; that it was something Sue thought about after Bill died, and that she never had any conversations with Bill to the effect that he had made Geoff a promise to that effect. It is said that Bill’s “alleged musings” were actually in the context of “Geoff approaching [Bill] to change his will to leave him a quarter of his estate or a share in The Springs” (T 195.10-15).

87. [491]

    Moreover, it is submitted that Sue’s claim is credibly disputed by three witnesses (Bruce, Merilyn and Edwina) all of whom say that Sue stated to them at a family discussion in July 2014 that Bill did not tell her what changes he might make to his Will in the future. It is said that Sue’s claims must be viewed as most unlikely in this light “and given her expressly stated sympathies for Geoff from that time”.

88. [492]

    Similarly, it is said that Bill’s comments, as reported by Sue, to the effect that “I have to leave Geoff more”, are not indicative of any promise made in 1984, 2005, or 2008-9. It is said rather, that they were comments made in the context of most of the members of the family talking to Bill about their expectations and his testamentary intentions.

89. [493]

    It is submitted that it is not credible that in the context of the evidence given by Geoff that he would not have raised the issue of the promise about The Springs with Bill or his siblings, or have done so in writing at some point; and that the overwhelming evidence is that he did not raise that issue at any time; nor did he raise the issue of the alleged agreement to leave him The Springs in any conversations with his siblings after Bill’s death.

90. [494]

    Fifth, it is said that there is no corroboration from Kaye. It is noted that Geoff said that he discussed the alleged promise with Kaye in 1984 and that Kaye and he had such a strong belief in the alleged promise of The Springs that they included it as a factor in their family law settlement. Merilyn and Bruce say that the Family Court records (which were adduced in evidence during this hearing - see Ex 2) do not support that contention. It is submitted that, if Geoff had received assurance from Bill that he had indeed changed his Will in 2009, then that should have been recorded.

91. [495]

    As noted earlier, Merilyn and Bruce argue (but I do not, for the reasons set out above, accept) that a Jones v Dunkel inference should be drawn from Kaye’s absence from this hearing. It is said that her evidence could have corroborated that of Geoff, and that no explanation has been given for her absence. It is said that Kaye is the only living person who is alleged to have been told about this promise, and she was not called to corroborate her former husband.

92. [496]

    As to reliance, it is noted that Geoff pleads reliance in that he: worked on The Springs from 1984 to 2014; invested further funds in The Springs; supplied, cattle, personal farming plant and equipment from Pindaroi to The Springs; reliant on Bill’s capital to operate The Springs enterprise; and made “in kind contributions”.

93. [497]

    Merilyn and Bruce say that Geoff cannot show that he relied on any promise by Bill. It is said that what was proposed in 1984, was an oral partnership agreement, with the partners receiving an equal share of the profits; and that Geoff indicated that when he entered into The Springs Partnership with Bill, that he expected it to be a project which would probably be “short term”. Reference is made to the following evidence in Geoff’s cross-examination (see T 52.25-30):

94. [498]

    In particular, it is said that Geoff’s evidence demonstrates that he did not rely on any promise (that he would be left The Springs in Bill’s Will). It is said that Geoff acknowledged that he had a love for farming “and that passion got me through the years when we were losing money” (Ex 4, Discussion Note); that Geoff said that he shared his plant and equipment with Bill “the same way he had always shared his plant and equipment with me” (Geoff’s affidavit affirmed 8 December 2015 at [40]); and that Geoff was happy to farm with Bill, and to have a meaningful relationship with him, and did not want to take that away from him. It is said that Geoff benefitted from The Springs as much as Bill did, and that he would have continued farming with him with or without the promise. (Pausing here, I treat this last submission with some caution. In Sidhu v Van Dyke (at [67]-[69]), where the plaintiff at first instance had accepted the proposition that she might have done as she had even without the promise that had been made to her, the High Court was comfortably satisfied by other evidence that as a matter of common sense and “the probabilities of human behaviour” reliance had been established.)

95. [499]

    The submission that Geoff enjoyed and benefitted from farming the Springs and may have done so anyway without the promise does not take into account that the promise (if made) would as a matter of common human experience have contributed to his decision to stay. Relevantly, I note the following passages of evidence (at T 90-91; T 92-93; T 95):

96. [500]

    Merilyn and Bruce also point to Geoff’s oral evidence that “farming partnerships evolve over time and people’s roles change over time. So it’s never exactly the same, it’s always evolving” (T 72.35). It is said that this reflected Geoff’s affidavit evidence that he and Bill “verbally renegotiated our dealings as necessary” (Geoff’s affidavit sworn 8 June 2017 at [717]). Merilyn and Bruce note that Geoff agreed in cross-examination that the arrangement with Pindaroi demonstrated the changeability of farming relationships (T 72.35-73.10). Merilyn and Bruce say that it cannot be said that the relationship of Geoff and Bill in relation to The Springs pointed in any way to the enforceability of any arrangements made verbally between them in 1984, 2004-5, or 2008-9.

97. [501]

    Merilyn and Bruce dispute that Geoff has established he suffered detriment flowing from a change in position in reliance on the alleged promise of The Springs. Merilyn and Bruce submit that Geoff has not established the pleaded detriment on the evidence, namely, that Geoff: was not remunerated for his work on The Springs, “suffering loss of income”, and did not undertake other paid employment; did not expand his consulting business, suffering loss of income; suffered losses as a partner in The Springs Partnership; and suffered losses from continuing in partnership with the deceased rather than liquidating his assets and investing elsewhere.

98. [502]

    Merilyn and Bruce say that the improvements made to Pindaroi cannot constitute detriment suffered by Geoff in relation to the alleged promise of The Springs.

99. [503]

    It is noted that, on the evidence, Geoff farmed The Springs in a conventional farming partnership with Bill; meaning that they each had roles, they shared the profits, they took drawings, and they farmed together. It is said that Geoff had no expectation of being remunerated; and that he would clearly have gone into partnership with Bill without the promise, as the elements of capital gain from The Springs or buying out Bill’s share of The Springs in the short term or beyond that were attractive to him. (Again, this submission seems to run counter to the approach of the High Court to the issue of detriment in Sidhu v Van Dyke – see below.) Merilyn and Bruce say that the evidence demonstrates that Geoff’s expectations, even just before Bill’s death, were that on dissolution of the partnership he would not be entitled to more than an equal share of the land, stock, and assets of the partnership.

100. [504]

     It is noted that Geoff was a 50% partner with Kaye from 1988 in The Springs Partnership and received a half share of the profits of that partnership; and his work on the farm was for his benefit as a partner. The partnership records confirm that The Springs Partnership paid for the farm’s operation, expenditure and contract labour. Bill and Jill engaged their own employees through The Monowai Partnership.

101. [505]

     It is noted that Bill and Jill financed Geoff’s purchase of a 50% share of The Springs land with them in 1985, with loans that they advanced from The Monowai Partnership, and these loans extended over almost two and half decades until 2009. The land was purchased for a consideration of $289,974 in 1985 and Hurricane Hill was added in 2005 for a consideration of $200,000. It is said that the combined land has now an estimated value of between about $3,200,000 and $3,500,000. On this basis, it is said that Geoff’s 50% of the farm has an estimated value of about $1,600,000 to almost $1,800,000 and is a pre-Capital Gains Tax acquisition.

102. [506]

     It is said that much of the history of expenditure and labour recounted by Geoff relates not to The Springs but to Pindaroi. It is submitted that Geoff’s complaints of a detriment by way of his alleged expenditure on the Pindaroi property were well satisfied by the $4,200,000 that he received from the sale of that farm in 2009. Merilyn and Bruce say that these complaints are also dealt with by the evidence of witnesses, including his own, to the effect that Bill viewed Geoff’s expenditure on Pindaroi as his own choice, and for his own benefit, given that Bill and Jill conveyed that land to him upon such favourable terms. It is noted that regular expenditure on property will not qualify as detriment or prejudice (referring to the observations of Young CJ in Eq, as his Honour then was, in Barnes v Alderton at [42]); and to his Honour’s observation (at [52]) that the law allows the disappointment of expectations based on a moral claim on affections, however strong, during the lifetime of the potential testator, that being “a risk which anyone seeking to rely on such a representation necessarily faces”. (Merilyn and Bruce also say that the benefits received by Geoff from his parents during his lifetime, relied upon in defence of his family provision claim, also tend against the alleged detriments asserted by Geoff.)

103. [507]

     Further, Merilyn and Bruce cavil with the proposition that Geoff did not “expand his consulting business”. It is noted that the consulting business did not commence until 2001 in any event; and that Geoff was able to work both Pindaroi and The Springs without it impacting his farming businesses (T 65.15-30). It is said the documents (only produced in the course of the hearing) as to the soil consultancy business do not support the alleged lack of expansion of Geoff’s soil consultancy or that Geoff had been hindered in that work. In particular, it is noted that Geoff did not ever cease his soil consultancy business and that, by his own account, he worked only around 20 hours a week on The Springs, with the balance of his time free to do as he wished. It is said that the documents, when produced, did not demonstrate that Geoff had in fact been hindered in his soil consultancy work; quite the opposite.

104. [508]

     In this regard, it is noted that the draft statements of account for Farm Mojo show that it returned a gross profit for the financial year ending 30 June 2019 of $92,000; and that Geoff agreed that, for the 2020 financial year, he was likely to have received at least $53,000 from his soil consultancy business. Additionally, it is said that Geoff was given significant benefits from Bill. It is said that the evidence shows that Geoff was earning a small amount each year from 2001 to 2009 from his soil consultancy business (referring to the figures in the accounts under the heading “contracting” and “commission”). It is submitted that if the allegation of detriment is to be made out, Geoff would need to show that he suffered a contraction or no expansion in his soil consultancy business after that time; and that he has not done so.

105. [509]

     It is noted that the GW Bassett sole trading financial accounts show an income of $12,890 in consulting income in 2009, increasing to $59,170.37 in 2010, plus $5,862.93 in contracting income, along with a figure for “gain on sale”. Geoff’s consultancy income in that year was $114,000 gross and a net income of $37,072.78. There were some gaps in the documents but it is noted that in 2012, the net profit of the business was around $60,000, and in 2013 it was $71,000. Merilyn and Bruce say that these figures can be compared with Geoff’s current income from what is referred to by Geoff as his “highly successful” soil consultancy (Geoff’s affidavit sworn 8 June 2017 at [559]).

106. [510]

     It is thus submitted that Geoff did not suffer a detriment in farming The Springs in partnership with Bill.

107. [511]

     Insofar as the amended statement of claim pleads “a constructive or resulting trust”, it is submitted by Merilyn and Bruce that there is no basis on the pleadings which would establish an entitlement to a resulting trust (reference being made to Re Vandervell’s Trusts (No 2) [1974] 3 WLR 256; [1974] Ch 269 at 289 in this regard).

108. [512]

     As to the invocation in the pleading of a remedial constructive trust, reference is made by Merilyn and Bruce to the observation by the High Court in Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59 (Baumgartner) that “a constructive trust was a regime imposed to disentangle the property of the parties when their relationship had ended” (and see Heydon and Leeming, Jacobs’ Law of Trusts in Australia (8th ed, 2016, LexisNexis Butterworths) at [13-11]). It is noted that the authors of Jacob’s point out that such a constructive trust is both “the last resort” and discretionary; and, in particular, that a constructive trust will not be ordered where the “degree of wrongdoing” or benefit derived was disproportionate in the circumstances (reference being made to Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296; [2012] FCAFC 6 (Grimaldi v Chameleon Mining) at [510]).

109. [513]

     It is submitted that in this case there is no “unconscionable resiling”; that there was no expectation created; and that Geoff received his inheritance “early” in the transfer of Pindaroi to him (Merilyn and Bruce there citing Sidhu v Van Dyke at [77]; Donis v Donis at [18]-[20]).

110. [514]

     As to the remedy here sought, Merilyn and Bruce say that the transfer of Bill’s interest in The Springs to Geoff, rather than to the residuary beneficiaries, who did not benefit at all from Pindaroi, would be out of proportion to any detriment which may be found to have been suffered. Merilyn and Bruce say that Geoff has not shown that any detriment suffered by him (as a part-owner of The Springs land and partnership, who benefitted from any work done on that land in his own right) “is of a kind and extent that involves life changing decisions with irreversible consequences of a profoundly personal nature … beyond the measure of money and such that the equity raised in the promisor’s conduct can only be accounted for by substantial fulfilment of the assumption upon which [the plaintiff’s] actions were based” (citing Sidhu v Van Dyke at [84]).

111. [515]

     Thus, Merilyn and Bruce submit that the first claim in the amended statement of claim should be dismissed.

112. [516]

     At the end of the hearing on this matter on 27 August 2020, leave was sought (and granted) for Merilyn and Bruce to provide further submissions in response to Geoff’s claim of a constructive trust. Merilyn and Bruce primarily wished to add to their submissions as to the way in which the credit of the parties impacts upon the findings which should be made in relation to the constructive trust pleaded in the amended statement of claim. Pausing here, complaint was made by Geoff’s solicitor that the further written submissions went beyond the scope of the leave that had been granted (that being leave responsive to the request to file a very brief note in relation to the constructive trust issue, to which objection had not been taken) (see T 622.10-37; T 626.42-45); and it was submitted that those further written submissions should be disregarded (citing SZSJA v Minister for Immigration and Border Protection (2013) 308 ALR 266; [2013] FCAFC 158 at [66]-[67]). For present purposes, I simply summarise here the further submissions insofar as I apprehend that they deal with the constructive trust point.

113. [517]

     Reference is made to the observation by Hallen J in Evans v Braddock [2015] NSWSC 249 [at 258] that the elements to establish a claim of constructive trust overlap with those required to establish a claim of equitable estoppel. Merilyn and Bruce say that there is an absence or paucity of evidence put forward by the plaintiff to support a claim of a “shared understanding” as to his inheritance of the deceased’s portion of The Springs (see Q v E Co (2020) 383 ALR 469; [2020] NSWCA 220 at [60] per Meagher JA with whom Leeming and Payne JJA agreed).

114. [518]

     In addition, it is said that the reliance by Geoff upon comments claimed to have been made by Bill many years after the alleged promise of inheritance should not be found to be corroborative. It is noted that Whelan J in Webb v Ryan [2012] VSC 377 at [22] referred to the difficulties in assessing such evidence, stating:

115. [519]

     It is submitted that Geoff has not established there was a joint enterprise based upon a promise he would inherit The Springs, and that his conduct is relevant to his claim, including the contribution of Jill’s property (the subject of certain of the claims in the first cross-claim) to the alleged joint enterprise in 2009. Furthermore, it is said that Geoff did not contribute unequally to the farming relationship with Bill.

116. [520]

     Further, Merilyn and Bruce contend that Geoff has not established the existence of a joint enterprise based on an agreement he would inherit Bill’s share of The Springs, and they repeat their contention that Geoff understood he was required to buy the land or it would be sold. It is said that Geoff has also not established he made unequal contribution to the farm or suffered loss from his farming activities with Bill from 1984. To the contrary, it is said that Geoff bought his half of The Springs with interest-free loans from his parents over 24 years, and that his parents helped him acquire farming land worth about $5 million when he divorced in 2009.

117. [521]

     It is said that since the alleged “promise” in 2009, The Springs has yielded a substantial capital gain to Geoff of about $950,000 (being one half of the difference between the estimated value of the farm of $3.5 million in 2018 and the value of $1.6 million when Geoff and Kaye finalised their divorce in September 2009).

118. [522]

     Furthermore, it is said that the joint enterprise asserted by Geoff in 2009 included property belonging to Jill’s estate, which cannot be said to be held on trust for Geoff’s benefit, and that it was not reasonable of Geoff uncritically to rely on the statements of others about the estate’s administration (citing Reid v Hubbard [2003] VSC 387 at [33] per Nettle J, as his Honour then was).

Determination

1. [523]

   I have referred above to the summary of principles in relation to proprietary estoppel (here pleaded in substance as an estoppel by encouragement not, relevantly, as I discuss below, an estoppel by acquiescence) as outlined in the respective parties’ submissions. The parties did not appear to be in dispute as to those principles but, rather, as to the application of the factual context to those principles.

2. [524]

   The issues that are thus here to be determined as to Geoff’s proprietary estoppel claim (and adopting the analytical framework applied in E Co v Q) are as follows: first, as to whether the alleged oral representations were made (noting, as I did in E Co v Q (at [948]-[962]), that the weight of appellate opinion is that there are less stringent certainty requirements for proprietary estoppel than, say, for promissory estoppel); second, whether there was reliance on the alleged representations (and whether, particularly noting that the alleged representation was a testamentary assurance, any such reliance was reasonable given Geoff’s admitted awareness of the notion of freedom of testation and the inherent revocability of wills); third, whether Geoff has suffered, or will suffer if there is departure from the induced expectation or assumption, detriment in reliance on the representations; fourth, whether it would be unconscionable for there to be a departure from the representations (and to the extent that the case is put on the basis of the creation of an expectation, the knowledge required on the part of the person in the position of Bill as to that expectation – see Macfarlan JA’s analysis in Priestley v Priestley [2017] NSWCA 155); and finally, if detrimental reliance be established, the question of relief (including the issue of proportionality).

3. [525]

   I adverted above to the fact that the case as pleaded does not appear to be a case of estoppel by acquiescence or standing by; as to which, I refer to the distinction recognised in Australian law between proprietary estoppel by encouragement and proprietary estoppel by acquiescence or standing by (see Milling v Hardie at [50]-[52] per Macfarlan JA with whom Beazley P, as her Excellency then was, agreed); Sidhu v Van Dyke at [2]; [77]; Priestley v Priestley at [7]-[8]; Heydon, Leeming, Turner, Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (5th ed, 2015, LexisNexis Butterworths) (MGL) at [17-100]).

4. [526]

   Although (subject to one qualification) the evidence as it emerged might have supported a claim based on the principles of estoppel by acquiescence (i.e., that Bill stood by with knowledge of Geoff’s expectation or assumption as to Bill’s testamentary promise), the case was not pleaded (nor was it conducted) as such; and, as noted earlier, both sides were insistent that the other adhere to the pleaded case. Rather, as I understand the references by Geoff’s Senior Counsel to estoppel by expectation, that expectation is said to have been one arising from the alleged representation(s). The qualification to which I refer above is that there is authority that suggests that in an estoppel by acquiescence case the assumption must be a mistake of present fact, as distinct from a belief as to the future or an incorrect prediction, which may explain the fact that the case is one limited in the pleading to an estoppel by representation. In any event, it is not necessary here to enter into the debate (referred to in E Co v Q see at [923]) as to the ambit of a claim in estoppel by acquiescence being confined to assumptions concerning presently existing rights (see Ben Macfarlane, The Law of Proprietary Estoppel (2014, Oxford University Press) at [2.14]-[2.25]; Feltham et al, Spencer Bower: Reliance-Based Estoppel (5th ed, 2017, Bloomsbury) at [12.18]-[12.19]) (interesting as that debate may be).

5. [527]

   I also note at the outset that, although the estoppel by representation claim is predicated on representations alleged to have formed the so-called Springs agreement, no claim based on any contractual obligation in relation to Bill’s alleged testamentary promises arises, so that it is not necessary to consider the issues arising where it is alleged that there was a binding agreement entered into in a family or non-commercial context (as discussed in Ashton v Pratt to which I have referred above and as considered in Moore v Aubusson [2020] NSWSC 1466).

6. [528]

   I turn first to the issue as to whether Geoff has established the making of the alleged representations, i.e., whether he has established to the requisite certainty that Bill represented to him that he, Geoff, would inherit the balance of The Springs in Bill’s final Will (or Bill’s and Jill’s Wills, to the extent that the representations alleged were made before Jill’s death).

7. [529]

   For an estoppel by representation, it is necessary that the language upon which it be founded be “precise and unambiguous”, though this “does not necessarily mean that the language must be such that it cannot possibly be open to different constructions”; rather, “it must be such as will be reasonably understood in a particular sense by the person to whom it was addressed” (Low v Bouverie [1891] 3 Ch 82 at 106 per Bowen LJ; see similarly at 113 per Kay LJ). The relevant assurances need not depend on the words of a single conversation but can arise from conduct over a period of time (Evans v Evans [2011] NSWCA 92 at [107] per Campbell JA (with whom Giles JA and Sackville AJA agreed)); and silence may also serve as “the element of assurance” (Thorner v Major at [55] per Walker LJ).

8. [530]

   It has been noted that drawing a conclusion as to the adequacy of the alleged representation or promise requires “careful identification of the nature of the assumption by the plaintiff” and that the alleged representation or promise is to be assessed by reference to the circumstances of each case (see Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105 (Doueihi) at [186], citing Commonwealth of Australia v Verwayen (1990) 170 CLR 394; [1990] HCA 39 at 445; see also, Thorner v Major at [56]).

9. [531]

   It is helpful here again to note what was said in Flinn v Flinn [1999] 3 VR 712; VSCA 109 at [80] and [95] by Brooking JA (with whom Charles and Batt JJA agreed) (passages cited approvingly in a number of subsequent cases – see, for example, Delaforce v Simpson-Cook at [55]; Evans v Evans at [121]; DHJPM Pty Ltd v Blackthorn Resources Ltd (2011) 83 NSWLR 728; [2011] NSWCA 348 (DHJPM) at [54]; Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 333 ALR 384; [2015] HCA 26 (Crown Melbourne) at [215] per Nettle J; cf [159] per Keane J), namely that:

10. [532]

    In Evans v Evans (at [116]) Campbell JA (with whom Giles JA and Sackville AJA agreed) in effect accepted that the precise content of the assumption and expected arrangements flowing from the relevant representation or promise need not always be susceptible to precise legal analysis. The representation or promise is sufficiently clear “if it is reasonable for the representee to have interpreted the representation in a particular way being a meaning which it is clearly capable of bearing and upon which it is reasonable for the representee to rely” (see Galaxidis v Galaxidis [2004] NSWCA 111 at [93] per Tobias JA (with whom Giles JA agreed)); and see Sullivan v Sullivan at [85] per Hodgson JA (with whom McColl JA agreed) (cited with apparent approval in Evans v Evans at [124]; Doueihi at [187]; Crown Melbourne at [147]-[148]).

11. [533]

    A distinction has sometimes been drawn between arms-length/commercial cases and domestic/family cases when assessing the adequacy of an assurance or the reasonableness of an expectation or assumption (see, for example, DHJPM at [104]-[105] per Handley AJA; Cobbe v Yeoman’s Row Management Ltd [2008] 1 WLR 1752 at [68] per Lord Walker). However, the distinction is neither “universal or infinite” and care should be exercised in the use of such “shorthand labels” (Doueihi at [178] per Gleeson JA (with whom Beazley P, as her Excellency then was, and Leeming JA agreed).

12. [534]

    In the present case, as adverted to above, by the time of the hearing Geoff did not focus on the representations allegedly made prior to 2008/2009. Thus, it is not necessary to say more than that I would not have accepted that the evidence established, on the balance of probabilities, the making of such representations in 1984 or 2005. Geoff’s account of the relevant conversations at that time is not corroborated by any contemporaneous objective evidence. In his original statement of claim, the agreement is pleaded by reference to matters that only arose much later. Geoff pleaded, for example, that the oral agreement in 1984 included a term not to undertake a soil consultancy business (at [14(v)], yet in cross-examination Geoff agreed he did not start his consultancy business until “2001 or so” (at T 43.21-26). Further, Geoff originally pleaded it was a term of the agreement that he would sell his best Limousin cows to contribute to The Springs Partnership (statement of claim at [14(vi)]) but, on any view of things, this did not arise until 2009 (see T 43.27-35)).

13. [535]

    As noted earlier, the terms of the alleged agreement as pleaded are not reflected in conversations to which he had deposed (see, for example, at T 49) and appeared in parts to be his assumption as to what he would do in relation to the family business. However, I do not regard this as necessarily fatal to the claim based on representations alleged to have been made in 2009 even though pleaded as a contention of the earlier agreement.

14. [536]

    As to the alleged representation made during the period from December 2008 through to early 2009, it is readily understandable that Geoff and Bill would have had discussions about the future of the farms and farming partnerships in light of the breakdown of Geoff and Kaye’s marriage. Nevertheless, the difficulty I have is that the making of Bill’s Will in 2009 (which was clearly carried out in a considered way, since there were at least two drafts and attendance on his solicitors for that purpose) is inconsistent with the making by him shortly before that time of any binding promise or representation of the kind here alleged. Further to this, I note that it is not suggested that Bill was not a man of his word or somehow untrustworthy, so it is difficult to accept that he would have made the promise or representation and then deliberately acted to the contrary of it within such a short time.

15. [537]

    Moreover, the 2009 Will is consistent with the discussion that I accept took place at the family meeting after Jill’s funeral (23 March 2007) to the effect that Bill and Jill’s 1998 Wills had been structured on the basis that Pindaroi was Geoff’s early inheritance and the siblings would share the residuary estate (which would include The Springs) as their inheritance. It is also consistent with the alleged conversations about the value of Jill’s share of The Springs when Bill obtained the siblings’ agreement to transfer their interest in Jill’s share to him so that he could continue to farm The Springs (i.e., that The Springs would all come back to the residuary beneficiaries anyway).

16. [538]

    The highest point of the evidence in favour of Geoff’s contention that the representations were made to him is the combination of Fiona’s evidence (which I accept as credible) as to the conversations that she overheard between Geoff and Bill in November 2013 and Sue’s evidence (which, on this aspect, I also accept as credible) as to her conversation with Bill in which he acknowledged that Geoff “probably thought” that Bill would leave him his share of The Springs and that he would have to change his Will (or was contemplating changing his Will). Those conversations make credible the evidence that Bill was contemplating in late 2013 either that he would leave his share of The Springs to Geoff or that he would leave 25% of his estate to Geoff (the latter course being consistent with Bill expecting that Geoff would then be in a position to buy out his siblings’ interest in The Springs so as to be able to continue farming thereon).

17. [539]

    Moreover, the weight placed by Merilyn and Bruce on the “very public” and accepted (within the family) promise to leave Pindaroi to Geoff, compared with the lack of similar transparency around The Springs, to indicate the unlikelihood of such a promise (see T 7.27-38) suffers to my mind from the fact that (by late 2013), on a number of accounts, Bill was not happy at being pressured in relation to his testamentary intentions (see Sue and Geoff’s accounts). It is by no means implausible that if Bill was indeed proposing to change his Will he would not invite further badgering from Bruce by telling him about it.

18. [540]

    However, the difficulty I have with Bill’s conversations about changing his Will is that they took place in late 2013 (not in 2009) and it is not clear that Bill had accepted in terms that he had made any promise or representation in 2009. Rather, the conversations are consistent with Bill considering his testamentary intentions afresh in late 2013. Moreover, the making of representations in 2009 is not consistent with the evidence of conversations in 2012 concerning Geoff’s ability to pay out his siblings’ share of The Springs (which he would not have needed to do had he been relying on representations or an agreement made back in 2009). It is also inconsistent with the absence of any reference to such a promise in the Discussion Note or Options Note. I accept that Geoff may not have wished to confront his father in writing those documents (and I note that he described his father as someone not to be “harped on” at); and that Geoff may have been putting the Discussion Note forward (and contemplating the options in the Options Note) as a way to resolve the issue (without departing from his firm belief that promises had in fact been made to him). However, it means that there is no objective documentary evidence to support his case of promises having been made in 2008/2009; and the case, as pleaded, does not turn on any promise made in late 2013 (nor does the evidence support a promise with the requisite certainty at that stage).

19. [541]

    Accordingly, while I remain of the view that the conversation to which Sue has deposed in December 2013 is a significant conversation (and I will return to this in my consideration of the family provision claim), the inconsistency between the alleged representations and both Bill’s and Geoff’s subsequent conduct (coupled with the caution needed in scrutinising evidence of conversations with deceased persons years after the relevant events) means that I am unable to reach the necessary state of persuasion in order to accept that the alleged representations were made in 2009.

20. [542]

    While that conclusion of itself is fatal to the proprietary estoppel claim, it is necessary (in the event that I be found wrong on this issue) for me briefly to consider the remaining elements of the proprietary estoppel claim and to make clear what conclusions I would have reached.

21. [543]

    Had I concluded that the alleged representations been established, then I would have found that there had been reliance by Geoff on those representations.

22. [544]

    As noted in E Co v Q (at [1035]-[1072]), the test for reliance has been variously expressed: on the one hand, that the plaintiff (i.e., here, Geoff) must show that he or she “would have acted differently” but for the assumption or expectation (see Sidhu v Van Dyke at [91] per Gageler J; Stone v Stone (2014) 17 BPR 33,443; [2014] NSWSC 1655 at [46] per Darke J; Miller Heiman Pty Ltd v Sales Principles Pty Ltd (2017) 94 NSWLR 500; [2017] NSWCA 106 at [49] per Macfarlan JA (with whom McColl JA and Sackville AJA agreed); Priestley v Priestley at [16] per Macfarlan JA); and, on the other hand, whether the promise or representation was “a contributing cause” or “influenced” the plaintiff’s action (see Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) (2015) 329 ALR 1; [2015] FCA 825 at [770]-[779] per Edelman J; Priestley v Priestley at [138] per Emmett AJA (with whom McColl JA agreed); K Handley, “Recent Cases” (2017) 91 Australian Law Journal 812). However, on either formulation of the test I consider that the same result would here be reached.

23. [545]

    I consider that it is clear from Geoff’s Options Note (formulated once, on any view of things, he had realised that Bill had not in his current Will left his share of The Springs to Geoff) that, had the alleged representations been made to him in 2009 but Bill had made clear at that time that he considered himself free to depart from those representations at any time in the future, then Geoff would have acted differently; and that the representations would have been a contributing cause or one that influenced Geoff’s actions. I form this view bearing in mind that: (i) in 2009, Geoff was at a critical juncture in his personal life and that he had the option of pursuing his consultancy business more intensively had he chosen not to remain farming on The Springs and (ii) in relation to Pindaroi, Geoff formed the view that it was too great a risk to rely on testamentary promises and continue to invest in the property and so pressed his parents for a sale to him of their share at that time.

24. [546]

    Therefore, I would have found that the element of reliance was made out; and I would have found that the reliance was reasonable, notwithstanding Geoff’s understanding as to the revocability of wills, due to the trust obviously placed by Geoff in his father’s word (trust that none of his siblings suggested would be misplaced having regard to their father’s character).

25. [547]

    As to the question of detriment, although questions of reliance and detriment are distinct, they are interwoven; it has been said to be clear that “[t]here can be no real detriment if the party asserting the estoppel would have been in the same position in any event” (Sidhu v Van Dyke at [92] per Gageler J; Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641; [1937] HCA 58 at 674 per Dixon J). In the present case it was suggested by Merilyn and Bruce that Geoff would have carried on farming at The Springs in any event in part because he loved farming there with his father. I note that this is inconsistent with the suggestion in the evidence of Edwina that Geoff would be looking to sell The Springs if he were now to inherit it – and to the concerns apparently expressed to Bill to that effect by Sue in the “conning you” conversation.

26. [548]

    It is recognised that it is the element of detrimental reliance which makes an estoppel enforceable (Sullivan v Sullivan at [18]). Further, the High Court has made clear there is no presumption of detriment; and that whether detriment has been suffered (or will be suffered) must be established on the balance of probabilities (see Sidhu v Van Dyke at [50], [61] per French CJ, Kiefel, Bell and Keane JJ). That said, the concept of detriment in the context of proprietary estoppel is neither narrow nor technical (Donis v Donis at [20]).

27. [549]

    The question of detriment is assessed as at the time a party seeks to depart from the assumption or expectation (DHJPM at [72] per Meagher JA (with whom Macfarlan JA agreed)). Consequently, here, it is to be assessed at the time of Bill’s death (which is when his departure from the – on this hypothesis – representations took effect).

28. [550]

    As made clear in Sidhu v Van Dyke, detriment may be of a kind and extent that involves “life-changing decisions with irreversible consequences of a profoundly personal nature” (at [84], the plurality citing Donis v Donis at [34]).

29. [551]

    Insofar as it is suggested that Geoff financially benefitted from his participation in the farming of The Springs (the suggestion being that there was therefore no detrimental reliance) and has conducted his agricultural consultancy business throughout the time he was farming The Springs, it is important to bear in mind (as noted in E Co v Q at [1166]) that equity’s intervention is not premised on the outcome of some accounting of the benefits obtained and the detriment sustained by each party (i.e., the existence of an equity of the kind here claimed by Geoff does not turn on an analysis of comparative financial position). Nor, it must be said, does it depend on abstract, idiosyncratic notions of fairness. It has thus been said that detrimental reliance “need not constitute, in any sense, a consideration moving to the party bound” (Sullivan v Sullivan at [20]; Delaforce v Simpson-Cook at [56]).

30. [552]

    Had I been satisfied to the requisite degree that the alleged representations were made in 2008/2009, then I would have found that the decision not to leave The Springs or to pursue his consultancy business full time, but instead to pursue the farming of The Springs in partnership with Bill, did amount to a sufficiently life-changing decision which had an impact (albeit one that cannot be precisely measured) on the development of the agricultural consultancy business so as to amount to detrimental reliance in the requisite sense.

31. [553]

    Therefore, here, on the assumption that the representations had been made out, I consider that the evidence permits the conclusion that life-changing decisions were made, and that Geoff did not pursue other avenues that were available to him, in reliance on the expectation engendered in him that Bill would leave The Springs to him on his death and hence, detrimental reliance would have been established. As indicated above, if the relevant counter-factual were to have been put at the relevant time, then Geoff’s response, in circumstances where he would have been in a position to develop business interests of his own and could have realised his interest in The Springs at that point, seems to me (consistent with the Options Note) to have sought a resolution back in 2009 to the ownership issue (which would surely have precipitated only one of two outcomes – a sale of The Springs or an arrangement that more securely protected Geoff’s interests).

32. [554]

    Applying the tests articulated in Sidhu v Van Dyke, I would have concluded that Geoff was induced to rely on the testamentary representations in the sense of this being a contributing cause to his decision to remain farming The Springs in partnership with Bill, as he did, and to limit his pursuit of the agricultural consultancy business opportunities. As a matter of common sense and the likelihood as “a matter of the probabilities of human behaviour”, I consider that it could comfortably be concluded that there was detrimental reliance on that expectation in the sense explained in Sidhu v Van Dyke (and in Donis v Donis).

33. [555]

    As to the fourth of the issues identified above, namely, whether it would be unconscionable for the maker of the representation (or, in this case, the executors of Bill’s estate) to depart therefrom, it has been noted (and I accept) that “unconscionability” does not exist at large and that it is not a “triable issue” as such (see MGL at [17-040] and the authorities cited therein; Kenneth Handley, Estoppel by Conduct and Election (2nd ed, 2016, Sweet & Maxwell) at [1-027]-[1-032]).

34. [556]

    In Priestley v Priestley, Emmett AJA (at [124]) approached the matter on the basis that the extent to which it was unconscionable for the maker of the relevant testamentary representation in that case to resile therefrom could be gauged by considering the likely response by the representee or promisee if told at the time that the Will might be revoked at any time (or that the promisor regarded himself as free to revoke the relevant Will at any time if he wished).

35. [557]

    In the present case, had the earlier elements been made out I would have concluded that it was unconscionable for Bill to resile from the (on this hypothesis; established and detrimentally relied upon) representations in relation to the making of his final Will.

36. [558]

    Finally, as to the question of relief, estoppel by encouragement vindicates a plaintiff’s expectations when a defendant seeks unconscionably to resile from an expectation that he or she has created (Sidhu v Van Dyke at [77]). The prima facie relief in a case of proprietary estoppel is therefore to make good the representation on which there has been detrimental reliance (see Giumelli v Giumelli). Relief is not to be measured by “weighing detriment too minutely in order that it be converted into some equivalent of cash or kind, as if one were measuring the consideration for a commercial bargain” (Delaforce v Simpson-Cook at [3]); and “proprietary estoppel is not a case of quid pro quo” (McNab v Graham (2017) 53 VR 311; [2017] VSCA 352 (McNab v Graham) at [114(3)], Tate JA there citing with approval the analysis of Nettle JA, as his Honour then was, in Donis v Donis at [56]).

37. [559]

    As to the question of proportionality (raised by Merilyn and Bruce), this principle will be applicable in the present case only if “proprietary relief” is “out of all proportion” to the detriment (Priestley v Priestley at [164]). McNab v Graham (at [102]; [107]; [108]) confirms that, generally speaking and subject to consideration of all the relevant circumstances (as to which, see the discussion in Giumelli v Giumelli and Delaforce v Simpson-Cook):

38. [560]

    Had I been persuaded of the earlier elements of the proprietary estoppel claim, I would have concluded that it was not out of all proportion to the detrimental reliance for Bill’s estate to be held good to the testamentary promise and hence for the relief sought by Geoff in relation to the transfer of the remaining interest in The Springs to be granted.

39. [561]

    At [24] of the amended statement of claim, Geoff appears to invoke a common intention constructive trust claim; at [25], a joint enterprise constructive trust claim. It is not clear whether those claims were ultimately pressed. (Despite the header to this section of the amended statement of claim, no claim as to a resulting trust was pleaded.) As noted in the submissions for Merilyn and Bruce, the prayer for relief at prayer 3 seems to invoke a remedial (cf institutional constructive trust).

40. [562]

    Lest the common intention constructive trust claim or joint enterprise constructive trust claim be pursued, I briefly say the following.

41. [563]

    The so-called common intention constructive trust, arises in the circumstances described by White J (as his Honour then was) in Shepherd v Doolan [2005] NSWSC 42 (Shepherd v Doolan) at [31], namely where equity intervenes “to prevent the unconscientious denial by the legal owner of another party’s rights … where the parties agreed, or it was their common intention, that the claimant should have an interest in the property owned by the other, and the claimant acted to his or her detriment on the basis of that agreement or common intention”.

42. [564]

    It is not necessary for a common intention constructive trust that the common intention is that the parties have a specific share of the property; it is sufficient that they intend that the claimant should have a beneficial interest or “some form of proprietary interest” (Shepherd v Doolan at [36]). A less stringent test to the question of detriment has been said to apply once the common intention has been established – see Shepherd v Doolan at [40], where his Honour noted that, in Green v Green (1989) 17 NSWLR 343 at 357 Gleeson CJ (with whom Priestley JA agreed) approved the test appearing in the judgment of Sir Nicolas Browne-Wilkinson VC in Grant v Edwards [1986] Ch 638 at 657 that:

43. [565]

    Moreover, a common intention constructive trust may arise after the acquisition of the property in question if the evidence establishes that the relevant common intention was formed at some later time. The nature of the common intention may also change from time to time but that change will not be established merely from proof of proportionate changes in the contributions made by the parties.

44. [566]

    This claim (if it be pressed) fails in the present case because I am not persuaded that Geoff has established that there was at any relevant time a common intention based on the alleged representations.

45. [567]

    As to any claim based on a “joint enterprise” which failed, it appears that this seeks to invoke the so-called “joint endeavour” constructive trust of the kind described in Shepherd v Doolan at [32]-[33], by reference to the judgment of Mason CJ, Wilson and Deane JJ in Baumgartner at 148, namely, where equity intervenes to restore to a party “contributions which he or she has made to a joint endeavour which fails when the contributions have been made in circumstances in which it was not intended that the other party should enjoy them”.

46. [568]

    For such a constructive trust to arise, it must be shown (see West v Mead (2003) 13 BPR 24,431; [2003] NSWSC 161 at [59]) that there was a joint endeavour between the parties, in which expenditure is shared for the common benefit, and the scope of that joint endeavour must be identified. It is noted that the imposition of such a trust does not depend on the actual or presumed intention of the putative trustee to hold the property on trust (see Shepherd v Doolan at [33]). Rather, if, “within the scope of the joint endeavour which lasts for years, an asset is acquired, as a result of contributions both parties have made, and for a purpose of the ongoing joint endeavour of the parties, this gives rise to the presumption that the beneficial interest ought be shared equally” which presumption can be displaced if it is shown that “the contributions, both financial and non-financial, to that asset should be regarded as unequal” (West v Mead at [59]). The kinds of contributions examined in such a context were considered in Sivritas v Sivritas (2008) 23 VR 349; [2008] VSC 374 at [132] by Kyrou J (and see also Nolan v Nolan [2015] QCA 199 at [61]). In Muschinski v Dodds at 618, Deane J noted that in circumstances where “money or other property is paid or applied on the basis of some consensual joint relationship or endeavour which fails without attributable blame, it will often be inappropriate simply to draw a line leaving assets and liabilities to be borne according to where they may prima facie lie, as a matter of law, at the time of the failure.”

47. [569]

    Here, it seems to me that the invocation of a failure of joint enterprise is not apt to respond to the facts of the present case. True it is, that there was a joint enterprise between Bill and Geoff – that is evident, if from nothing else, from the fact that they were farming The Springs together over many years in a succession of partnerships. That joint enterprise did not “fail” (with or without any “attributable blame”) in any real sense. Rather, it simply (and necessarily) came to an end when Bill died. I cannot see that it is unconscionable for Bill’s estate in those circumstances to retain the benefits of his share of the joint enterprise or joint endeavour. The question is as to whether there was any equity in favour of Geoff arising from the alleged representations that Bill would leave his share of The Springs to Geoff; not that it was appropriate in some way for Bill’s estate to account for the benefit of the long-term farming partnerships between father and son or to even up the contributions thereto.

48. [570]

    Hence, to the extent that any such claim is here pressed (and I do not understand that it was pressed), in my view it would fail even if the alleged representations had been made good.

49. [571]

    For the above reasons, I have concluded that the proprietary estoppel claim should be dismissed.

First cross-claim

1. [572]

   I turn now to the first cross-claim which, as adverted to above, relates to Jill’s estate and the administration of that estate by her executors, Geoff and Bill. Merilyn and Bruce were granted leave to file the first cross-claim on the basis set out in [5]-[14] of the first cross-claim (in essence that being the contention that they are the only residuary beneficiaries of Jill’s estate not affected by a conflict of interest in bringing a claim on behalf of Jill’s estate as against Geoff and as against Bill’s estate.

2. [573]

   The first cross-claim seeks a variety of relief.

3. [574]

   Prayers 1 and 2, respectively, relate to the representation of Jill’s estate by Merilyn and Bruce for the purposes of the bringing of the cross-claims and that Sue represent Bill’s estate for the purposes of the first cross-claim. Those have already been dealt with by the orders made by Pembroke J and do not need here to be further considered.

4. [575]

   The relief sought by prayers 3-6 (and the consequential relief sought by way of the claim in prayer 7 for interest) rests on allegations of maladministration of Jill’s estate by Bill and Geoff – as pleaded in each of Claims 1-10 in the first cross-claim. (The claims are summarised in Table F of the Loneragan Report at Ex 6.)

5. [576]

   It is alleged that assets which ought to have formed part of Jill’s estate were not got in and dealt with by the executors in accordance with Jill’s Will ([5](i)] of the first cross-claim) and/or came into the hands of the executors but were not properly conveyed to the residuary beneficiaries of Jill’s estate in accordance with the terms of her Will ([5](ii)] of the first cross-claim). The relief sought in that regard is as follows: an order that Geoff transfer or convey to Merilyn and Bruce the assets which are the subject of the first cross-claim “as assets or property, or the traceable proceeds of assets or property” of Jill’s estate (prayer 3); further, or in the alternative, an order that Geoff pay damages and/or equitable damages to Merilyn and Bruce to be received and held by them on behalf of Jill’s estate (prayer 4); a similar order to that sought in prayer 3 as against Sue (prayer 5); and an order, further and in the alternative, that Sue pay damages or equitable damages but not exceeding the value of the estate of Bill in the hands of Sue (prayer 6).

6. [577]

   Mr Hodge QC, appearing for Geoff, raised in opening submissions some uncertainty as to the case which was being put against Geoff in the amended pleading of the first cross-claim (see T 4.3-T5.6; T 14.18-T 15.49) and foreshadowed that, depending on how the claims by Merilyn and Bruce were put, it may have been necessary to amend Geoff’s defence to plead a limitation issue (T 4.17-23). In this context, Ms Needham SC, appearing for Merilyn and Bruce, identified that the various claims made in the first cross-claim were to the effect that Geoff breached his “executorial duties” (T 11.13) and made clear that these were contended to be claims falling within s 47(1)(c) of the Limitation Act 1969 (NSW) (T 16.1-12).

7. [578]

   There was reference (see at [102]-[108] of the opening submissions for Merilyn and Bruce and similarly at [159] of their closing submissions) to, inter alia, the first limb of Barnes v Addy (1874) LR 9 Ch App 244 (Barnes v Addy), Fistar v Riverwood Legion and Community Club Ltd [2016] NSWCA 81 (Fistar) and s 55 of the Limitation Act. As I understand it, Merilyn and Bruce accept that their claims on behalf of Jill’s estate are only those claims which satisfy the terms of s 47(1)(c) of the Limitation Act (i.e., a claim for recovery of trust property or property into which trust property can be traced); and that reliance is placed on the above authorities simply for the proposition that a knowing recipient of trust property may be held to hold that property as a constructive trustee. However, a claim of knowing receipt of trust property is not pleaded in terms (as I understand was conceded on the first day of the hearing by Ms Needham SC); and, similarly, a claim for fraud or breach of trust was also disavowed (see at T 12.6-9; T 16.4).

8. [579]

   Accordingly, for Geoff it is said (and I accept) that each of the ten claims in the first cross-claim is maintainable against him only to the extent that Merilyn and Bruce can show that he (Geoff) is in possession of trust property or property into which that trust property can be traced. The significance of this is that it is said for Geoff that, even on Merilyn and Bruce’s own evidence, there is no suggestion that the property which is the subject of Claims 4-9 (or the traceable proceeds from that property) is, or ever was, in Geoff’s possession; rather, those assets have been retained by Bill’s estate (being assets which Geoff notes Merilyn and Bruce will now receive in any event as they, together with Sue, are entitled to the residue of Bill’s estate – subject, I would interpose to note, to Geoff’s family provision claim). On that basis, Geoff says (and I agree) that Claims 4-9 of the first cross-claim (so far as they are advanced against him) do not fall within the scope of s 47(1)(c) of the Limitation Act and cannot be pressed against him (leaving the only potential claims as Claims 1-3 and 10. Nevertheless, Geoff has made submissions as to the merit of those claims (which I consider in due course).

9. [580]

   Broadly speaking, Geoff’s overall response to the first cross-claim, apart from the contention that Claims 4-9 are statute barred against him, is that the entire first cross-claim is misconceived because no attempt has been made by Merilyn and Bruce to determine the actual net residue of Jill’s estate and whether, given that all of the payments to Jill’s estate in respect of the assets constituting that residue were coming from Bill, in fact Bill paid the correct amount of funds in Jill’s estate bank account for distribution to the residuary beneficiaries.

10. [581]

    Geoff contends that the evidence establishes that Bill deliberately paid more into the estate bank account than constituted the residue of the estate and that he intended to gift additional money to his children. Merilyn and Bruce’s response to this last point seems to be that any such “gift” by Bill should be regarded as additional to that which they say they should have received from Jill’s estate. One difficulty I have with their response is that, so far as their claim is that there was a loss suffered by Jill’s estate by reason of the non-recovery of particular amounts, there can have been no loss if an equivalent amount was paid into Jill’s estate by Bill (of his own volition) (as Geoff says the evidence demonstrates it was) and was then available for distribution (and in fact distributed) to Jill’s residuary beneficiaries. (Merilyn and Bruce’s position seems to be rooted in the belief held, at least by Bruce, that Geoff has received more favourable treatment than the other siblings over the course of their parents’ lifetimes – an unedifying example of sibling rivalry, one might be forgiven for thinking.)

11. [582]

    As to the particular claims, in summary, Geoff’s response is as follows.

12. [583]

    Claim 1 is said to be untenable because it is the subject of a deed of forgiveness (and the plea of unconscionable conduct in reply cannot be made out).

13. [584]

    Claims 2-3 and 6-8 (and Claim 9, on the way that it is said that Merilyn and Bruce incorrectly frame that claim), are said to be conceptually misconceived because they are concerned with Jill’s interest in two partnerships but do not adopt the correct approach (that being, it is said, to determine the value of any debt due to Jill’s estate in accordance with the Partnership Act 1892 (NSW) (Partnership Act) and whether the amount of those debts has been discharged by the payments into the estate’s bank account) and it is said that the valuation evidence does not support Claim 2.

14. [585]

    Claim 4 is said to fail because, on the evidence, Hurricane Hill was not a partnership asset.

15. [586]

    Claim 5 is said to be misconceived because the one-quarter interest in The Springs was transferred in specie to Sue, Bruce and Merilyn and the relevant transaction was between those three siblings and Bill.

16. [587]

    Claims 6 and 7 are said to depend upon the partnership books of account and tax returns correctly recording the legal title to the relevant assets (and it is contended that, based on the evidence of Mr Carrigan, who prepared those documents, it is not possible to make any finding as to legal title based on those documents).

17. [588]

    Claims 8 and 9 are said to be unsustainable because in fact Geoff was entitled to a one-quarter share of the proceeds of these lots (and hence it is said that Sue, Bruce and Merilyn have been overpaid if each has received one-third of the proceeds). Further, Claim 9 is said to be unsustainable because it requires valuation evidence (of which Geoff says there is none).

18. [589]

    Claim 10 is said to be unsustainable for three reasons: first, that Geoff was entitled to one-quarter of the proceeds of the lots that are the subject of Claims 8 and 9, so in fact he has been underpaid rather than overpaid; second, that the evidence is that Bill contributed more into the estate bank account than was required for the residue of the estate and the additional amounts paid out were therefore gifts (and intended by Bill to be gifts) and that how Bill chose to distribute any additional funds was a matter for him; and, third, that the part of that claim concerning the alleged $25,000 payment is misconceived as it concerns real property that was transferred out of the estate in specie and then sold back to Bill.

19. [590]

    In Geoff’s defence to the first cross-claim, in the event that he is (contrary to his primary submissions) liable to Merilyn and Bruce in any amount, he pleads in the alternative the following defences: a claim for contribution between joint and several tortfeasors (as between himself and Bill); that any defaults or breaches of trust were not acts of wilful default and occurred in circumstances where he acted honestly and reasonably and for which he ought fairly to be excused (seeking an order pursuant to s 85 of the Trustee Act 1925 (NSW) to relieve him from personal liability); and laches.

20. [591]

    Before turning to the particular claims in the first cross-claim, it is convenient here to note the principles invoked by Merilyn and Bruce as to the liability of executors, as to which (other than insofar as it raises an issue as to the adequacy of the pleading to raise such an issue) there seems to be no dispute.

21. [592]

    Merilyn and Bruce note that an executor is liable as a fiduciary, with fiduciary duties akin to those of a trustee. The position of an executor has been described as “peculiar” (see Attenborough v Solomon [1913] AC 76 at 82 per Viscount Haldane LC) because an executor takes beneficially, as distinct from trustees who take legal title only to assets of a trust. Reference is made to the observation by GE Dal Pont and KF Mackie, the authors of The Law of Succession (2nd ed, 2017, LexisNexis Butterworths) at 309 that “receipt of the deceased’s property beneficially presents an arguably more compelling need for fiduciary accountability than in the case of trustees”.

22. [593]

    It is noted that, once executorial duties have been completed, the executor becomes a trustee; and assets held by the trustee but not yet distributed become trust property. Thus, by continuing to hold property, an executor becomes a trustee. It is noted that an executor can become a trustee of different assets of the estate at different times (reference being made to In Re Earl of Stamford [1896] 1 Ch 288 at 297 per Stirling J; In Re Cockburn’s Will Trusts [1957] Ch 438 at 439-40 per Danckwerts J).

23. [594]

    Merilyn and Bruce rely on the proposition that a co-executor is jointly and severally liable for breaches; and subject to fiduciary duties (though as already noted, the claim said to be maintained against Geoff is limited to one falling within s 47(1)(c) of the Limitation Act).

24. [595]

    Also before turning to the particular claims, it is useful to set out the context in which Merilyn and Bruce say that the expert evidence was approached (not least because it may be relevant in due course in relation to costs but also in that it may be relevant to the defence of laches); and then to indicate the general issues arising from the expert evidence

25. [596]

    Merilyn and Bruce say that there was difficulty obtaining information as to Jill’s estate and that this issue was complicated by the fact that the inventory of property (prepared by the estate solicitors, Mr Manuel of Borthwick and Butler, on the advice of Mr Carrigan of Thomas Davis, Brown & Co, the estate accountant) was not accurate.

26. [597]

    Mr Carrigan commenced work for Thomas Davis, Brown & Co in 1998 and, from 1999, was the accountant for both Jill and Bill in their personal capacities, for The Springs Partnership (in its various forms), for the Bassett Grazing Company partnership, and for the estates of each of Bill and Jill. Mr Carrigan has affirmed two affidavits in these proceedings (on 23 June 2017 and 21 December 2018, respectively). I refer to his cross-examination in due course.

27. [598]

    Reference is made by Merilyn and Bruce to a letter dated 7 May 2007 from Mr Carrigan to Mr Manuel in which Mr Carrigan provided information as to Jill’s estate. Mr Carrigan there noted assets of Jill held in her own name, including a loan to Geoff, as well as assets of Monowai Pastoral Co “with Mr WE Bassett”, the principal assets of which were: the Bassett Downs development; shares and interest bearing deposits; time shares; Colonial Managed Investments; a mortgage loan owing by Geoff and Kaye; and the residence in Lewin Street, Inverell. Mr Carrigan noted that the book value of Jill’s interest in Monowai Pastoral Co was $1,390,105. Mr Carrigan further noted that:

28. [599]

    Merilyn and Bruce say that this information was apparently used for the preparation of the inventory of property but that information contained in pages 4-5 of the estate inventory of property was not accurate. In particular, it is said that: the “City Pacific Limited Account Number 88298542” Fixed Term deposit was shown with a value of only $567,603.34, which they say appears to be a half share (with interest) of the full value of $1,034,508.00, shown in the Statement of Account for Monowai Pastoral Co dated 21 March 2007 at page 4; that Telstra 3 Shares of 2 November 2006 with an ‘at cost’ value of $7,200.00 were not recorded in the Inventory; and that the Timeshare holdings owned by Bill and Jill were also not recorded in the Inventory.

29. [600]

    Further, it is noted that the Inventory did not include all three City Pacific term deposits (part of the “interest bearing deposits” referred to by Mr Carrigan) and that the inventory listed assets of The Monowai Partnership as being jointly owned with Bill. It is said that the Inventory did not account for the fact that, while owned jointly, the share in Hurricane Hill should properly have been treated as a partnership asset and able to be left by the Will (this characterisation being disputed by Geoff). Accordingly, it is said that, with those assets (incorrectly) “removed” from the Inventory and described as “joint” assets, Jill’s interest in The Monowai Partnership and The Springs Partnership was reduced from the values given in Mr Carrigan’s letter. It is said that there is no explanation for that reduction (noting that the Carrigan letter was produced on subpoena in these proceedings).

30. [601]

    It is said that the information provided to the executors in 2015 by the estate accountant, Mr Carrigan, on their enquiries as to Jill’s estate, was also inaccurate. It is said that, in Mr Carrigan’s 13 January 2015 letter, a number of assertions were made as to the estate and certain documentation was provided; including that Bill acquired Jill’s share of The Springs Partnership from Jill’s estate. It is said that Mr Carrigan provided a copy of the Will, the inventory of property (without, Merilyn and Bruce complain, noting that it was inaccurate), a copy of the estate bank account, and a copy of a document entitled Summary of Account (which contained further information that Merilyn and Bruce say was inaccurate). Merilyn and Bruce complain that that information included a notation that “The Springs and partnership” was accounted for to the estate at a value of $280,000.00, and noted the City Pacific Term Deposits in a section of the accounts noting “other payments from Monowai” (without noting that the Inventory did not include two of the three City Pacific Term Deposits).

31. [602]

    Merilyn and Bruce say that, because of the difficulties in verifying the assets of Jill’s estate, their former solicitors wrote to the solicitors then acting for Geoff and for Sue seeking information as to the assets of the estates but that there was no response thereto.

32. [603]

    In summary, it is said that, as a result of the lack of information provided to the cross-claimants and the conflicts in the inventory of property for Jill’s estate; the 2007 and 2015 correspondence from Mr Carrigan; and the evidence given by Mr Carrigan in his affidavits, it was impossible for Merilyn and Bruce to determine from the information with which they had been provided (both prior to the first cross-claim and, as at December 2018, after Mr Carrigan’s second affidavit) how Jill’s estate had been administered, and in particular her interests in the relevant partnerships. (Pausing here, that may well be the case. However, to the extent that the position is still left unable to be determined then this makes good Geoff’s argument (see above) that Merilyn and Bruce have not discharged the onus of establishing that the relevant assets were partnership assets.)

33. [604]

    As a result of the above matters, Merilyn and Bruce say that it was necessary for them to determine what was in fact administered in Jill’s estate, and to compare that to what should have been included in the estate. It is noted that orders were made by consent between the parties on 3 February 2017 to engage a single expert to develop and to address the accounting questions arising from the first cross-claim but it is said that this process proved unworkable by early 2018 (although the accounting questions had been developed by then with submissions by all parties).

34. [605]

    The experts in this matter have provided three reports: the Loneragan Report (Ex 6) (see at [63] above); the Samuel Report (Ex E) (see at [61] above); and the Loneragan Report in Reply (Ex 7) (see at [138] above). On 23 August 2020, prior to the resumption of the hearing on 24 August 2020, a further explanatory report of Mr Samuel was served. Merilyn and Bruce say that it was not until the service of this report that an ongoing dispute between the experts (as to a double-counting in Jill’s estate) was recognised by Mr Samuel (as to which I say more in due course).

35. [606]

    Mr Loneragan’s instructions were to address the accounting questions developed by the single expert and, in so doing: first, to reconcile the payments made to the estate bank account and the assets to which those payments related; then, to identify the property that was not collected for Jill’s estate; and then to examine the taxation and accounting treatment of the partnership assets (especially for Claims 4, 6 and 7 of the first cross-claim) and to trace Jill’s uncollected property, including into the partnerships and sole trading businesses of the executors, Geoff and Bill. It is said by Merilyn and Bruce that Mr Loneragan used business records of the various partnerships and documents produced on subpoena to reach his conclusions. Mr Samuel’s methodology to the determination of partnership assets is different, as I explain in due course.

36. [607]

    Merilyn and Bruce say that Mr Loneragan’s response is central to the first cross-claim (see in due course the contest between the experts’ evidence). Merilyn and Bruce say that, unlike Mr Samuel, Mr Loneragan “restricts himself to scenarios which are borne out by the evidence and have been pleaded in these proceedings” (see [71] of their opening submissions). Geoff, on the other hand (among other criticisms of Mr Loneragan’s report), says that Mr Samuel is the only one of the experts to have properly applied the process required for the determination of the value of the partnership assets.

37. [608]

    Merilyn and Bruce have pointed out that the orders made on 3 July 2019 provided for Geoff’s expert to answer the identical accounting questions as those asked of Mr Loneragan. Complaint is made by them that Mr Samuel failed to answer some of those questions (a complaint the substance of which Mr Samuel did not accept in cross-examination (T 464.9-22)) and that he was instructed also to address a number of alternative scenarios in relation to many of the cross-claims. Thus, complaint is made that Mr Samuel’s report is a “huge matrix” of possible answers (see [185] of Merilyn and Bruce’s closing submissions). (Pausing here, I found the Samuel Report, and Mr Samuel’s oral explanation of the issues, very helpful.)

38. [609]

    In any event, Merilyn and Bruce say that there is significant agreement between the two experts in relation to the accounting questions that each of the experts was required to address. It is submitted by Merilyn and Bruce that Mr Loneragan’s Report in Reply dated 28 October 2019 captures the remaining key issues in dispute in this matter, which they say include the following.

39. [610]

    First, whether assets that, in the opinion of both of the experts, were treated for accounting and taxation purposes as partnership assets, in fact were partnership property. This relates to the land known as Hurricane Hill (Claim 4), the City Pacific Term deposits (Claim 7), and the Monowai Investment assets (Claim 6). Merilyn and Bruce point out that Mr Carrigan agrees that these assets were treated for tax and accounting purposes as partnership assets.

40. [611]

    Second, the value of Jill’s share of The Springs Partnership (Claim 2), including the proper treatment of what is recorded in the ledgers as the “Property Purchase Advance” (see below); and the expert’s assessment of the approximate 132 cattle that remained in the partnership in 2009. (See Merilyn and Bruce’s closing submissions at [202]-[223]). Third, the double-deduction of a loan (Claim 3). Fourth, the failure to collect the balance of the consideration payable for Jill’s share in The Springs (Claim 5). Fifth, the attribution to Bill of the development expenses paid by The Monowai Partnership for Bill’s benefit in relation to the undeveloped land (part of Bassett Downs) that he purchased from Jill’s estate (Claims 7 and 10). Sixth, the alleged failure of the executors to collect Jill’s capital held in The Monowai Partnership , after liabilities, expenses and partner payments were made from The Monowai Partnership bank account. Seventh, the transfer of residential lots to the executor allegedly at an under-value, or without any valuation (Claim 9, with some minor consideration for Claim 8). Finally, the “gift” that Geoff says that Bill paid him from Jill’s estate and the sums received by Geoff from Jill’s estate (Claim 10).

41. [612]

    Merilyn and Bruce say, in broad terms, that the accounting questions posed of the experts required both experts to identify the deposits into the bank accounts, as a basis then to know whether or not the assets pleaded for the first cross-claim were collected. It is said that Mr Loneragan undertook this task at Table A of the Loneragan Report (Ex 6 at [4.1.2]); that Mr Loneragan analysed the aggregate sources of the deposits (Ex 6 at [4.13]); and it is noted that Mr Samuel stated that he “broadly agreed” with the content of each of these tables (Ex E at [77]) (though criticism here appears to be made by Merilyn and Bruce in that they say that Mr Samuel was to some extent confined by his instructions – for example, that the City Pacific term deposits did not form part of Jill’s estate).

42. [613]

    Merilyn and Bruce say that, including all the assets listed in the first cross-claim, Jill’s estate should have been valued at $3,112,486.39 (excluding specific gifts) (see [190] of their closing submissions). Merilyn and Bruce address what they say should have been part of the estate in the ten claims in their first cross-claim. I will consider each claim (and Geoff’s response thereto) in turn. However, before so doing it is convenient to deal with the general issue said to be integral to the resolution of many of the issues in the first cross-claim (see in particular Claims 4, 6 and 7), namely whether various assets held jointly by Bill and Jill were held by Bill and Jill as partnership property.

43. [614]

    It is noted by Geoff that whether a particular asset becomes partnership property depends on what the partners intended and on what they agreed (whether expressly or by implication) (Don King Productions Inc v Warren [2000] Ch 291 at 335); that the question as to what property constitutes partnership property falls for determination either by reference to an express agreement or may be implied by reference to the conduct of the parties (Williams v Nicoski [2003] WASC 131 (Williams) at [249]; Gerovich v Gerovich (as executor of the estate of Gerovich) [2018] WASC 153 (Gerovich) at [47]); and that, in determining whether that inference may be drawn, all of the circumstances surrounding the purchase of the disputed properties must be taken into account (Gerovich at [47]).

44. [615]

    Geoff says that this position is not displaced by the operation of s 20(1) of the Partnership Act, which provides that:

45. [616]

    It is noted that in O’Brien v Komesaroff (1982) 150 CLR 310 at 322, Mason J, as his Honour then was, considered the analogue to this provision in the Partnership Act 1958 (Vic) and said that:

46. [617]

    Geoff points out that the intention of the partners may be manifested in their conduct (referring to Lukin v Lovrinov [1998] SASC 6614). It is noted in this context that property used by a partnership can remain the separate property of a partner and may not be or become partnership property (Williams at [249]); and it is said that the mere fact that partnership money is expended on an asset does not mean that that asset necessarily becomes partnership property if a contrary intention can be found, either expressly or by inference from the partners’ actions (Kelly v Kelly (1990) 92 ALR 74 (Kelly v Kelly)).

47. [618]

    Geoff also notes that the partnership bears the onus of establishing that the land, the title to which remained in an individual’s name, became partnership property (Harvey v Harvey (1970) 120 CLR 529; [1970] HCA 11 (Harvey v Harvey) at 549; [29] per Barwick CJ). In this case, it is said that, in effect, it is the estate of Jill which is asserting that the relevant property formed part of the partnership assets and, accordingly, the relevant onus falls on Merilyn and Bruce.

48. [619]

    It is accepted by Geoff that many of the disputed assets (and, in particular, the assets which are the subject of Claims 4, 6 and 7) were recorded in the partnership accounts for The Monowai Partnership and The Springs Partnership. However, Geoff contends that the fact that assets had been entered into the partnership accounts does not, in this case, support the proposition that those assets were partnership assets.

49. [620]

    As noted above, the partnership accounts for each of The Monowai Partnership and The Springs Partnership were prepared by Mr Carrigan. It is noted by Geoff that, although Mr Carrigan undertook the accounting work for those partnerships, at no stage did he maintain a balance sheet or financial statements solely for the personal assets of either Bill or Jill (Carrigan’s affidavit affirmed 21 December 2018 at [3]).

50. [621]

    In his first affidavit affirmed 23 June 2017, Mr Carrigan commented on some of the claims in the first cross-claim and gave his opinion as to the values of those assets. Merilyn and Bruce point out that Mr Carrigan did not here cavil with the description of various investments being held as assets of The Monowai Partnership.

51. [622]

    In his second affidavit affirmed 21 December 2018, Mr Carrigan gave evidence (at [5]) that, throughout his career, he has adopted (for convenience) a general practice of listing assets which are held personally and jointly by “husband and wife farmers” in the couple’s trading partnership accounts. In his affidavit he explains the reasons why he has adopted this practice, as follows.

52. [623]

    In Mr Carrigan’s view, recording all of a couple’s assets and liabilities in the partnership accounts is “a simple way of maintaining a complete list of assets and liabilities in a way that enables information about those assets to be much more readily available, when required for banking purposes (such as loan applications) and for when it comes time to prepare the couple’s personal income tax returns or to calculate capital gains tax implications of the sale of a particular asset by that couple” (Carrigan’s affidavit affirmed 21 December 2018 at [5]; T202:31-T204:30).

53. [624]

    Mr Carrigan’s evidence is that he considers that, if jointly held assets are not recorded in the couple’s partnership accounts, useful information relating to those assets (such as the initial cost price or the date of acquisition of the asset) is much more difficult to obtain at a later date, such as when it is time to determine any personal income tax liability for income received in respect of those joint assets or the time to determine the quantum of any Capital Gains Tax liability for the sale of an asset; and his view is that having assets recorded in a balance sheet, with the traditional accounting practice of double-entry accounting, facilitates quality control procedures for an accounting practice.

54. [625]

    Mr Carrigan’s evidence is that he was trained to look at each item and query: (i) whether that item still exists; (ii) whether expected income has been accounted for; (iii) whether income has been re-invested; and/or (iv) whether the cost value is still correct or has been affected by events such as takeovers, demergers, amalgamations or capital returns.

55. [626]

    Merilyn and Bruce note that this “unconventional” (as they describe it) practice was raised by Mr Carrigan for the first time in his 21 December 2018 affidavit and that Mr Carrigan admitted that he had no other records which would enable him to differentiate a partnership asset from a personal asset by looking at the ledgers. It is noted that Mr Carrigan said that it was “impossible to tell” whether an asset was held as a partnership asset, or personally, because “no such record is made” (T 204.31).

56. [627]

    Mr Carrigan’s evidence is that, vis-á-vis Bill and Jill, he adopted his usual practice and, accordingly, it was his practice to record any asset which was held jointly by Bill and Jill (but not held by Geoff or by Geoff and Kaye) in The Monowai Partnership accounts, and to record any asset which was held jointly by Bill, Jill and Geoff or Bill, Jill, Geoff and Kaye in The Springs Partnership accounts. In entering those assets into either The Monowai Partnership accounts or The Springs Partnership accounts, Mr Carrigan says that he was adopting his usual practice and did not make those entries because he had formed a view that those assets were assets belonging to either of those partnerships.

57. [628]

    It is said by Geoff that this evidence is consistent with Mr Carrigan having recorded Bill and Jill’s family home (the property at Lewin Street, Inverell) in The Monowai Partnership accounts (see The Monowai Partnership accounts for the period ending 30 June 2006 at Ex 6, Tab HL-6).

58. [629]

    Geoff says that the notes contained in the financial statements also support this conclusion; referring, by way of example, to the financial statements for The Monowai Partnership for the period ending 21 March 2007 (Loneragan Report, Ex 6, Tab HL-6 at [1.1.28]) where it is stated that the statement of accounts are: “special purpose…prepared for use by the partners of the partnership”; “not…prepared in accordance with any specific Australian Accounting Standards, Australian Accounting Interpretations or other authoritative pronouncements of the Australian Accounting Standards Board”; and that the firm that prepared the accounts “do not accept responsibility to any other person for the contents of the special purpose financial reports”.

59. [630]

    Relevantly (for the purpose of Claim 4), in his 21 December 2018 affidavit, Mr Carrigan gave evidence that he regarded Hurricane Hill as a personal, not partnership asset, and that “his purpose in recording Hurricane Hill in The Springs Partnership accounts was not to identify that asset as property belonging to the trading partnership” (at [10]). It is noted that this contention is contrary to his assertion in his letter dated 7 May 2007 that the property “Hurricane Hill” was indeed an asset of The Springs Pindaroi Pastoral Co; and that it is also contrary to his letter dated 13 January 2015 (Ex 4 at Tab 7) in which he stated that the purchase of Hurricane Hill had been purchased by capital contributions by the four partners of The Springs Partnership.

60. [631]

    Merilyn and Bruce note that Mr Carrigan was not able to point to any evidence, apart from the transfer on purchase, and could point to no specific instructions that the asset was held personally (T 215.38-41).

61. [632]

    Merilyn and Bruce also say that Mr Carrigan could not point to any conversations that he had with Bill and Jill as to how Hurricane Hill was to be recorded in their personal finances; that his 21 December 2018 affidavit (at [9]) includes a speculation that the nature of the asset “would have been” explained to them, since that was his usual practice; and that this evidence differs from that given in his 2017 affidavit (where Mr Carrigan did not assert that Hurricane Hill was an asset owned personally by Bill and Jill as to a half share) (T 210.6-13). It is noted that, closer to the time of purchase, on 7 May 2007, Mr Carrigan had communicated to the estate solicitor that Hurricane Hill was an asset of The Springs Partnership; and that in his letter of that date he said that “the purchase was funded “by equal contributions of $50,000.00 each by the four partners of The Springs Pastoral Co” (Ex 5 at 376). It is submitted by Merilyn and Bruce that the correct status of the asset is that, as agreed by Mr Carrigan, for accounting purposes, Hurricane Hill was “treated as an asset of The Springs Pindaroi Pastoral Company” (T 222.48-T 223.1).

62. [633]

    It is said by Merilyn and Bruce that it is also relevant that the income earned by the investment assets of The Monowai Partnership was disclosed to the Australian Taxation Office (ATO) as partnership income. Merilyn and Bruce say that Mr Carrigan resisted agreeing with the suggestion that separating personal assets and partnership assets was good accounting practice (because “you’d have two sets of books instead of one” (T 205.50)) but that his explanation does not grapple with the underlying issue of which is a partnership asset and which is a personal asset.

63. [634]

    Merilyn and Bruce submit that the accounting records should be accepted as evidence of assets being owned by partnerships where they are recorded in the partnership ledgers, despite Mr Carrigan’s evidence.

64. [635]

    Geoff points to the evidence of Mr Carrigan during cross-examination to the effect that, when he entered an asset in the partnership accounts, he would not make an assessment of whether or not an asset was held pursuant to a joint tenancy or tenancy in common (T 203.3-9) or whether those jointly held assets were intended to be partnership assets (T 203.40-48); that Mr Carrigan accepted that the effect of this usual practice was that it was impossible to look at assets recorded in the partnership ledgers and determine whether that asset was a partnership asset or a personal asset of the partners (T 204.28-31; T 207.14-18; T 208.16-21); and that Mr Carrigan also had a practice of including these jointly held investments in the partnership tax returns on the basis that it would not, from a tax perspective, alter the assessable income disclosed to the ATO (T 203.50-T 204.26; T 205.21-24; c.f. T 206.35-50). It is noted by Geoff that Mr Samuel gave evidence in cross-examination that this approach would not alter the assessable income disclosed to the ATO (T 468.8-10).

65. [636]

    Mr Carrigan conceded that it is now “more appropriate” to exclude assets from the partnership accounts which are not partnership assets “these days because the tax office want us to do that” (T 205.49-T 206.5). However, Geoff points to Mr Carrigan’s evidence that, prior to 2007, he would not receive a “pre-filing report” from the ATO and, therefore, did not know whether his clients had quoted their partnership tax file number or personal tax file numbers when acquiring the asset (T 205.49-T 206.5; T 212.14-34).

66. [637]

    For Geoff, it is submitted that Mr Carrigan’s usual practice concerning the recording of jointly held assets in partnership accounts may be unorthodox (and undesirable) but that, nonetheless, he was an honest witness and that his evidence should be accepted. It is said that the effect of this evidence is that the partnership accounts or partnership tax records do not assist in determining whether a jointly held asset was intended by the partners to be partnership property (reference also here being made to Mr Samuel’s evidence at T 469.13-19).

67. [638]

    I formed the view that Mr Carrigan was a credible witness. He appeared genuine in his explanation of the usual practice that had been adopted (based, as I understand it, on the course adopted by his firm at the time he joined the firm and not in breach of any accounting standards or ATO requirements at the time). The accounts he prepared were special purpose accounts and I accept that he did not turn his mind at the time to the niceties as to legal ownership as between husband and wife who were at the time carrying on a farming business in partnership.

68. [639]

    I accept that Mr Carrigan did not have express instructions as to (and nor did he attempt to ascertain) how particular assets acquired by Bill and Jill (or acquired jointly by Bill, Jill and Geoff; and later also by Kaye) were intended to be held by them (whether as individuals or in partnership). (It is also relevant here to note that, at the time, Mr Carrigan did not have access to pre-filing returns that would have disclosed at least in some instances the tax file numbers attributed to the acquirer of the asset – which generally appear to have been individual, not partnership, tax file numbers.)

69. [640]

    In those circumstances, whatever criticisms may be made of the accounting practice that was adopted, I accept that this was Mr Carrigan’s practice and therefore I accept that I cannot place reliance on the partnership or accounting records as a reliable indicator of what jointly held assets were assets of the partnership and what were not. The tax file numbers provided by Bill and Jill in relation to particular investment assets (as to which, see in due course) point to the assets being intended to be acquired by them individually and there is nothing (other than the accounting/partnership records prepared by Mr Carrigan) to suggest otherwise.

70. [641]

    I accept that payment of tax based on partnership returns would ordinarily indicate that the partners accepted that the assets from which that income was derived were partnership assets but given Mr Carrigan’s evidence (and in the absence of evidence as to the intention of the relevant persons – Bill and Jill, each now being deceased), I cannot place weight on this. Payment of tax in this way is equally consistent with Bill and Jill leaving their tax and accounting affairs in the hands of their accountant and following his instructions in relation to the entity from which tax was to be paid.

71. [642]

    I also place no weight on the fact that Mr Carrigan’s initial response when faced with the request from the estate solicitors was to advise as he did. That advice was clearly based on the partnership/accounting records and, again, I cannot assume that Mr Carrigan turned his mind to the legal niceties of title or ownership in respect of the assets – that is not consistent with the way he approached the task of accounting in respect of the husband and wife partnership for those assets.

72. [643]

    I accept Mr Carrigan’s evidence as to his usual practice as truthful evidence.

73. [644]

    Turning then to the ten discrete claims contained in the first cross-claim, I deal with each below. I note at the outset Geoff’s general complaint that both the lay evidence and the expert evidence relied on by Merilyn and Bruce ventures beyond the pleaded case put against Geoff in the first cross-claim and, as already noted, it is Geoff’s position (and vice versa is the position of Merilyn and Bruce) that Merilyn and Bruce must be held to their pleaded case.

74. [645]

    Claim 1 (at [16]-[20] of the first cross-claim) relates to a loan by Jill of $69,500 to Geoff and Kaye which was said to be due and payable but not repaid to Jill’s estate. It is alleged that Bill and Geoff, as the executors of Jill’s estate, failed in their obligation to call up and obtain repayment of the debt (at [17] of the first cross-claim).

75. [646]

    The defence to the first cross-claim pleads, in answer to this claim, a deed of release which was executed by each of the residuary beneficiaries on 28 December 2007 under which the debt was forgiven (Deed of Release). Relevantly, under the Deed of Release, Bruce, Sue and Merilyn (defined in the Deed of Release as the “Creditors” and who the Deed of Release recites are the residuary beneficiaries under Jill’s Will, with the $69,500 debt forming part of the residue) give an undertaking that they “hereby release and forgive to [Geoff and Kaye] the said sum of [s]ixty nine thousand five hundred dollars ($69,500.00) together with any interest if any that may be owing thereon at the date of this Deed”. Geoff says (and this does not appear to be disputed) that the Deed of Release complies with the formal requirements for signature and attestation for a deed under s 38 of the Conveyancing Act 1919 (NSW).

76. [647]

    Bruce’s explanation for the fact that a claim had been made in respect of this debt, when it was the subject of the Deed of Release, was, as I understand it, that he had forgotten about the Deed of Release. The reply filed by Merilyn and Bruce on 30 July 2020 raises a claim that it is unconscionable for Geoff (not, I note, Bill or his estate) to rely on the Deed of Release.

77. [648]

    At [1] of the reply, the following matters are relied upon in relation to the plea that it is unconscionable for Geoff to rely on the Deed of Release: at [1(a)(i)], that Merilyn and Bruce were not shown Jill’s Will prior to signing the Deed of Release; at [1(a)(ii)], that Bill told Merilyn and Bruce in the context of the family meeting on about 23 March 2007 that “Jill … wanted [the loan of $69,500] waived”; at [1(a)(iii)], that the statement that Jill wanted the loan waived was not true (the particulars for this allegation being the evidence of Geoff that he was unaware prior to the meeting that Jill wanted the loan waived and by reference to the Discussion Note (Ex 4 at Tab 53); at [1(a)(iv)], that Merilyn and Bruce did not know that Jill’s Will did not release Geoff and Kaye from the loan; at [1(a)(v)], that Geoff and Bill, as executors of the estate, did not disclose to Merilyn and Bruce at the time of the Deed of Release that other loans were to be waived after Jill’s death (including the $500,000 loan under the Pindaroi mortgage); at [1(a)(vi)] that Geoff and Bill sought legal advice from the solicitor who drafted the Deed of Release; and, at [1(a)(vii)], that no legal advice was provided to Merilyn and Bruce in relation to the Deed of Release.

78. [649]

    Pausing here, the thrust of [1] of the reply (apart from the issue as to non-disclosure of other loans and the disparity as to the receipt of legal advice) reflects Bruce’s apparent assumption at the time (and he admitted in effect in cross-examination that it was no more than an assumption on his part (T 320.49-T 321.1)) that Jill’s wish for the loan to be waived was reflected in her Will. There is no evidence that Bill said that it was (and, indeed, if it had been then it would make no sense for there to be a formal Deed of Release in relation to a debt that had already been forgiven under her Will). Also, of no little concern to my mind, is how Bruce could properly have verified the allegations in the reply insofar as they contained the allegation that the statement (by Bill, it must be emphasised) that Jill wanted the loan waived was not true. There is simply no evidence to support that allegation (and it is inconsistent with the case put forward by Merilyn and Bruce at least by way of cross-examination of Geoff that Bill was an honourable man). The fact that Geoff may not have been aware of Jill’s wish is not to the point; it hardly provides evidence as to whatever may have been communicated by Jill to Bill prior to her death. The stance adopted by Bruce in this regard reflects to my mind his seemingly long-standing dissatisfaction as to the perceived inequality of treatment as between himself and Geoff over the years.

79. [650]

    In any event, Merilyn and Bruce’s evidence is that they were not offered, and did not receive, any independent legal advice about the Deed; instead, Geoff and Bill sought their own legal advice about the waiver of this and other debts owed to the estate; and that Geoff and Bill did not provide a copy of Jill’s Will to Bruce and Merilyn (Bruce’s affidavit sworn 28 September 2015 at [94]; Merilyn’s affidavit sworn 28 September 2015 at [18]). Pausing here, there is no evidence as to the nature of the legal advice that Merilyn and Bruce plead that Geoff and Bill obtained in relation to the Deed (it may be that they rely simply on the fact that the Deed was drafted by a solicitor). Nor is it explained how it is that it was unconscionable for the executors not to “provide” legal advice to Merilyn and Bruce (it not being alleged that there was any duty on the part of the executors to do so, nor is it alleged that there was anything said on the occasion of the family meeting that would have given rise to a duty to advise the residuary beneficiaries to obtain legal advice).

80. [651]

    I note that Merilyn and Bruce were adults at the time and there seems no evidence that they were suffering under any relevant disability (in that regard I do not regard Bruce’s professed inexperience with estate administration to amount to a disability as such). They would surely have been capable of seeking their own legal advice had they thought it necessary. Bearing in mind the family context of the arrangements there being spoken about, it seems to me inherently implausible that Merilyn and Bruce would have expected to be advised to seek legal advice as to whether to comply with what they were told by their father was a wish of their deceased mother in relation to waiver of what can only be said to be a relatively minor sum in the scheme of things (having regard to the fact that the residuary beneficiaries did, after all, receive close to $600,000 each from their mother’s estate).

81. [652]

    Be that as it may, Bruce’s evidence is that he had never read a will until 2014, that he had no understanding of estate administration at the time of signing the Deed, and that he understood the document (i.e., the Deed of Release, presumably) had been prepared upon Jill’s instructions (T 322.4-14). Merilyn and Bruce also complain (as noted above in the pleaded reply) that they were not told of other significant loans owed by Geoff which were waived by Bill and Jill during their lifetimes, and also by Bill after Jill’s death, including the $500,000 loan waiver for the Pindaroi mortgage after Jill’s death. (It is not immediately apparent how non-disclosure of the waiver of other loans renders reliance by Geoff on the Deed of Release unconscionable, particularly having regard to the fact that the waiver of the $500,000 was consistent with the documentary evidence of the arrangements entered into at the time of the Pindaroi mortgage – again, it seems to be little more than a complaint by Bruce about inequality of treatment amongst the siblings.)

82. [653]

    At [2] of the reply, it is pleaded that Merilyn and Bruce were “induced” not to make enquiries as to the waiver of the loan for the reasons set out at [1] and in addition that the residuary beneficiaries were not provided with “appropriate information” about Jill’s estate. The particulars to the allegation at [2] refer to Mr Carrigan’s letter dated 13 January 2015; to the alleged failure to include relevant assets in the inventory of property in respect of Jill’s estate; and to the unawareness of Merilyn and Bruce as to any rights they may have had because of the actions of Geoff and Bill (here invoking s 55 of the Limitation Act). Presumably, this is relied upon as an explanation for the delay in raising this issue (to meet any laches argument).

83. [654]

    Merilyn and Bruce say that it is not clear that Jill in fact wished for the loan to be repaid; and they point in this regard to Geoff’s evidence that he was surprised to hear that Jill had wanted this (see Bruce’s evidence in cross-examination at T 319.35-8). They say that the residuary beneficiaries were told, in the context of being informed about Jill’s Will, that “she wanted [the loan of $69,500] waived” (see Bruce’s affidavit sworn 28 September 2015 at [94]-[95]) but complaint is made that no evidence of this was given to them by Bill. As noted above, Merilyn and Bruce allege that the statement by Bill that Jill wanted the loan of $69,500 waived was false. (There is simply no evidence to support that allegation.)

84. [655]

    It is said by Merilyn and Bruce that the Deed of Release was procured by Bill as an executor; that it benefitted Geoff (as, indeed, it did); and that, as executors of the estate, Bill and Geoff had a duty to ensure that the debt was properly repaid and that they did not benefit from their administration of the estate (see [197] of their closing submissions). Merilyn and Bruce say that the effectiveness of the Deed needs to be examined in light of all of the evidence of the conduct of the executors and what they say was Geoff’s position of conflict (as one of the executors and the beneficiary of the waiver of this loan) (pointing again to the significant other loans, totalling $500,000, said to have been owed by Geoff as at Jill’s death which were also waived).

85. [656]

    Merilyn and Bruce contend that the loan in Claim 1 should be repaid by Geoff to Jill’s estate with interest, for distribution to the residuary beneficiaries of Jill’s estate; although they note that in Mr Loneragan’s Report he has identified one interest payment by Geoff and Kaye that Merilyn and Bruce accept would need to be credited to Geoff (Ex 6 at [4.1.30]).

86. [657]

    Insofar as the allegation by Merilyn and Bruce (namely, that Geoff’s reliance on the Deed of Release is “unconscionable”) is intended to raise the equitable doctrine described in Commercial Bank of Australia v Amadio (1983) 151 CLR 447), Geoff says that the requisite elements are not here satisfied. It is said that the matters relied upon in the reply (at [1]), on their face, could not collectively satisfy the requirement for special disadvantage.

87. [658]

    Insofar as the premise of the allegation of unconscionability is an allegation that Bill made a misleading statement to Merilyn and Bruce (see reply at [1](a)(ii)-[1](a)(iii)) because Bill told them that Jill wanted the loan of $69,500 waived, Geoff says that there is no evidence that the statement was false and, moreover, that it does not logically follow that, if Jill did not tell Geoff that she wanted the debt waived, then she must not have told Bill this (see Bruce’s evidence in cross-examination at T 319.35-48), noting that Bruce accepted in cross-examination that he could not suggest any reason why Bill would have lied about this (T 320.12-14). Further, Geoff notes that the allegedly false statement was made by Bill, and not by Geoff (T 319.43-8); and Geoff says that, even assuming that the statement was false, there is no evidence that Geoff knew it to be false.

88. [659]

    It is said that the reply misconstrues the evidence which appears in the particulars to [1]. In that regard, it is noted that Bruce’s evidence is that Bill said to him (and the others) that “Geoff has some money he owed to Jill, about $70,000 from a loan she gave him and Kaye. She wanted that waived” (Bruce’s affidavit sworn 28 September 2015 at [95]). It is noted that Merilyn attributes the following words to Bill: “Mum wanted to forgive the debt. She didn’t want Geoff to pay it back” (Merilyn’s affidavit sworn 28 September 2015 at [20]). Geoff submits that, even on the cross-claimants’ own evidence, there is no suggestion that Bill represented to Merilyn and Bruce that Jill had released Geoff and Kaye from the debt in her Will; rather, that Bill simply told them that Jill wanted the debt waived. It is said that there is no evidence in support of the proposition that Bill misrepresented the terms of Jill’s Will to Merilyn and Bruce (or that Geoff was aware of that fact). It is noted that Bruce accepted during cross-examination that Bill did not tell them that Jill had released Geoff and Kaye from this debt “in her will” but, rather, he had made an assumption to this effect (T 320.16-T 321.1).

89. [660]

    As to the fact that no legal advice was provided to Merilyn and Bruce, it is pointed out that this is a very different proposition to the cross-claimants being denied the opportunity to obtain legal advice. It is said that there is no suggestion that either Merilyn or Bruce was, at the time, incapable of forming an independent view about the need to obtain legal advice prior to signing the Deed of Release; and that their decision not to do so cannot now be visited upon Geoff.

90. [661]

    For those reasons, it is said that the unconscionable conduct allegation and more generally, Claim 1, must fail.

91. [662]

    I agree with Geoff’s submissions. There is nothing to establish that the statement Bill made (to the effect that Jill wanted the debt waived) was false; nor is there any evidence that Bill represented that this was a provision of Jill’s Will. Bruce accepted that it was simply his assumption that Jill’s Will contained such a provision. (The fact that Bruce was prepared to verify on oath an allegation that Bill made an untrue statement in those circumstances does not stand to Bruce’s credit.)

92. [663]

    Moreover, I am not persuaded that any special disability on the part of Merilyn or Bruce was established in relation to the circumstances concerning entry into the Deed of Release such as would make it unconscionable for Geoff to rely on the Deed of Release.

93. [664]

    There was ample opportunity between the date of the family meeting and the date on which the Deed of Release was executed for Merilyn and Bruce (and Sue for that matter) to obtain legal advice if they wished (or to ask to see Jill’s Will if they felt the need to satisfy themselves as to whether any provision as to waiver of the debt was contained in the Will).

94. [665]

    Claim 1 is not made out.

95. [666]

    Claim 2 (at [21]-[27] of the first cross-claim) concerns Jill’s interest in The Springs Partnership as at the date of her death and relates to the alleged failure of the executors to administer Jill’s estate so that her interest in The Springs Pindaroi Pastoral Co was paid into her estate (see [23] of the first cross-claim). Mr Loneragan, in his expert report, values that interest (excluding the partnership land) at $121,922.28 (Ex 6 at [4.1.31]).

96. [667]

    It is alleged that the executors of Jill’s estate failed to procure payment of the amount of $121,922.28 (or any amount) in breach of their duty as executors (first cross-claim at [21]-[23]). In the alternative, it is alleged that, in breach of Bill and Geoff’s executorial duties, Jill’s interest in The Springs Partnership was transferred to The Bassett Grazing Co Partnership without any consideration being paid to Jill’s estate (first cross-claim at [24]-[25]).

97. [668]

    In the further alternative, it is alleged that Geoff was precluded from receiving, as a distribution from Bill’s estate, the interest that Jill’s estate held in The Springs Partnership which had been transferred to Bassett Grazing Co; and that, upon liquidating the assets of The Bassett Grazing Co Partnership and winding up that partnership following Bill’s death, Geoff had a duty (which he breached) to make payment from those partnership assets into Jill’s estate with the quantum of that payment being equal to the value of Jill’s interest in The Springs Partnership (first cross-claim at [26]-[27]). The value of this claim is the subject of a contest between the experts.

98. [669]

    Mr Loneragan provides evidence as to the accounting treatment of Jill’s interest in The Springs Partnership following 15 April 2009. In particular, Mr Loneragan identifies that the 2009/2010 general ledger for The Springs records that Jill’s interest in the partnership was first transferred to Bill as a “Salary Allowance” and then transferred to The Bassett Grazing Co Partnership on 1 July 2009 (Ex 6 at [4.2.71], [4.2.77]-[4.2.80]).

99. [670]

    In essence, Merilyn and Bruce say that, instead of paying the amount of Jill’s share of The Springs Partnership into her estate, the interest was transferred to The Bassett Grazing Co Partnership in 2009 (a partnership owned in equal shares by Bill and Geoff); that that interest can be traced into Bill’s estate, and was received by Geoff under Bill’s Will and then distributed to Geoff from The Bassett Grazing Co Partnership after Bill’s death. (Merilyn and Bruce note that it is Geoff’s claim that he was promised Bill’s share of The Bassett Grazing Co Partnership in 2009, at a time when he was an executor for Jill’s estate.)

100. [671]

     As noted, Merilyn and Bruce say that no consideration was paid by The Bassett Grazing Co Partnership for Jill’s interest in The Springs Partnership. (In their reply, at [3], they contend that any payment by Bill for Jill’s share of The Springs Pindaroi Pastoral Co was an advancement to Jill as from husband to wife – although that did not appear to be an argument on which focus was placed in submissions.)

101. [672]

     Merilyn and Bruce say that, as The Bassett Grazing Co Partnership was formed after Jill’s death, the transfer of her interest in The Springs was undertaken by Bill and Geoff as executors, in breach of their fiduciary duty to the beneficiaries of Jill’s estate. It is noted that that partnership was wound up by 30 June 2015, and the assets of the partnership were fully distributed to Geoff. Thus, it is said that Geoff holds the property of The Bassett Grazing Co Partnership subject to an obligation to pay the value of Jill’s share of The Springs Partnership to her estate; and that Geoff should repay the amount of $121,922.28, plus interest, to Jill’s estate for distribution to the residuary beneficiaries.

102. [673]

     In this context, issues were raised in the expert evidence both as to the treatment in the accounts of The Springs Partnership of the Property Purchase Advance and as to the value to be attributed to the cattle. I deal with those issues below.

103. [674]

     As to the first of those issues, Merilyn and Bruce say that a key issue in determining the value of Jill’s interest in The Springs Partnership is the proper treatment of the Property Purchase Advance that was entered into the books of The Springs Partnership after Kaye’s “inclusion” as a fourth partner from 1988 (at which time The Springs was removed from the partnership accounts).

104. [675]

     This Property Purchase Advance relates to the purchase of The Springs. The amount appears in the Statements of Account for The Springs (see, for example, Carrigan’s affidavit affirmed 21 December 2018 at Annexure A). The relevant chronology in that regard can be restated as follows.

105. [676]

     As noted earlier, the Springs was purchased in 1985. It was recorded in the accounting records of The WJG Bassett Partnership as “Land and Improvements ‘The Springs’ – At Cost”, with a value of $289,974 (Ex 6, Tab HL-6 at [1.2.1]; T 484.21-27). The liabilities associated with the purchase of The Springs were also recorded in The WJG Bassett Partnership accounting records at that time, being a loan from The Monowai Partnership in the amount of $100,000 and a loan from the National Australia Bank in the amount of $168,000 (Ex 6, Tab HL-6 at [1.2.1]; T 484.29-37).

106. [677]

     As noted above, in 1988, The Springs Pindaroi Pastoral Co Partnership was formed (being a partnership which now included Kaye as the fourth partner) and the land comprising The Springs was removed from that Springs Partnership’s balance sheet and replaced by the notation “Property Purchase Advance W.E., E.J. & G.W. Bassett” with a value of $245,974 (the cost value of the land) (Ex 6, Tab HL-6 at [1.2.4]; T 484.49-T 485.34). In 1988, the loan from NAB was partly repaid by The Springs Partnership (that is, the loan from NAB reduced by $174,239; from $194,511 in the 1985 financial year to $20,272 in the 1988 financial year), whereas the loan owing to The Monowai Partnership increased by $100,000; from $100,000 in the 1985 financial year to $200,000 in the 1988 financial year (Ex 6, Tab HL-6 at [1.2.1]-[1.2.4]; see T 385.36-49).

107. [678]

     It is said by Merilyn and Bruce (and does not appear to be disputed) that, although The Springs was removed from the books of The Springs Partnership, the partnership continued to use that land for its farming operation. Merilyn and Bruce say that no lease or other payments were received by the three land-owning partners (clearly here a reference to Bill, Jill and Geoff) for the use of this asset (see closing submissions at [204]).

108. [679]

     In the course of submissions, there was some debate (I confess that this was inspired by a query from me) as to whether the entry in the accounts of this Property Purchase Advance might be understood in terms that Bill, Jill and Geoff might be said to have been “notionally advancing that amount of money” to the partnership, i.e., the amount of $290,270 (T 494.37-44). Merilyn and Bruce in their closing submissions (at [211]) adopt that position. However, it is necessary here to be clear as to the respective partnerships. As Mr Samuel explained cogently in cross-examination, the Property Purchase Advance is recorded as a receivable (i.e., an asset) namely a debt owed to The Springs Partnership by Bill (as to 25%), Jill (as to 25%) and Geoff (as to 50%). Therefore, it reflects a loan or advance from The Springs Partnership to each of the three individuals (T 473.29-30).

109. [680]

     Merilyn and Bruce say that Mr Samuel deducted the Property Purchase Advance from the capital of all four partners of The Springs Partnership equally (including Kaye), and not just from the original three partners, noting that Mr Samuel has stated in his report (at [236]) that:

110. [681]

     It is said by Merilyn and Bruce that, if the Property Purchase Advance was, as Mr Samuel concluded, a debt owed to the partnership (i.e., The Springs Partnership) by the three original partners, in Bill (25%), Jill (25%) and Geoff (50%), then it would not be deducted from Kaye’s interest in the (subsequently formed) Springs Partnership, which would have the result that Kaye, although the only non-land owning partner, would enjoy funds of $73,588.98, well in excess of the land-owning partners of Geoff (-$21,473.02), Bill ($40,557.48) and Jill ($45,557.48).

111. [682]

     It is submitted that this cannot have been the intention of Bill, Jill and Geoff in substituting the Property Purchase Advance for The Springs in the books of the relevant partnership in 1988. In particular, it is noted that Kaye contributed no capital to the partnership prior to 2005 (with the purchase of Hurricane Hill) and performed no work on The Springs farm.

112. [683]

     Merilyn and Bruce say that, as a matter of logic, Bill, Jill and Geoff did, in fact, “notionally advance that amount of money” (at [211] of their closing submissions) to the partnership (by which I understand Merilyn and Bruce to be referring to the four particular iterations of The Springs Partnership), being $290,270, with the intention that this advance would be paid to them before the ultimate residue was divided between the partners, as per s 44 of the Partnership Act.

113. [684]

     It is said that if the Property Purchase Advance is treated as a “notional advance” to the (four partner) partnership by the three original land-owning partners, then the resulting calculations shown in the table from the Loneragan Report (Ex 6 at [4.2.57]) reflect the proper purpose of this Advance. It is said that this treatment of the Property Purchase Advance ensures that Bill, Jill and Geoff receive the majority of the partnership funds as compensation for the use of their land by the partnership and that this is the proper treatment of the Property Purchase Advance in determining the partner funds of the four partners.

114. [685]

     As a final point, Merilyn and Bruce say that, in the various tables considered in their submissions, the liability for The Monowai Partnership loan has already been deducted from the current accounts of each of the partners equally, so that they say there is no accounting basis upon which to deduct again, either from the interest held by Jill and Bill in The Monowai Partnership (as the creditor) or the Property Purchase Advance in The Springs Partnership.

115. [686]

     Geoff points to Mr Samuel’s opinion that the Property Purchase Advance asset (in the books of The Springs Partnership) reflected a loan receivable to The Springs Partnership from Bill (25%), Jill (25%) and Geoff (50%) (Ex F). It is noted that, in his reports, Mr Loneragan did not accept that the Property Purchase Advance asset reflected a loan receivable to The Springs Partnership from Bill (25%), Jill (25%) and Geoff (50%). However, at T486.13-24, Mr Loneragan seemed not entirely sure whether he had always maintained this view in his reports in that he stated: “I’d have to go back to my report”. In any event, Mr Loneragan did ultimately accept this in cross-examination (see T 486.1-11; T488.28-43).

116. [687]

     In cross-examination, Mr Loneragan conceded that the “Property Purchase Advance” was a liability (on the part of Geoff (as to 50%), and of Bill and Jill (as to 25% each) and an asset of The Springs Partnership (T 473.24-34; T 484.1-T 485-34). Geoff says that Mr Loneragan asserted that he reached the same conclusion in his reports (see T 486.1-11), in the Loneragan Report at [4.5.18], Mr Loneragan asserted that the Property Purchase Advance entitled Bill, Jill and Geoff to have partnership assets applied in payment of the Property Purchase Advance. It is said that Mr Loneragan had formed the view in his report that the Property Purchase Advance was an amount payable from The Springs Partnership to Bill, Jill and Geoff, rather than being an amount payable from Bill, Jill and Geoff to The Springs Partnership (the latter being the position he accepted in cross-examination) (cf T 487.44-T 488.21).

117. [688]

     Geoff says that, when the Springs was transferred out of The Springs Partnership to Bill, Jill and Geoff for no payment, the Property Purchase Advance was included in the accounts to record a loan which was payable by each of Bill, Jill and Geoff personally to the partnership (in lieu of The Springs Partnership holding the asset in its accounts).

118. [689]

     I accept the explanation proffered by Mr Samuel as to what is recorded in the accounting entries (noting that Mr Loneragan ultimately accepted that this is what the Property Purchase Advance entry represents from an accounting point of view) and hence I accept Geoff’s submissions on this issue.

119. [690]

     As to the second of the issues referred to above which arise from the expert reports, Merilyn and Bruce note that, in his report, Mr Loneragan calculated the average price per head of cattle (at $648.43 (Loneragan Report at [4.2.43]) based on the realised sale values of 477 cattle sold by The Springs Partnership in the 2 years following Jill’s death, from 21 March 2007 to 15 April 2009 (but excluding the sale of 42 cattle to Geoff). Mr Loneragan excluded the cattle sold to Geoff on the basis that he was seeking to ensure that the sales data relied on related to “arm’s length” sales. Mr Loneragan used this average realised sale value in the 2 years after Jill’s death, as a basis to estimate the value of the remaining 132 cattle held by The Springs Partnership as at 15 April 2009 (in other words, to revalue the livestock).

120. [691]

     In responding to Mr Loneragan’s estimate of the value of the remaining 132 cattle held by the Partnership at 15 April 2009, Mr Samuel gave an “illustrative” estimate of the market value of the Partnership’s cattle (in order to demonstrate the possible flaws of Mr Loneragan’s calculations) but Mr Samuel (unlike Mr Loneragan) was at pains to disclaim any expertise in the area of valuation of livestock.

121. [692]

     Merilyn and Bruce point out that the margin of difference between the experts is only $15,189.20 (see Samuel Report, Ex E at [219]).

122. [693]

     It is submitted by Merilyn and Bruce that Mr Loneragan’s method of estimation, although conceded to be imperfect, was considered to be cost effective and reasonable given that Jill’s 25% interest in these remaining 132 cattle in 2009 had a value of between $22,477.78 (by Mr Loneragan’s calculations) and $18,680.23 (by Mr Samuel’s calculations). It is said that the cost of engaging a livestock valuer was recognised as disproportionate to the value of the asset, and the estimation was necessary, as the cattle were only shown at their book value of $40,480.00 in The Springs Statements of Account as at 15 April 2009.

123. [694]

     Geoff points out that, although in reaching his conclusion as to the value of Jill’s estate’s interest in The Springs Partnership, Mr Loneragan purports to have conducted a valuation of the livestock, Mr Loneragan’s resume (Ex 6, Tab HL-7) does not disclose that Mr Loneragan has any specialised knowledge concerning the valuation of livestock. In cross-examination, Mr Loneragan accepted that he had no expertise in relation to the valuation of livestock (T 537.35-8). Complaint is made by Geoff that, notwithstanding this, Mr Loneragan purports to value the livestock.

124. [695]

     It is said that, in general terms, Mr Loneragan has sought to arrive at a market value for the livestock by using historical data purportedly to calculate an ‘average value’ per head (T 473.13-5). As noted above, Mr Loneragan considered the actual market price achieved from the sale of cattle in the period from 2007 to 2009 (Loneragan Report at [4.2.40]) and excluded the stock sold to Geoff and Kaye. Geoff says this was based on the unfounded assumption that this stock was not sold at arm’s length terms.

125. [696]

     For Geoff, it is submitted that one would expect that such a valuation would necessitate the forming of an opinion concerning the condition of the cattle sold and the prevailing market conditions at the time of the valuation. It is said that, as identified by Mr Samuel, the concept of market value is a “date specific measure” and cannot be calculated through the averaging of historical sale data (Samuel Report at [202], [203], [208], [209], [211]). It is said that this is plainly a matter for an expert livestock valuer and that there is no basis for the assumption made by Mr Loneragan that stock was sold to Geoff and Kaye otherwise than at arm’s length. Mr Samuel has identified a number of other issues in relation to this calculation (Samuel Report at [181]-[198]).

126. [697]

     Mr Loneragan’s evidence in cross-examination was that he was not valuing the livestock but was merely following an instruction that he could value the livestock by looking at historical sales data (T 529.1-34). It is noted that Mr Loneragan acknowledged that he knew, at the time he was preparing his reports, that it was not possible to ascertain the market value of the livestock using this methodology and knew that he was not qualified to value livestock (T 530.14-6; T 531.10-18). Complaint is made that, notwithstanding this, Mr Loneragan did not make a statement to that effect in his reports, nor did he expressly state in his reports that he did not have any expertise as a livestock valuer. It is noted that, in response to Mr Samuel identifying in his report that he was not a livestock valuer, Mr Loneragan criticised Mr Samuel apparently for appearing to give an opinion on the value of the livestock using Mr Loneragan’s methodology (Loneragan Report in Reply, Ex 7 at [3.1.26]-[3.1.27]) (Geoff says that Mr Samuel was simply giving evidence of how the methodology could be easily manipulated and notes that Mr Samuel expressly disclaimed the methodology. It is said that it must have been the case that Mr Loneragan realised, at the time he prepared his report, that what he was doing was representing that he had calculated the market value of the livestock; and criticism is made that, instead of simply declining to conduct the ‘valuation’ because Mr Loneragan did not possess the expertise to do so, he purported to express an opinion in relation to the market value of the livestock (T 531.10-18).

127. [698]

     Further, it is said for Geoff that the book value of the cattle recorded in the accounts should not be accepted as being an accurate record of the market value because the cattle are likely recorded at cost price. It is noted that Mr Loneragan accepted that this was not an appropriate way to value the livestock (T 532.17-9).

128. [699]

     Geoff contends that Merilyn and Bruce have failed to adduce credible and probative evidence concerning the value of this livestock and, accordingly, the livestock should be accorded a nil value for the purposes of this claim.

129. [700]

     I consider that the criticism of Mr Loneragan’s Report in this regard is justified (as to which I say further below). For the purposes of the valuation of Jill’s interest in The Springs Partnership, I am unable to accept the value attributed by Mr Loneragan to the cattle. While I accept that the cost of engaging a livestock valuer may well have been disproportionate to the amount involved, I am not persuaded that there is evidence that would allow me comfortably to attribute a value to the cattle other than at their book value.

130. [701]

     Merilyn and Bruce say that it is generally now agreed that no consideration was paid by The Bassett Grazing Co Partnership for Jill’s interest in The Springs Partnership. Reference is made to the cross-examination of Mr Carrigan as to the statement in his letter of 13 January 2015 that Jill’s interest in The Springs Partnership was “acquired” (T 229.14-32):

131. [702]

     As The Bassett Grazing Co Partnership was formed after Jill’s death, it is said that the transfer of her interest in The Springs was undertaken by Bill and Geoff as executors, in breach of their fiduciary duty to the beneficiaries of Jill’s estate. That partnership was wound up by 30 June 2015, and the partnership was fully distributed to Geoff (Loneragan Report, Ex 6 at [4.2.102]). Accordingly, it is said that Geoff holds the property of The Bassett Grazing Co Partnership subject to an obligation to pay the value of Jill’s share of The Springs Partnership to her estate; and that Geoff should repay the amount of $121,922.28, plus interest, to Jill’s estate for distribution to the residuary beneficiaries. It is said to be an estate (trust) asset which can be traced into his hands and, as an executor, it arrived there in breach of his duty not to profit from his status as executor.

132. [703]

     Geoff’s position in relation to Claim 2 is considered with Claim 3 below.

133. [704]

     Claim 3 of the first cross-claim (at [28]-[36]) relates to a debt owed by the partners of The Springs Pindaroi Pastoral Co to The Monowai Partnership (of which Jill was a 50% partner) in the sum of $293,075.00 (which, by 30 June 2007, had increased to $319,075.00).

134. [705]

     On Mr Loneragan’s calculations, this loan was deducted from Jill’s interest in The Springs Partnership to calculate the value of her interest in that partnership for Claim 2. Accordingly, it is said that, in Claim 3, this loan is considered as an asset receivable by The Monowai Partnership.

135. [706]

     It is common ground between the parties that, on 18 July 2008, a payment of $160,000 was made by The Springs Partnership to Monowai (Loneragan Report, Ex 6 at [4.3.7]) and that on that same day, an amount of $80,000 was paid from Monowai to Jill’s estate bank account (Loneragan Report at [4.3.8]). Mr Loneragan says that no further repayment was made for this loan to The Monowai Partnership or to Jill’s estate (Loneragan Report, Ex 6 at [4.3.10]).

136. [707]

     It is said that the remaining sum of $80,000 was held in The Monowai Partnership bank account and that Bill received roughly equal distributions from that bank account, compared to Jill’s estate, so that Bill ultimately received his 50% share of this repayment (the payments from The Monowai Partnership bank account being said to be reconciled in Claim 7 of the first cross-claim).

137. [708]

     Merilyn and Bruce say that the experts agree that an additional repayment of $162,000.00 was made by The Springs Partnership to Bill on 26 June 2009. However, they say that this money was retained by Bill and was then re-applied to The Bassett Grazing Co Partnership as a cash contribution for the purchase of Geoff’s cattle (and that no part of this loan repayment was paid to The Monowai Partnership or to Jill’s estate).

138. [709]

     Merilyn and Bruce note that, while it is agreed that the total loan amount owed by The Springs Partnership to The Monowai Partnership was $319,075 at 30 June 2007, Geoff contends that the value of Jill’s 50% interest in that loan (as a partner of The Monowai Partnership, the creditor) was only $79,768.85 (Samuel Report, Ex E at [335]); rather than a 50% share of the loan. It is said that this value is arrived at because both Mr Samuel and Mr Carrigan deduct the loan as a liability from both Jill’s 25% interest in The Springs Partnership (as a debtor), as well as from her 50% interest in the loan in The Monowai Partnership (as a creditor).

139. [710]

     Merilyn and Bruce say that the practical result of these calculations would be that, although Jill held an equal interest to her husband, Bill, in both The Springs Partnership and The Monowai Partnership, her interest in the loan has a value of only $79,768.85, compared to the actual repayments totalling $322,000 (i.e., $160,000 to The Monowai Partnership on 18 July 2007 and $162,000 to Bill on 29 June 2009) that were made by The Springs Partnership, and which were deducted from Jill’s 25% interest in that partnership. It is said that Mr Samuel only treats Jill’s interest in the loan in this manner, and that he does not use the same method to assess the value of Bill’s interest in the loan.

140. [711]

     Merilyn and Bruce say that the value of Jill’s estate’s 50% interest in the debt is $81,037.69 and that liability for that amount also formed part of the property transferred into The Bassett Grazing Co Partnership in 2009 (Loneragan Report, Ex 6 at [4.1.33]-[4.1.34]). It is said that the balance of the loan was taken over by The Bassett Grazing Co Partnership and was not repaid to Jill’s estate. Merilyn and Bruce say that Geoff is either liable to Jill’s estate for the amount of $81,037.69 (having received The Bassett Grazing Co Partnership property without accounting to her estate) or liable to her residuary beneficiaries for breach of his executorial duties, by causing loss and damage to Jill’s estate.

141. [712]

     Merilyn and Bruce say that Geoff should repay the amount of $81,037.69, plus interest, to Jill’s estate for distribution to the residuary beneficiaries; and that it is an estate (trust) asset which can be traced into his hands, and as an executor, it arrived there in breach of his duty not to profit from his status as executor.

142. [713]

     As noted, in his submissions, Geoff addresses Claims 2 and 3 together.

143. [714]

     As to Claim 2, Geoff says that the question for determination is whether, in relation to the loan referred to above, the payment of $80,000 into Jill’s estate bank account was sufficient to discharge the debt which was due and payable to Jill’s estate. Insofar as Claim 2 concerns, in part, the treatment of the Property Purchase Advance accounting entry (discussed above), Geoff says that the appropriate treatment of the Property Purchase Advance is interconnected with the repayment of the Claim 3 loan.

144. [715]

     It is noted that Mr Loneragan has calculated the value of Jill’s estate’s interest in The Springs Partnership (excluding Hurricane Hill) as at 15 April 2009 (being the date on which it is alleged that this interest was said to be “rolled over” into The Bassett Grazing Co Partnership) at $121,922.28 (a minor difference, it is noted, from the pleaded amount) (Loneragan Report, Ex 6 at [4.2.59]-[4.2.60]). Geoff says that there are significant difficulties with Mr Loneragan’s valuation both in respect of expertise and methodology.

145. [716]

     Mr Samuel has determined a value for Jill’s estate’s interest in The Springs Partnership as at 15 April 2009 being $45,557.48 (Samuel Report, Ex E at [236]). However, it is said that even this value has a problem which is that Mr Samuel has had to make certain assumptions because there is no reliable evidence concerning the value of the livestock. It is submitted that, in the absence of probative evidence as to the value of the livestock, there should be ascribed a nil value thereto (rather than engaging in an exercise of speculation as to the value of livestock) and hence that the value of this claim will fall further.

146. [717]

     Geoff points out that, as at the date of Jill’s death, being 21 March 2007, The Springs Partnership balance sheet included the Property Purchase Advance (as a receivable asset) with a book value of $290,270) (Ex 6, Tab HL-6 at [1.2.23]); as well as a liability to Monowai with a book value of $293,400 (Ex 6, Tab HL-6 at [1.2.23]). It is noted that the net amount of these two amounts is $3,400, in which Jill held a 25% interest, being $850. It is further noted that, as at the date of Jill’s death, Jill also held: (i) a 50% interest in The Monowai Partnership, which included the loan receivable from The Springs Partnership (being the subject of Claim 3), the book value of which loan, as at the date of Jill’s death, was $293,400, in which Jill’s 50% interest was $146,700; and (ii) a personal liability to The Springs Partnership (being a liability equal to 25% of the Property Purchase Advance). Jill’s 25% share of the acquisition of the Springs Land from The Springs Partnership was $72,567.50. It is said that this personal liability owing from Jill to The Springs Partnership is recorded as part of the Property Purchase Advance as an asset in The Springs Partnership accounting records.

147. [718]

     Geoff refers to the evidence given by Mr Loneragan concerning an alleged “double counting” of Jill’s personal liability (T 492.32-43) (which Mr Samuel conceded was a possibility if, in effect, Claims 2 and 3 were considered in isolation (T 492.45-T 493.3)). However, it is noted that the experts were in agreement that there was no issue of “double counting” in the methodology adopted by Mr Samuel in part 2 of his Report (T 514.35-40). Similarly, it is said that there is no issue with the methodology adopted in Exhibit F.

148. [719]

     Geoff says that since it is common ground between the parties that on 18 July 2008, a payment of $160,000 was made by The Springs Partnership to The Monowai Partnership (Loneragan Report, Ex 6 at [4.3.7]) and that on that same day, an amount of $80,000 was paid from The Monowai Partnership to Jill’s estate bank account (Loneragan Report, Ex 6 at [4.3.8]), then even adopting the incorrect approach, the $80,000 was more than sufficient to discharge the liability of $73,350 owed to Jill’s estate and there was no obligation on the executors of Jill’s estate to pay any further amount in relation to the Property Purchase Advance or the “Claim 3 loan”.

149. [720]

     Geoff says that Mr Loneragan reached a different conclusion in his reports because, in Mr Loneragan’s analysis of these claims in his reports, Mr Loneragan did not take into account the personal liability of $72,567.50 owed by Jill to The Springs Partnership. It is noted that Mr Loneragan accepted in cross-examination that he had not taken this liability into account (T 474.37-T 475.2; T 489.21-39).

150. [721]

     Geoff says that the issue in this claim as to the treatment of the interest of Jill’s estate in The Springs Partnership is essentially whether sufficient payments were made into Jill’s estate to satisfy any liability; and that there a number of difficulties with this claim.

151. [722]

     First, he says that Mr Loneragan has valued the interest in The Springs Partnership as at the incorrect date. It is noted that s 43 of the Partnership Act states that, subject to any agreement to the contrary, upon the death of a partner, the amount due from the surviving partners to the deceased partner’s estate is a debt accruing at the date of death and that s 42 of the Partnership Act provides that where a partner has died and the surviving partners carry on the business of the partnership without any final settlement of accounts with the deceased partner’s estate, then the deceased partner’s estate is (at its option) entitled either to such share of the profits made since the dissolution as may be found to be attributable to the use of the partner’s share of the partnership assets or to interest at the rate of 6% per annum on the amount of the partner’s share of the partnership assets.

152. [723]

     Geoff points out that Mr Loneragan does not value the s 43 debt as at the date of Jill’s death (being 21 March 2007) but, on instructions, purports to value Jill’s interest as at 15 April 2009 (see T 522.21-39). Accordingly, Geoff says that the exercise conducted by Mr Loneragan is not what is required by ss 42 and 43 of the Partnership Act. (I agree.)

153. [724]

     Second, that, in circumstances where Mr Carrigan’s evidence is that he adopted a practice of recording non-partnership assets in The Springs Partnership accounts (T 203.40-48), the statements of account cannot be said accurately to reflect the current and capital accounts of the partnership. Accordingly, and which as noted above I accept, it is said that one cannot be satisfied that Mr Loneragan’s analysis, which is reliant on the accounts, accurately reflects Jill’s interest in The Springs Partnership and its assets.

154. [725]

     Third, that Mr Loneragan accepted during cross-examination that his calculation of Jill’s interest in The Springs Partnership (Loneragan Report, Ex 6 at [4.2.52], [4.2.57]-[4.2.58]) was incorrect in at least two material respects, being that it double counted the Partnership Property Advance (both as a separate line item and as a part of the current account) and treated it as a liability of the partnership to the partners (T 528.26-39). It is said that, in order to account for Mr Loneragan’s errors in his calculation of the value (Ex 6 at [4.2.57]), it would be necessary to exclude the purported value of the livestock, the Property Purchase Advance, Hurricane Hill and improvements to Hurricane Hill and to incorporate Jill’s debt to The Springs Partnership in relation to the Property Purchase Advance (T 537.40-T 542.10).

155. [726]

     Fourth, that although the experts agree that there is no readily identifiable payment made into Jill’s estate account in relation to Jill’s partnership interest (Loneragan Report, Ex 6 at [4.2.63], [4.2.71], [4.2.77]-[4.2.80]; Samuel Report, Ex E at [240]-[241]), it does not necessarily follow that the value of Jill’s interest in The Springs Partnership was not satisfied with other moneys paid into the bank account for Jill’s estate.

156. [727]

     Geoff says that there are a number of other payments made into the estate account which, collectively, are more than sufficient to discharge any liability to Jill’s estate in respect of Claim 2, including: the amount of $36,000 that was paid from The Monowai Partnership bank account to meet a personal tax liability of Jill’s estate (which Mr Loneragan had not brought to account by recording as a drawing) (T 516.14-T 521.41); the “balancing payment” of $3,810.33 (T 545.4-T 546.35); the amount of $21,657.94, being an “overpayment” made by Bill into Jill’s estate bank account in respect of the property the subject of Claim 8; and the amount of $22,916.66, being an “overpayment” made by Bill into Jill’s estate bank account in respect of the property the subject of Claim 9. Therefore it is said (and again I accept) that it cannot be concluded that there were not otherwise sufficient payments made into the estate account to discharge any liability in respect of Jill’s interest in The Springs Partnership.

157. [728]

     As to Claim 3 (which, as will be recalled, relates to the debt which was owed by The Springs Partnership to The Monowai Partnership which, at the date of Jill’s death, was in the amount of $293,075 and which increased in quantum to $319,075 by 30 June 2007), Geoff says, in summary, that: Jill was a 50% partner in The Monowai Partnership (being the lender) and therefore was ultimately entitled to receive 50% of the loan payable by The Springs Partnership; Jill was also a 25% partner in The Springs Partnership (being the borrower) and was therefore responsible for 25% of the debt payable from The Springs Partnership to The Monowai Partnership. Accordingly, it is said (and I accept) that Jill’s net entitlement was for 25% of the loan (Mr Carrigan’s affidavit affirmed 23 June 2017 at [20]-[24]; Mr Carrigan’s affidavit affirmed 21 December 2018 at [28]-[31]; Samuel Report, Ex E at [332]-[337]).

158. [729]

     As identified by Mr Samuel, 25% of this loan was $73,350 as at 21 March 2007; and $79,768.85 as at 30 June 2007 (Samuel Report, Ex E at [335]). It is said that, on either view, the payment of $80,000 into Jill’s estate account constitutes an overpayment in respect of this liability.

159. [730]

     As noted above, I accept the submission that the relevant date for determination of what comprised Jill’s interest in The Springs Partnership (referred to in Geoff’s closing submissions at [282] as the s 43 debt) was the date of her death and that Mr Loneragan’s calculations (albeit on his instructions) do not accord with this. I also accept that Mr Samuel’s methodology of valuing the estate’s interest in The Springs Partnership by reference to the assets and liabilities of the partnership as a whole (rather than on the basis of selected assets) is the correct approach, noting the concession by Mr Loneragan as to the issues in relation to the Property Purchase Advance (see above).

160. [731]

     I am unable to accept Mr Loneragan’s “valuation” of the livestock, since that is no more than an arithmetical analysis based on assumptions as to the average sale price of the stock and it excludes cattle sold to Geoff on the assumption that these were not sales on an arms’ length basis (in terms of the substance of the transaction as opposed to the related parties involved in the transaction). Further, although this is not determinative, I accept as well-founded the criticism that the Loneragan Report in terms purports to amount to a valuation of the cattle without qualification as to Mr Loneragan’s lack of expertise in that field.

161. [732]

     For those reasons, Claims 2 and 3 are not made good.

162. [733]

     Claim 4 (at [37]-[44] of the first cross-claim) relates to the nature of the interest of Jill’s estate in Hurricane Hill. Merilyn and Bruce say that the asset was held as an asset of The Springs Partnership (though the title to that land was held in the names of Bill, Jill, Geoff and Kaye as tenants in common and, as between Bill and Jill as joint tenants (in respect of the couple’s 50% share)). Merilyn and Bruce rely for this proposition on the accounting and tax records of the partnership. They say that Mr Carrigan’s evidence does not provide any support for the contention that the land was not a partnership asset, other than the transfer record.

163. [734]

     As noted already, the contract of sale for the land was signed by all four partners as tenants in common. In the transfer document in respect of Hurricane Hill (Ex 4 at Tab 22), the “transferee” is described as follows: “William Edward Bassett, Elaine Jill Bassett as joint tenants in ½ share, Geoffrey William Bassett and Kaye Roslyn Bassett as joint tenants in ½ share”. It is not disputed that this description of the transferee in the transfer document satisfied the exception in s 26(2) of the Conveyancing Act. Merilyn and Bruce say that there is no evidence to throw light upon how the holding as joint tenants between the two couples actually came about.

164. [735]

     The deposit for the land of $20,000 was paid by The Monowai Partnership on 1 July 2005. That amount was recorded as a loan to The Springs Partnership in the ledgers of both partnerships (Loneragan Report, Ex 6 at [4.4.4]).

165. [736]

     The balance of the consideration for the land in the amount of $180,000 was deposited to The Springs Partnership’s bank account by each the four individuals who were then the partners of that partnership, being $50,000 from each of Geoff and Kaye, and $40,000 from each of Bill and Jill.

166. [737]

     The capital accounts in The Springs Partnership’s general ledgers for Bill (50101), Jill (50201), Geoff (50301) and Kaye (50401) recorded total capital contributions by each partner of $50,000 in the 2006 financial year. The date of the contributions was recorded as 12 August 2005, that being the same date as the deposit of $180,000.00 to The Springs Partnership’s bank account, apart from the deposit of $10,000 each from Bill and Jill which was noted on 1 July 2005 as the deposit for Hurricane Hill (Loneragan Report, Ex 6 at [4.4.8]).

167. [738]

     As noted above, Merilyn and Bruce place weight on the fact that the land was recorded as a partnership asset from the time of its purchase and was treated for accounting purposes as an asset of the partnership. Reference is made to the letter dated 7 May 2007 from Mr Carrigan to Borthwick & Butler Solicitors, after Jill’s death, stating that (Bruce’s affidavit sworn 26 April 2018 at [38]; Ex 5 at 376):

168. [739]

     Merilyn and Bruce say that there is no evidence of any agreement that Hurricane Hill would not be a partnership asset. (I note, however, that the assertion made by Merilyn and Bruce is that it is a partnership asset.) It is noted that Mr Carrigan gave the following evidence (T 211.12-7):

169. [740]

     It is not disputed that, on Jill’s death, her interest in Hurricane Hill was treated as if it were transmitted to Bill by survivorship. Merilyn and Bruce say that that share of the land remains held by the executors of Bill’s estate in specie; and that, properly treated under the law of partnership, at Jill’s death and the resulting dissolution of The Springs Partnership, her one-quarter interest in Hurricane Hill should have been transferred into residue and paid or transferred to the residuary beneficiaries.

170. [741]

     Merilyn and Bruce make reference to authority for the proposition that partnership assets, absent clear evidence to the contrary, are presumed to be held as tenants in common despite the legal title, namely Delehunt v Carmody (1986) 161 CLR 464 at 471 where Gibbs CJ said:

171. [742]

     Merilyn and Bruce note that in Malayan Credit Ltd v Jack Chia-MPH Ltd [1986] AC 549 at 560, Lord Brightman said that:

172. [743]

     Merilyn and Bruce also point to s 20 of the Partnership Act which provides:

173. [744]

     Claim 4, as pleaded, thus turns in essence on whether Hurricane Hill was held by each of the four owners for use as an asset in the conduct of The Springs Partnership business (such that Bill and Jill held their share as registered proprietors as joint tenants on trust for each other with the result that Jill’s interest in the land would not be extinguished upon her death (first cross-claim at [39])); or whether, by virtue of s 20(2) of the Partnership Act, each of the four partners of The Springs Partnership had a one-quarter beneficial interest in Hurricane Hill (first cross-claim at [40]).

174. [745]

     Merilyn and Bruce say that Jill’s share of Hurricane Hill should be transferred to Jill’s estate. They say that the residuary beneficiaries have suffered a loss at the hands of the executors of Jill’s estate (including Geoff), by the executors’ use of the land in their farming partnership from 2009 until Bill’s death in 2014 and their failure to collect this asset for Jill’s estate. Additionally, Merilyn and Bruce say that if they succeed on this ground, then Bill’s estate is reduced by the value of Jill’s share of Hurricane Hill and is thus unavailable for Geoff’s claims in both the proprietary estoppel claim, in which a transfer of, inter alia, Hurricane Hill is sought, and the alternative family provision claim.

175. [746]

     Geoff contends (for the reasons set out earlier) that Claim 4 is not maintainable against him but nevertheless makes the following submissions in relation to this claim.

176. [747]

     Geoff submits that Hurricane Hill was not an asset of The Springs Partnership. Rather, he says that The Springs Partnership was concerned with, inter alia, the working of that land and not its ownership (see, for example, Harvey v Harvey). It is said that the fact that Hurricane Hill appears in The Springs Partnership accounts as a “non-current asset” does not disturb this conclusion (for example, see Ex 4 at Tab 21), noting that Mr Carrigan is the person who made these entries in The Springs Partnership’s financial accounts and pointing to Mr Carrigan’s evidence that he adopted his usual practice when making this entry (Carrigan’s affidavit affirmed 21 December 2018 at [5]; T 202.31-T 204.31).

177. [748]

     Geoff has given evidence in his affidavit sworn 18 October 2018 (at [65]-[66]) of what are said to be two critical conversations that he had with Bill and Jill prior to the purchase of Hurricane Hill. First, a conversation that:

178. [749]

     Second, a further conversation a few days later with Bill:

179. [750]

     It is said that Geoff’s evidence concerning the above conversations is supported by what appears on the transfer document for Hurricane Hill. First, that the transfer describes the “transferee” in a manner which is consistent with the terms of the above discussions. Second, and I place some significance on this, that the words “as joint tenants in ½ share” have been written in by hand. Geoff says that this is suggestive of the instructions concerning the joint tenancy having been provided at a later date to the initial instructions concerning the purchase of the land (i.e., after the initial conversation about the acquisition occurred).

180. [751]

     It is said that this case is analogous to Harvey v Harvey, where the majority (Menzies and Walsh JJ) found that the land in question was not a partnership asset primarily on the basis that, immediately prior to the formation of the partnership, the owner of the land had orally evinced an intention to retain his land for the benefit of his son.

181. [752]

     It is submitted that, in the present case, it is plain that neither married couple wanted to contribute the land to the partnership (such that, if any of them died, the deceased’s beneficial interest would subsist); rather, that it was their express intention that they wanted “to buy [the] share” in Hurricane Hill in a manner such that, if any of them died, the deceased partner would obtain the deceased’s share, which was to be effected through survivorship pursuant to a joint tenancy. It is said that, if the deceased’s interest subsisted in the property following death, it would defeat the purpose of the commercial arrangement discussed during the conversation to which Geoff has deposed regarding the acquisition of the property. Further, it is said that the fact that Hurricane Hill appears in The Springs Partnership accounts as a “non-current asset” does not disturb this conclusion.

182. [753]

     Insofar as the position of Merilyn and Bruce is that partnership funds were used for the purchase of Hurricane Hill (see Loneragan Report, Ex 6 at [4.4.1]-[4.4.11]), Geoff’s evidence is that he had a conversation with Bill concerning the manner in which the purchase of Hurricane Hill would be financed, which was to the following effect (Geoff’s affidavit sworn 18 October 2018 at [69]):

183. [754]

     It is noted that Bill and Jill paid their share of the cash contribution to the property, being $100,000, out of The Springs Partnership bank account. Geoff and Kaye paid their share of the contribution out of their own partnership bank account (being the GW & KR Bassett Partnership bank account) into The Springs Partnership account (see Geoff’s affidavit sworn 18 October 2018 at [71] and see the cheque butt dated 12 August 2005, Ex C at 415).

184. [755]

     In any event, Geoff says that the mere fact that partnership money is expended on an asset does not mean that that asset necessarily becomes partnership property if a contrary intention can be found, either expressly or by inference from the partners’ actions (citing Kelly v Kelly). It is said that this is apparent from the terms of s 21 of the Partnership Act which provides that “[u]nless the contrary intention appears, property bought with money belonging to the firm is deemed to have been bought on account of the firm”. It is submitted that it was the parties’ intention that Hurricane Hill did not form part of the assets of The Springs Partnership.

185. [756]

     Geoff thus submits that Merilyn and Bruce have not discharged their onus of establishing that Hurricane Hill became partnership property (Harvey v Harvey at 549; [29] per Barwick CJ).

186. [757]

     Geoff says that the alternative legal construction is that the partners in The Springs Partnership had reached an agreement as to how their respective interests in Hurricane Hill would devolve in circumstances where one of them died. Geoff submits that, even if Hurricane Hill was partnership property, the evidence of the conversations with Bill (see Geoff’s affidavit sworn 18 October 2018 at [65]-[66]) (the effect of which was that they intended that if something happened to either spouse in one of the two couples, the other spouse would hold the whole of the half-share) amounts to an agreement as to how the interests in Hurricane Hill were to be dealt with. Further, Geoff submits that this evidence is supported by what appears on the transfer for Hurricane Hill.

187. [758]

     Moreover, it is noted that Bill continued to hold his interest in Hurricane Hill as at the date of his death and hence it is said that Merilyn and Bruce (together with Sue) will receive this interest in any event pursuant to their right to receive the residue of Bill’s estate (though, of course, this is subject to the outcome of Geoff’s family provision application, since there is a potential disparity in outcome between the interest being held in Jill’s estate – not the subject of the family provision claim; and the interest being held in Bill’s estate – which is the subject of the family provision claim).

188. [759]

     Having regard to Mr Carrigan’s evidence, which I accept, I am not persuaded that reliance can be placed on what appears in the accounting records of The Springs Partnership as determinative of the question whether Jill’s interest in Hurricane Hill was held by her in her own right as at the date of her death or whether it had been contributed by her notionally to the partnership and hence was an asset of the partnership.

189. [760]

     I accept that caution must be placed on accepting Geoff’s evidence of his conversations with Bill (and Jill) at the time of the acquisition of Hurricane Hill. However, to my mind, the handwritten amendment to the transfer document does support Geoff’s account of the relevant conversations and there is an underlying logic to each couple’s share in the property passing by way of survivorship to the other rather than being partnership property such that the deceased partner’s interest (here, that of Jill) subsisted after his or her death.

190. [761]

     In any event, to the extent that I am left in doubt as to whether the asset was contributed to the partnership (as opposed to being used by the partnership), as indeed ultimately I am, then Jill’s estate has not established on the balance of probabilities that Jill’s interest in this asset was held as a partnership asset.

191. [762]

     Therefore, even apart from the fact that I accept that there can be no claim falling within s 47(1)(c) of the Limitation Act against Geoff in relation to this asset, I would dismiss Claim 4.

192. [763]

     Claim 5 (at [45]-[50] of the first cross-claim) arises out of Jill’s 25% share of The Springs, which interest formed part of the residue of Jill’s estate (to which Merilyn, Sue and Bruce are entitled).

193. [764]

     There is no dispute that, after Jill’s death, Bill proposed to the residuary beneficiaries that they convey Jill’s share of the land to him, for an agreed consideration of $250,000. (Geoff says that there is no suggestion that he, Geoff, ever expressed a view to Merilyn and Bruce concerning the value of this land (see T 335.3-9).)

194. [765]

     On 22 May 2008, Bill and Geoff (in their capacity as executors of Jill’s estate), on the one hand, and Merilyn, Sue and Bruce (as residuary beneficiaries), on the other, executed a Transmission Application pursuant to which Jill’s interest in The Springs was transferred from Jill to Bruce, Merilyn and Sue (Sue’s affidavit sworn 22 July 2015, Ex A at 143). On the same day, Merilyn, Bruce and Sue transferred their interest in The Springs to Bill pursuant to a transfer which listed the consideration as $250,000 (Sue’s affidavit sworn 22 July 2015, Ex A at 145).

195. [766]

     Merilyn and Bruce’s complaint in this regard is that only $200,000 was paid into Jill’s estate bank account. Merilyn and Bruce say that this land was contributed to the joint partnership of the executors after Jill’s death, and that Geoff, as the surviving executor (and an executor of Bill’s estate), is liable to make good the balance of $50,000 to the residuary beneficiaries.

196. [767]

     Additionally, it is said that Bill did not disclose to the residuary beneficiaries, at the time of requesting the conveyance to him of Jill’s estate’s share in The Springs, that the estate’s share of The Springs was worth more than $250,000. Reference is made to an estate valuation or appraisal as at 22 May 2008 (but dated later than that – 29 June 2008) from Robert Lea (Ex 5 at 212-3), which showed the value of the estate’s interest in the land as being worth $360,125 (2008 Lea Valuation). It is submitted that, in light of the executors seeking a transfer of the share of The Springs at an undervalue to an executor, they acted in breach of their duties, and caused the estate loss and damage; and that Geoff, as the surviving executor, is liable to make good the damage to the beneficiaries.

197. [768]

     Merilyn and Bruce say that Bill asked the residuary beneficiaries, around the time of Jill’s death, if they would transfer their interest in the one-quarter share of The Springs to him, and they agreed. It is said that on 19 and 23 December 2007, Bill paid a total of $500,000 for “property purchase” into Jill’s estate account, which included $300,000 noted as the consideration for two undeveloped lots Bill purchased from the estate (Claim 10) (Loneragan Report, Ex 6 at [4.1.2]).

198. [769]

     Bruce’s evidence is that at the time of signing the documentation for that transfer, in May 2008, Bruce asked his father whether the $250,000 shown in the transfer record was the value of the land and was told that “it’s pretty close” but that “it will be coming back to you and the girls anyway when I’m gone” (Bruce’s affidavit sworn 28 September 2015 at [103]). The property was transmitted to the beneficiaries and immediately thereafter transferred to Bill.

199. [770]

     The transmission and the transfer are dated 22 May 2008. Stamp duty, noted on the transfer record, was paid on the transfer at a value of $360,125.00 for the one-quarter share of The Springs (in reliance upon the 2008 Lea Valuation).

200. [771]

     It is noted that Geoff has admitted that Bill elected to pay the consideration for the land into Jill’s estate bank account, rather than to the beneficiaries (see at [312] of his closing submissions).

201. [772]

     Merilyn and Bruce say that, as the beneficiaries agreed to transfer the land, and the moneys were payable and were paid in part by Bill into the estate of Jill, it does not matter that the method of transfer was from the beneficiaries to Bill. They say that the executors had a duty to ensure that the estate was properly administered. Furthermore, it is noted that Geoff says that he and Bill made an agreement shortly after Jill’s death to continue farming on The Springs land (Geoff’s affidavit sworn 18 October 2018 at [43]) (and therefore that they had a personal interest in the acquisition of the asset) and complaint is made that they did not reveal to the beneficiaries the true value of the land to which they, as executors, had access, or which they may have been expected to have known as co-owners of the land.

202. [773]

     It is said that, in electing to pay the moneys into the estate bank account instead of directly to the three beneficiaries, Bill engaged with Jill’s estate rather than treating this as a private purchase after the transmission. It is said that, having paid the estate for the share of The Springs, Bill could have enforced a transfer of the land in equity; and that he was the equitable owner of the land prior to the formal process of transmission to the beneficiaries and then the transfer to him.

203. [774]

     Merilyn and Bruce say that the approach adopted by Geoff is one of form over substance. They maintain that the purchase of Jill’s share of The Springs was a purchase by Bill from the estate, and that proper consideration therefor was not paid. It is noted that the ledgers prepared for Jill’s estate by Mr Carrigan (for the period 1 July 2007 to 30 June 2008) reveal that only $200,000 was paid by Bill to Jill’s estate, from the consideration of $250,000 noted on the transfer record dated 22 May 2008 (Ex 6, Tab HL-6 at [2.3.1]).

204. [775]

     It is noted that, despite this, in his Summary of Account, annexed to his letter dated 13 January 2015 (Ex 4 at Tab 7), Mr Carrigan stated that $280,000 was paid for “The Springs [land] and Partnership”, which Merilyn and Bruce say appeared to suggest that the consideration of $250,000 noted on the transfer record for The Springs had been paid. Merilyn and Bruce point to Mr Carrigan’s evidence in cross-examination that, in fact, no consideration was paid to Jill’s estate for her interest in The Springs Partnership, and that he was aware that Bill also did not pay the consideration for The Springs (T 227.3-16):

205. [776]

     Pausing here, the above evidence does not to my understanding amount to a concession that no consideration was paid to Jill’s estate for her share in The Springs; rather simply that there was no evidence that more than $200,000 was paid to her estate.

206. [777]

     It is submitted that, given the level of stamp duty paid (for a transfer at a value of $360,125.00 as shown on the transfer record dated 22 May 2008), it can be inferred that the land was worth more than the $200,000 which was paid as consideration (and more than the $250,000 which was stated on the transfer). Alternatively, it is said that Bill’s estate should be liable for the shortfall from the agreed consideration of $250,000.

207. [778]

     For the same reasons referred to earlier, Geoff contends (and I accept) that Claim 5 is not maintainable against him. Again, notwithstanding this, the following submissions are made in relation to this claim.

208. [779]

     Geoff accepts that the evidence suggests that Bill may have underpaid Bruce, Merilyn and Susan by $50,000 (in respect of the amount Bill agreed to pay for the acquisition of Jill’s interest in The Springs). He says that it appears that Bill may have sought to discharge his liability to the residuary beneficiaries by transferring $200,000 into Jill’s estate account and then dividing that between the three of them as part of the residue; although he says that there is no evidence as to why this method was adopted (assuming, as to which he accepts there is no direct evidence, that this payment related to the purchase of Jill’s interest in The Springs).

209. [780]

     Geoff points out that there was no single amount of $200,000 paid into Jill’s estate account (Ex 6, Tab HL-6 at [3.3.1]); rather, what occurred was that Bill paid two relevant amounts in December 2007 into Jill’s estate bank account: one of $375,000 and one of $125,000, the respective cheque stubs bearing the annotation “Property Purchase” (Ex 6, Tab HL-6 at [3.5.6]). The transmission from the estate to Sue, Bruce and Merilyn, and the transfer from the residuary beneficiaries to Bill occurred, as already noted, in May 2008 (Ex A at 143, 145). At some later time, journal entries were made in respect of the deposits (as “One Quarter Share ‘The Springs’”) but it is noted that these recorded incorrect dates (namely November 2007 not December 2007) (Ex 6, Tab HL-6 at [2.3.1]).

210. [781]

     Geoff says that Merilyn and Bruce do not, however, make any claim in respect of the $50,000 deficit; rather, that their contention (first cross-claim at [50]) is that there was a failure on the part of the executors of Jill’s estate to collect the unpaid balance of the consideration owed for The Springs, which they calculate at $160,125 by reference to the 2008 Lea Valuation (conducted as at 22 May 2008) which shows the value of Jill’s estate’s interest in The Springs to be $360,125. (Pausing here, the amount of any uncollected consideration can be no more than $50,000 since the agreed consideration was only $250,000, not the sum of $360,125. If the claim, properly understood, is that Geoff and Bill failed in their duties as executors to obtain the proper value of Jill’s interest – which suffers in any event from the fact that it was simply transmitted in specie to the residuary beneficiaries – then that would be a claim in devastavit; and any such claim has been disclaimed by Merilyn and Bruce.)

211. [782]

     It is further alleged by Merilyn and Bruce (in the reply at [4]) that: Geoff and Bill misrepresented to Bruce that Bill would pay $250,000 for the residuary beneficiaries’ interest in The Springs; that $250,000 was around the value of the interest in The Springs; that Merilyn and Bruce relied on the representation (notwithstanding, Geoff says, that the representation as pleaded was only said to have been made to Bruce); that the share of The Springs was worth $360,125 in accordance with the 2008 Lea Valuation (conducted on 22 May 2008); and that it would be unconscionable for Geoff to resist the claim made by Merilyn and Bruce for the “proper value” of The Springs to be paid to them.

212. [783]

     Geoff submits that this claim fails for the following reasons; principally being that (as adverted to above) Geoff and Bill discharged their duties as executors by transferring the interest in The Springs to Bruce, Merilyn and Sue pursuant to the transmission application. It is noted that the sale of Jill’s interest in The Springs to Bill occurred after the asset had been distributed out of the estate and it is said that this was a private transaction unrelated to the administration of the estate (and hence no breach of executorial duties). Second, it is noted that there is no suggestion in the evidence that Geoff (as opposed to Bill) made any representations to Merilyn and Bruce concerning the value of The Springs.

213. [784]

     Third, Geoff says that Bruce’s own evidence shows that he had knowledge of the fact that the interest in The Springs land was worth in excess of $250,000 but, nonetheless, he chose to proceed with the transaction (Bruce’s affidavit sworn 28 September 2015 at [103]); c.f. Edwina’s affidavit sworn 28 September 2015 at [38]). It is noted that, on Bruce’s account, Bruce asked Bill: “[s]o Dad, is this the market value of the land?”, being a reference to the proposed $250,000 consideration, to which Bill replied: “[i]t’s pretty close. But don’t worry, it will be coming back to you and the girls anyway when I’m gone” (Bruce’s affidavit sworn 28 September 2015 at [103]).

214. [785]

     Fourth, it is noted that the land appraisal relied on by Merilyn and Bruce was not admissible (nor was it so admitted) as expert evidence of the true value of the land (see the evidentiary ruling made in respect of Exhibit 5 at T 259.4-19); but, rather, the appraisal was admitted as evidence of what documents were before the executors for the purposes of the administration of the estate. Accordingly, it is said that there is no evidence of the value of The Springs on or around 22 May 2008. Further, it is noted that the 2008 Lea Valuation (though conducted as at 22 May 2008) is dated 29 June 2008, over a month after Sue, Merilyn and Bruce sold their interest in The Springs to Bill. Accordingly, it is submitted that Bill could not have had knowledge of the 2008 Lea Valuation as at the date he agreed to the $250,000 purchase price. (As to this, I accept that the 2008 Lea Valuation bears a later date but it may be, though this is no more than speculation, that Bill had been given an indicative valuation at an earlier time – what is not clear is when, or how, the stamp duty could have been determined by reference to a later valuation if it was not known at the time.)

215. [786]

     The difficulty with this claim (apart from the fact that it is not maintainable against Geoff since he did not receive trust property or the proceeds of trust property in respect of this asset), and leaving aside the pleading issue as to the fact that the claim is not explicitly directed to the apparent deficit of $50,000, is that there was clearly a transmission from the estate of Jill’s interest in The Springs to the residuary beneficiaries (which discharged the executors’ duties in that regard). It was a matter for the residuary beneficiaries how they chose to deal with that asset. I do not accept the submission that Geoff’s principal argument in this regard is a matter of form over substance – he has correctly noted the substance of the transaction that occurred. Bill did not acquire Jill’s interest in The Springs from the estate – he acquired it from the residuary beneficiaries to whom it had been bequeathed by Jill as part of the residue of her estate.

216. [787]

     Therefore, the complaint that the executors transferred the interest at less than its true value has no relevance (even if it were to be established – and I am by no means satisfied that it has been – that Bill was on notice of the 2008 Lea Valuation at the relevant time). No representation is established as having been made by Geoff at all in relation to the value of The Springs. Nor is any misrepresentation claim made against Bill’s estate as such; rather, the allegation of misrepresentation is pleaded in the reply as rendering it unconscionable for Geoff (as to whom there is no evidence of any misrepresentation) to resist this claim. As noted, there is nothing to establish that Bill knew of the 2008 Lea Valuation at the relevant time (and Bruce’s evidence of the conversation with Bill makes clear that Bill was not purporting to state what he thought to be the actual value of the interest) let alone that Bill conveyed anything of this kind to Geoff.

217. [788]

     As to the manner in which the consideration was paid, it is unclear why Bill appears to have paid money for the property purchase to the estate, rather than directly to the beneficiaries, but there is no suggestion that the residuary beneficiaries did not ultimately receive their proper share of those funds in Jill’s estate as part of the residue.

218. [789]

     I accept that the experts have been unable to identify a payment of $50,000 as such into the estate bank account (simply two payments in December 2007 recorded as “property purchase” and totalling $500,000); and obviously Bill is not now alive to shed light on this (a problem relevant to the defence of laches). In any event, and again leaving aside the pleading issue, any deficit in the purchase price is not a claim maintainable on behalf of Jill’s estate, since it is clear on the face of the contemporaneous documents that the vendors were the residuary beneficiaries.

219. [790]

     Accordingly, Claim 5 fails.

220. [791]

     Claim 6 (at [51]-[58] of the first cross-claim) arises out of Jill’s interest in The Monowai Partnership.

221. [792]

     At [51] of the first cross-claim, it is alleged that, as at the date of Jill’s death, Jill was the owner of a share with Bill, as tenant in common, “of an investment business known as the ‘Monowai Pastoral Co’ partnership” (relying, as noted earlier, on the presumption that partnership assets are owned as tenants in common); and, at [53] of the first cross-claim, it is alleged that on Jill’s death the executors treated Jill’s interest in the The Monowai Partnership as property owned by her as a joint tenant with Bill and transmitted her interest in the partnership to Bill “purportedly pursuant to survivorship, and for no consideration”.

222. [793]

     Merilyn and Bruce allege that, as at the date of Jill’s death, The Monowai Partnership had invested in various shares, managed investments and other financial products (see the particulars to [52] of the first cross-claim) including “time share” assets in respect of two Holiday Village Time Share resorts (at Korora Bay and Boambee Bay), all of which investments I refer to collectively as the Claim 6 Assets. Geoff says (and I do not understand it to be disputed) that many of these Claim 6 Assets (or the proceeds from the disposal of these assets) form part of the residue of Bill’s estate to which Merilyn and Bruce (together with Sue) are entitled as residuary beneficiaries. Merilyn and Bruce say that Jill’s share of these partnership investments was worth $275,078.13.

223. [794]

     It is noted that these assets were recorded as assets of The Monowai Partnership; they were recorded in the books, ledgers and returns of that partnership; and they were treated as assets of the partnership for tax and accounting purposes. The experts agree that these assets were purchased with funds of The Monowai Partnership; the income received from the investments were included in the returns of the partnership; and the assets were treated as assets of the partnership for accounting and taxation purposes (Samuel Report at [397]-[398]).

224. [795]

     Merilyn and Bruce say that Geoff’s denial of this claim relies on Mr Carrigan’s evidence as to his “usual practice” (in respect of the treatment, for accounting purposes, of assets held by couples running a farming business in partnership); and they submit that this evidence should not be used to determine that the assets are joint assets. They point to Mr Carrigan’s acknowledgement that a number of the Claim 6 Assets were part of The Monowai Partnership investments from an accounting perspective (T 232.13-38). It is said that the clear and consistent accounting and taxation treatment of the assets as partnership property should be sufficient grounds for it comfortably to be found that they are partnership assets (Merilyn and Bruce here referring to Yazbek v Commissioner of Taxation (2014) 98 ATR 943; [2014] AATA 423).

225. [796]

     Merilyn and Bruce say that the assets held by The Monowai Partnership should have been conveyed to the residuary beneficiaries of Jill’s estate. They say that, because of the failure of the executors to collect these investment assets for Jill’s estate, the residuary beneficiaries have not received the benefit of the intermediate income of those assets, nor the ability to realise capital when needed. It is noted that a number of the assets were redeemed following Bill’s death, some shareholdings went into liquidation, and others passed into Bill’s estate, where they form part of the residue and so are subject to Geoff’s claim for further provision. Merilyn and Bruce say that the investment assets of The Monowai Partnership should be regarded as assets of Jill’s estate and treated accordingly. (Pausing here, so far as the complaint concerns the failure of the executors to collect assets for the estate, again this appears on its face, at least against Geoff, to be a claim in devastavit which Merilyn and Bruce have disavowed – due to the limitations problem.)

226. [797]

     Again, for the reasons already identified, Geoff says that Claim 6 is not maintainable against him but he also makes the following submissions in relation to this claim. It is said that the only real issue on the pleadings in this respect is the allegation that the Claim 6 Assets were assets of The Monowai Partnership (as to which Merilyn and Bruce bear the onus).

227. [798]

     Geoff submits that, although each of the Claim 6 Assets was recorded in The Monowai Partnership records, the Claim 6 Assets were not assets of The Monowai Partnership. In addition to the evidence of Mr Carrigan (as to his practice and his explanation for why the assets were recorded in this way), and the submission that it is inherently improbable that assets of this kind would be held in a partnership, Geoff gives evidence that, during the course of a discussion concerning the structure for Hurricane Hill (to which both Bill and Jill were a party), Jill stated that “[w]e have bought some shares and term deposits together in a way that lets the other one inherit the lot, if one of us dies. We want to make sure whoever is left has plenty of money and investments” (Geoff’s affidavit sworn 18 October 2018 at [65]). Geoff says that although the Claim 6 Assets were not expressly identified in this conversation, it can readily be inferred that these were the assets to which Jill was referring (on the basis that there are no other assets to which Jill could have been referring).

228. [799]

     Accordingly, Geoff submits that Merilyn and Bruce have not discharged their onus in proving that the Claim 6 Assets were partnership assets. Alternatively, Geoff submits that Bill and Jill had reached an agreement as to what would happen to those assets if one of them passed away (that is, that the deceased person’s interest would not subsist). If those submissions are not accepted, then Geoff says that the remaining issues concerning the Claim 6 Assets (noting that each of the Claim 6 Assets was transferred solely into Bill’s name following Jill’s death) are as to: first, the value of the assets as at the date of Jill’s death; and, second, whether the assets are still held in Bill’s estate and form part of the residue to which the residuary beneficiaries are entitled (such that Merilyn and Bruce are here seeking double recovery).

229. [800]

     It is noted that the experts disagree as to the value of the Claim 6 Assets: Mr Loneragan values a half share in the assets at $275,078 (Loneragan Report at [4.6.88]); Mr Samuel values the half share at $236,985 (Samuel Report at [404]-[421]). Geoff makes the following submissions as to each of the Claim 6 Assets.

230. [801]

     The Claim 6 Assets include three accounts held with Colonial First State (see Ex 6, Tab HL-6 at [4.4.2]) (the Colonial Accounts).

231. [802]

     It is noted that the inventory of property filed in connection with the application for probate of Bill’s estate discloses that Bill still held each of the Colonial Accounts as at the date of his death (Sue’s affidavit sworn 22 July 2015, Annexure B). Geoff says that the Colonial Accounts form part of the residue of Bill’s estate and, accordingly, the residuary beneficiaries (including Merilyn and Bruce) will receive these assets from Bill’s estate.

232. [803]

     The disagreement between the experts as to the value of the assets comprised by the Colonial Accounts (see Samuel Report at [407]-[410]; Loneragan Report at [4.6.88]) derives from a dispute concerning the relevant date at which the assets are to be valued. Mr Loneragan adopted the valuation date of 21 May 2007 (which is the date of a letter sent from Colonial to Borthwick & Butler in which the values are stated and which contains an erroneous reference to this as being the date of Jill’s death (see Mr Loneragan’s acknowledgment at [4.6.88] (Note 3)), valuing the assets at $199,674.35 (Loneragan Report at [4.6.88]; Ex 6, Tab HL6 at [4.4.2]). Mr Samuel has adopted the date on which the assets were transferred into Bill’s name (3 July 2007) (Ex 6, Tab HL-6 at [4.4.2]), valuing them at $188,814.35 (Samuel Report at [407]-[410]). However, Mr Samuel adopted the same value for the Future Leaders Fund as that adopted by Mr Loneragan as Mr Samuel did not have the unit price for that fund as at 3 October 2007 (which Mr Samuel considered to be the transfer date for the Future Leaders Fund).

233. [804]

     Also included in the Claim 6 Assets are three investments (being shares) held in special purpose vehicles which were capital guaranteed by Westpac (referred to in Geoff’s submissions as the First Man Investment, the Second Man Investment, and the Third Man Investment).

234. [805]

     It is noted that the inventory of property in respect of Bill’s estate discloses that Bill still held the Second Man Investment and Third Man Investment as at the date of his death (Sue’s affidavit sworn 22 July 2015, Annexure B); and, again, it is said by Geoff that these assets form part of the residue of Bill’s estate and the residuary beneficiaries (including Merilyn and Bruce) will receive these assets from Bill’s estate as part of the residue. Geoff says that Merilyn and Bruce, in their evidence, have not accounted for what happened to the realised proceeds of the First Man Investment; and, accordingly, it is said that it is unclear the extent to which (but there is a chance that) the value of these realised proceeds form part of the residue of Bill’s estate (to which the residuary beneficiaries, including Merilyn and Bruce, are entitled).

235. [806]

     The experts agree upon the value of these investments (although they adopt a different valuation date) (Samuel Report, Ex F at Annexure 2).

236. [807]

     The Claim 6 Assets also include an investment made by Bill and Jill in AWB Limited shares (the AWB shares).

237. [808]

     The experts disagree as to the value of the AWB shares (Samuel Report at [411]-[412]; Loneragan Report at [4.6.88]); that disagreement again deriving from a dispute as to the relevant date at which the shares are to be valued. Mr Loneragan has adopted the valuation date of 16 August 2007 (being the date of probate), valuing the AWB shares at $16,328.18 (Loneragan Report at [4.6.88]); whereas Mr Samuel has adopted the date on which the assets were transferred into Bill’s name (26 September 2007), valuing the shares at $15,687 (Samuel Report at [411]-[412]; Ex F at Annexure 2).

238. [809]

     The Claim 6 Assets also include a number of Telstra Corp Ltd and Telstra 3 shares (see items 8 and 11 of the particularised Claim 6 Assets at [52] of the first cross-claim).

239. [810]

     As to the 2,440 “Telstra Corp Ltd” shares (item 8), the experts disagree as to the value of the shares, the disagreement again turning on the relevant valuation date to be adopted. Mr Loneragan values the shares as at the date of probate (16 August 2007) at $10,418.80 (Loneragan Report at [4.6.88]) whereas Mr Samuel values the shares as at the date Jill’s interest in the shares was transferred to Bill (2 October 2007) at $10,687.00 (which, it is noted, is a higher value than that reached by Mr Loneragan) (Samuel Report at [411]-[412]).

240. [811]

     As to the 3,600 Telstra 3 shares (item 11), it is said that these were in fact instalment receipts and not shares (see below). The experts again disagree as to the value of the Telstra 3 shares. It is noted that, in valuing the Telstra 3 shares, Mr Loneragan has proceeded on the assumption that the interest held by Bill and Jill (as at the date of Jill’s death) was equivalent to full ownership of the Telstra 3 shares; whereas Mr Samuel has identified that the Telstra 3 shares in fact constituted a “Telstra Instalment Receipt” which would only convert into a Telstra share upon the payment of a further instalment (see Geoff’s affidavit sworn 18 October 2018 at [125]-[128]; Ex C at Tab 46). Mr Samuel has further identified that the Telstra Instalment Receipts were publicly listed under a separate ASX ticker (being TLSCA) and has valued the asset based on that quoted price at $10,584 (Samuel Report at [418]-[419]; Ex F at Annexure 2); whereas Mr Loneragan values the shares (assuming that Bill and Jill held shares) at $15,372 (Loneragan Report at [4.6.88]).

241. [812]

     It is noted that the inventory of property for probate purposes in respect of Bill’s estate discloses that Bill still held 6,382 shares in Telstra as at the date of his death (Sue’s affidavit sworn 22 July 2015, Annexure B). It is said that these assets form part of the residue of Bill’s estate and, accordingly, the residuary beneficiaries (including Merilyn and Bruce) will receive these assets from Bill’s estate.

242. [813]

     The Claim 6 Assets include 11,504 shares held as at the date of Jill’s death by Bill and Jill in City Pacific Limited (the City Pacific shares).

243. [814]

     The experts disagree as to the value of the City Pacific shares (Samuel Report at [411]-[412]; Loneragan Report at [4.6.88]); that disagreement again concerning the relevant date at which the shares are to be valued. Mr Loneragan has adopted the valuation date of 16 August 2007 (the date of probate) and valued the City Pacific shares at $43,485.12 (Loneragan Report at [4.6.88]); whereas Mr Samuel has adopted the date on which the assets were transferred into Bill’s sole name (23 October 2007) and valued the shares at $43,945 (again it is noted that this is a higher value than that adopted by Mr Loneragan) (Samuel Report at [411]-[412]; Ex F, Annexure 2).

244. [815]

     It is noted that the inventory of property for probate purposes in respect of Bill’s estate discloses that an administrator was appointed (presumably to City Pacific) and that the City Pacific shares had a nil value at the date of Bill’s death (Sue’s affidavit sworn 22 July 2015, Annexure B).

245. [816]

     The Claim 6 Assets also include 24,590 shares held as at the date of Jill’s death by Bill and Jill in Indigo Pacific Capital Ltd (the Indigo Pacific Capital shares).

246. [817]

     The experts again disagree as to the value of the Indigo Pacific Capital shares (Samuel Report at [411]-[412]; Loneragan Report at [4.6.88]); that disagreement arising from a dispute concerning the relevant date at which the Indigo Pacific Capital shares are to be valued. Mr Loneragan has adopted the valuation date of 16 August 2007 (the date of probate) and valued the shares at $64,843.83: Loneragan Report at [4.6.88], whereas Mr Samuel has adopted the date on which the assets were transferred solely into Bill’s name (26 September 2007) and valued them at $17,213 (Samuel Report at [411]-[412]); Ex F, Annexure 2).

247. [818]

     It is noted that the inventory of property for probate purposes in respect of Bill’s estate discloses that Indigo Pacific Capital Ltd “has been deregistered and in the hands of an Administrator” Sue’s affidavit sworn 22 July 2015, Annexure B).

248. [819]

     Finally, the Claim 6 Assets include interests held by Bill and Jill, as at the date of Jill’s death, in timeshare schemes known as the Korora Bay timeshare and the Boambee Bay timeshare.

249. [820]

     The experts again disagree as to the value of these assets. Mr Loneragan’s evidence is that he did not have any evidence as to the market value of the time share assets and, accordingly, he adopted the values as per the ledger of The Monowai Partnership as at 21 March 2007 (Loneragan Report at [4.6.88]); whereas Mr Samuel relies on Geoff’s evidence concerning attempts by Geoff and Sue to sell the timeshare interests. Relevantly, Geoff’s evidence is that both timeshare interests were advertised for sale by Geoff and Sue and that those advertisements did not generate any enquiries and they were unable to sell the interests. The resorts refused to buy back the interests (Geoff’s affidavit sworn 8 June 2017 at [467]-[470]). It is said that the interests were not generating any income and were a liability in the sense that they carried an obligation to pay maintenance fees of about $700 per year.

250. [821]

     The Korora Bay timeshare was ultimately returned to Korora Bay Village for nil consideration (with the consent of Bruce and Merilyn) (Geoff’s affidavit sworn 8 June 2017 at [471]-[472]). The Boambee Bay Resort refused to accept the return of the timeshare (for nil consideration) and would not assist with selling the timeshare (Geoff’s affidavit sworn 8 June 2017 at [473]-[475]). The Boambee Bay timeshare was ultimately sold for $500. In relation to the sale, the vendors incurred fees in the amount of $500 (Geoff’s affidavit sworn 18 October 2018 at [135]-[140]; Ex C, Tabs 52 and 53). In the circumstances, Mr Samuel regards it as reasonable to attribute a nil market value to the timeshare interests (Samuel Report at [421]); and it is submitted that this is the correct approach.

251. [822]

     The experts agree that there does not appear to be any identifiable payment into Jill’s estate bank account in relation to the Claim 6 Assets (Loneragan Report at [4.6.89]); Samuel Report at [425]).

252. [823]

     In the absence of any evidence that Geoff received these assets or the proceeds thereof, no claim arises that would fall within s 47(1)(c) of the Limitation Act as against Geoff.

253. [824]

     As to the proposition for Geoff that it is inherently unlikely that these investment assets were partnership property, I cannot draw that conclusion; and, again, I note that I must exercise caution in accepting Geoff’s account of conversations with his deceased parents. Nevertheless, I also cannot be confident (having regard to Mr Carrigan’s evidence which I accept) that reliance can be placed on the description of these assets as partnership assets in the relevant accounts.

254. [825]

     I have concluded that the onus has not been discharged of establishing that these are partnership assets. Had I concluded otherwise, there would then have remained an issue as to the date at which the assets should have been valued. As noted earlier (see above at [730]), the date of death was accepted as the appropriate date for the valuation of Jill’s interest in The Springs Partnership. It is not clear why a different date has been adopted for the valuation of Jill’s interest in The Monowai Partnership. The explanation for this seems to be that what is the focus of Claim 6 is the recovery of property, said to be trust property wrongly transferred to Bill, with a valuation as at the date the cause of action arose (hence, the adoption by Mr Samuel of the date of transfer). On that basis, I would have accepted Mr Samuel’s valuation of the respective assets, based on the dates that the assets were transferred into Bill’s sole name (that being the date of the receipt by him of the alleged partnership – and hence trust – property). However, I note that there is very little difference often between the two valuations and, indeed, in some instances, Mr Samuel’s is the higher.

255. [826]

     As to the shares that are now worth nothing, the relevant question would be what they were worth when they were transferred to Bill; and I cannot assess that on the evidence. So, for example, if the claim was for loss suffered as a result of the failure to get in the value of the estate property at the relevant time, it would be relevant to consider whether the shares could have been realised for any particular value at an earlier time.

256. [827]

     As to the timeshares, I accept that they should be valued at nil for the reasons given by Mr Samuel.

257. [828]

     In any event, for the reasons adverted to by Geoff, I have concluded that Claim 6 is not made good.

258. [829]

     Claim 7 (at [59]-[62] of the first cross-claim) deals with Jill’s capital in The Monowai Partnership, the City Pacific Term Deposits and The Monowai Partnership bank account.

259. [830]

     It is alleged that the executors of Jill’s estate failed to collect for Jill’s estate additional partner’s capital that Jill held in The Monowai Partnership with an “adjusted value of $80,653.53” and a tax refund of $1,149.30 (at [61] of the first cross-claim).

260. [831]

     There is no dispute between the parties that each of the payments pleaded in [60] and [61] of the first cross-claim was made into Jill’s estate’s bank account. The experts are agreed that, on the face of The Monowai Partnership statements of account, the capital and current account balances for Bill and Jill disclose that as at 21 March 2007, Jill’s interest was $80,822.30 higher than Bill’s interest (Loneragan Report at [4.7.4]; Samuel Report at [435]).

261. [832]

     Mr Loneragan sets out payments totalling $935,466.98 which were made to Jill’s estate from the bank account of The Monowai Partnership (Loneragan Report at [4.7.1]-[4.7.2]). Mr Loneragan has concluded that Jill’s estate was paid a 50% share of various property held in The Monowai Partnership, including three City Pacific Term Deposit accounts that were recorded in the books and tax returns of the partnership. However, it is said that the balance of the payments made to the estate for Jill’s interest in The Monowai Partnership were not sufficient to meet the partner’s capital that Jill held in the partnership, in excess of Bill’s capital, by a sum of $81,802.83 (see Loneragan Report at [4.1.27]). Merilyn and Bruce say that the residuary beneficiaries of Jill’s estate were entitled to have this partner’s capital collected for Jill’s estate.

262. [833]

     The payments made to Jill’s estate bank account included a 50% share of three City Pacific Term Deposit accounts that were recorded in the books and tax returns of the partnership. Mr Loneragan concluded in relation to the three City Pacific Term Deposits that (Loneragan Report at [4.1.47]):

263. [834]

     It is agreed by the experts that the assets were recorded in the books of The Monowai Partnership for tax and accounting purposes. (However, there was evidence (see T 205.1-8) as to the provision of personal tax file numbers for various investments which does not appear to be consistent with this.)

264. [835]

     Merilyn and Bruce say that, despite references to his “usual practice” in his 2018 affidavit, under cross-examination, Mr Carrigan agreed that three City Pacific Term Deposit accounts were recorded in the general ledgers of The Monowai Partnership, and that “the interest which was paid on the City Pacific term deposits was disclosed in The Monowai Partnership’s tax returns” (T 232.18-21). It is noted that the three City Pacific Term Deposits were redeemed to the Monowai bank account for a total amount of $1,007,308.01 after which a 50% share of each was then paid to the estate bank account, with a total value of $538,654.15 (Loneragan Report at [4.7.22]). Accordingly, Merilyn and Bruce accept that no shortfall arises in relation to these assets.

265. [836]

     Merilyn and Bruce, however, go on to note that Geoff contends that Jill’s interest in these assets was extinguished upon her death, and that these payments were “gifts” from Bill to Bruce, Merilyn and Sue (in the amount of $170,000.00 each) and to Geoff (as well as unspecified consideration allegedly paid by Bill to acquire property from Jill’s estate) (Geoff’s affidavit sworn 8 June 2017 at [496]). Merilyn and Bruce say that the conversations that Geoff alleges took place are not credible and do not overcome the presumptions arising from the treatment of The Monowai Partnership’s investment assets in the partnership ledgers and the partnership tax returns.

266. [837]

     As with the Claim 6 Assets, it is said that the treatment of the three City Pacific Term Deposit accounts as assets of The Monowai Partnership in the accounting books and records of the partnership, and the acknowledgements of Mr Carrigan and the conclusions reached by the experts, enable the conclusion that these were assets of The Monowai Partnership and were properly collected in 50% shares for Jill’s estate.

267. [838]

     Aside from the above-mentioned payments to Jill’s estate bank account, it is noted that all liabilities for The Monowai Partnership continued to be paid on an ongoing basis from The Monowai Partnership bank account after Jill’s death. However, complaint is made that Bill also paid personal expenses (such as groceries, vehicle expenses, political donations and other costs) from the bank account of The Monowai Partnership. Merilyn and Bruce say that this necessitated the reconciliation of The Monowai Partnership bank account in order to attribute these payments as being for Bill’s personal benefit, as distinct from expenses and liabilities of The Monowai Partnership, and payments into Jill’s estate.

268. [839]

     Mr Loneragan has reviewed all of the transactions on The Monowai Partnership bank account and concludes that: Jill’s estate was paid $935,466.98 from The Monowai Partnership bank account and, in comparison, Bill received payments (for his benefit) totalling $935,129.44 (Loneragan Report at [4.7.65]-[4.7.66]). Mr Loneragan is satisfied that all of the remaining expenses paid from The Monowai Partnership bank account were expenses of the partnership (and so, they were borne equally from Bill and Jill’s respective 50% shares of the partnership).

269. [840]

     With one exception, the experts were agreed that the payments noted above were made from The Monowai Partnership bank account, in essence, to Jill’s estate and to Bill, respectively, and/or were otherwise expenses and liabilities of The Monowai Partnership. The exception is that Mr Samuel disputed that various development costs, totalling $254,212.50, were paid by Bill from The Monowai Partnership bank account for land that Bill acquired from the estate (Samuel Report at [470]). Mr Loneragan addressed that issue further in the Loneragan Report in Reply (at [3.1.88]-[3.1.92]). In essence, Mr Loneragan has concluded that development costs were paid from The Monowai Partnership bank account for the undeveloped land (see Claim 10) purchased by Bill (such costs including the cost of engineering reports and water and sewerage costs).

270. [841]

     Merilyn and Bruce say that the way that Bill administered The Monowai Partnership was that he paid Jill’s estate a 50% net share of assets that were redeemed to The Monowai Partnership bank account, and then he paid himself roughly the same amount from the bank account (as drawings for groceries, development expenses and the like). It is said that all other liabilities and expenses continued to be paid from The Monowai Partnership bank account on an ongoing basis until that account was closed on 28 September 2009. Accordingly, Merilyn and Bruce say that (although not formally a process of winding-up because there was no final settlement of accounts), the process employed by Bill for The Monowai Partnership bank account was basically consistent with s 44 of the Partnership Act.

271. [842]

     What is claimed in relation to this is the amount by which it is said that the balance of the payments made to Jill’s estate for Jill’s interest in The Monowai Partnership was not sufficient to meet the additional partner’s capital that Jill held in the partnership, in excess of Bill’s capital. That has been calculated at $81,802.83, which is the amount claimed in the first cross-claim (at [62]). (It is said that there was also a final tax refund that was not paid to Jill’s estate.)

272. [843]

     Merilyn and Bruce say that the residuary beneficiaries of Jill’s estate were entitled to have this partner’s capital collected for Jill’s estate; and that Geoff, as the surviving executor of Jill’s estate, is liable for any losses suffered by the residuary beneficiaries of Jill’s estate. It is accepted that some (though not all) of those assets remain in Bill’s estate; but Merilyn and Bruce say that it is not an answer to their claim that some of those assets would be distributed to them, more than 14 years after Jill’s death, as part of the residue of Bill’s estate. It is said that the “lost capital” cannot be traced over the subsequent years and the beneficiaries were entitled to this property as at the date of Jill’s death in 2007 and/or the winding up of The Monowai Partnership and that they have suffered a loss by the failure to have those assets distributed to them.

273. [844]

     Geoff submits that the partnership accounts cannot be relied upon to form the conclusion sought by Merilyn and Bruce with respect to Claim 7, for the following reasons.

274. [845]

     First, that the parties have been unable to locate the general ledger or statements of account for The Monowai Partnership for the period after 30 June 2009. Mr Samuel has observed that certain payments from The Monowai Partnership account to Jill’s estate bank account exceeded Jill’s capital and current account balances as at 30 June 2009. In the absence of the general ledger and statements of account for The Monowai Partnership for the period after 30 June 2009, Mr Samuel is unable to conclude if an overpayment has occurred (Samuel Report at [448]). Given the incomplete evidence, Geoff submits that it is unsafe to make any adverse finding concerning the matters raised in this claim.

275. [846]

     Second, that Mr Carrigan’s evidence is that The Monowai Partnership accounts were used to record assets which were not partnership assets. Mr Samuel has concluded that any adjustment to The Monowai Partnership’s net asset position is also likely to impact the current account balances of both Bill and Jill and, accordingly, would affect the deficit calculation relied on by Merilyn and Bruce (Samuel Report at [437]).

276. [847]

     Third, on which Geoff places emphasis, that various material errors have been identified in Mr Loneragan’s calculation of the quantum of the alleged shortfall in payments into Jill’s estate bank account in respect of her interest in The Monowai Partnership.

277. [848]

     Mr Loneragan calculates the shortfall to be $80,653.53 (which represents the sum of, first, the difference between Bill and Jill’s capital and current accounts as at 21 March 2007, being $80,822.00; and, second, half of the difference between the total payments made from the account of The Monowai Partnership to Bill and to Jill’s estate (i.e., $935,466.98, being the total payments to Jill’s estate bank account) less $935,129.44 (being the amounts identified as payments to Bill) (Loneragan Report at [4.7.65]). Mr Samuel has concluded, on the other hand, that once the errors he has identified are corrected, there was an overpayment to Jill’s estate in the amount of $86,864.00 (Samuel Report at [470]-[471]).

278. [849]

     The particular errors identified by Mr Samuel in Mr Loneragan’s analysis related to the following payments.

279. [850]

     First, a payment of $196,347 made on 21 June 2007 (as to which, Geoff says there is some evidence that this payment was refunded to Bill on 12 and 26 February 2009 (Samuel Report at [457]; Loneragan Report in Reply at [3.1.83]). The payment has been identified in a bank statement which contains the hand-written narration “Inverell Shire C” and in the general ledger where it is entered under the account name “Bassett Downs-Subdivision” and was described with the narration “Inverell Shire”. Mr Loneragan concluded that Bill received a full refund of this amount but did not reimburse Jill’s estate for Jill’s share of this payment. Mr Loneragan considered it reasonable to arrive at that conclusion because he could not identify any payment into Jill’s estate bank account that could relate to a share of this refund (Loneragan Report at [4.7.59]). Mr Samuel disagreed with Mr Loneragan’s conclusion because it was not clear to him that this amount had not been transferred to Jill’s estate bank account (Samuel Report at [458]). Mr Samuel raised the possibility that Bill’s overpayment in respect of other assets may have included consideration of Jill’s 50% share in this payment and, as a result, said that it was not reasonable to conclude that Bill had not reimbursed Jill’s estate for 50% of this payment.

280. [851]

     Second, a payment of $16,417.50 made on 13 July 2007. The payment has been identified in a bank statement which contains the hand-written narration “Local Government Engineering Inc” and in the general ledger where it is entered under the account name “Bassett Downs-Subdivision” and was described with the narration “Local Government Engineering”.

281. [852]

     Third, a payment of $41,448 made on 4 January 2008. The payment has been identified in a bank statement which contains the hand-written narration “Land Partners – Survey 734 Survey – Blocks 29, 795.00 891 Survey [GST] 3,768.00 734 Survey Lot 31 7,885.00” and in the general ledger where it is entered under the account name “Bassett Downs-Subdivision” and was described with the narrations “Legal Lot 6” and “Survey-Blocks”.

282. [853]

     Geoff points out that there is no direct evidence concerning the purpose of these payments. However, it is said that, based on the above narrations and entries in the general ledger under the account name “Bassett Downs – Subdivision”, a very strong inference can be drawn that the above payments were made to suppliers for land development costs (and would not be retained by Bill personally).

283. [854]

     Mr Samuel also identifies an error in the calculation methodology adopted by Mr Loneragan (Samuel Report at [468]-[469]).

284. [855]

     Mr Samuel has on that basis concluded that there was an overpayment to Jill’s estate in the amount of $86,864. It is submitted that even if Bill did not reimburse Jill’s estate for 50% of the refunded $196,347 payment described above (which Geoff does not accept), the quantum of any short-payment by Bill would be nominal (being $11,309.50).

285. [856]

     Leaving aside the issue of the refund, the disagreement between the experts, as I understand it, is that although the experts agree that the payments described above relate to Bassett Downs lots which were ultimately acquired by Bill, they disagree as to how to treat the fact that the payments were made prior to Bill acquiring Jill’s interest in the relevant lots of land (T 497.16-T 499.1). Broadly, Mr Loneragan considers that Jill and Bill should not jointly be responsible for the development costs of this land because, at a later date (i.e., after the expenditure), Bill acquired the land (T 499.4-43); whereas Mr Samuel had treated them as expenses referable to Jill’s estate (i.e., that Jill’s estate was required to account for development costs associated with land that was, at that time, an asset in her estate).

286. [857]

     For the reasons put forward by Mr Samuel, I find that the claim made as to the alleged shortfall, other than in respect of the potential failure to pay a nominal amount of approximately $11,000, is not made good.

287. [858]

     In any event, Geoff was not the recipient of any trust property or proceeds of sale thereof in respect of the assets that are the subject of this claim and would not be liable therefor. I find that Claim 7 is not made good.

288. [859]

     Claim 8 (at [63]-[67] of the first cross-claim) relates to Jill’s interest in the property known as Bassett Downs (folio identifier 4/812735), approximately 21.25 hectares of land near Inverell, New South Wales (Geoff’s affidavit sworn 8 June 2017 at [158]), title to which was held in The Monowai Partnership . The eight residential lots in question are Lots 3, 6, 9, 10, 14, 19, 22 and 23 within DP1093499 (Claim 8 Lots). Jill owned a half share in the Claim 8 Lots through her interest in The Monowai Partnership.

289. [860]

     The Claim 8 Lots were sold for a total net value of $589,489.63. The dispute is as to whether the whole of Jill’s share of the net proceeds of sale of Lot 6 was paid into Jill’s estate bank account.

290. [861]

     The net proceeds from the sale of Lot 6 were $82,397.05 (Loneragan Report at [4.8.10]-[4.8.11]). Merilyn and Bruce claim the sum of $41,198.53 (first cross-claim at [65]) being the amount Mr Loneragan has calculated as representing the net value of her half interest in Lot 6 that was not paid to Jill’s estate bank account (Loneragan Report at [4.8.29]; Samuel Report at [482]-[487]).

291. [862]

     The experts are agreed that there was no identifiable payment into Jill’s estate bank account for the proceeds of the sale of Lot 6. Merilyn and Bruce say that this amount should not be reduced by a “land survey” payment. Accordingly, it is said that the net proceeds of the sale of Lot 6 should have been paid into Jill’s estate; that did not happen; and that the residuary beneficiaries of Jill’s estate have suffered damage by the executors not ensuring that her interest was fully paid. It is said that the trust property to be traced is in Bill’s estate.

292. [863]

     Geoff maintains, for the reasons set out earlier, that Claim 8 is not maintainable as against him; but goes on to make the following submissions in relation to this claim.

293. [864]

     First, it is submitted that, although neither expert has been able to identify any payment into Jill’s estate bank account in respect of the proceeds of sale of Lot 6, it does not necessarily follow that Jill’s estate did not receive sufficient funds to discharge this interest given the way that funds have been transferred.

294. [865]

     Second, Geoff says that there is a further issue in relation to his entitlement to a share of the proceeds of the Claim 8 Lots. It is noted that, under Jill’s Will (see cl 6), Jill bequeathed to Geoff a “one quarter share of my share in the remaining part of the real estate purchased by me and my said husband from the Estate of the late James Lauder comprising 18.69 hectares or thereabouts and being Lots 1 to 32 inclusive (excluding Lot 8) in Deposited Plan 876448” (see Geoff’s affidavit affirmed 30 March 2015). Geoff submits that the Claim 8 Lots form a part of the bequest and that Geoff did not receive his entitlement in relation to this bequest (subject to the amounts received by Geoff which form part of Claim 10) and, therefore, that: first, Merilyn and Bruce’s entitlement to receive payment in respect of the other seven Claim 8 Lots (excluding Lot 6) was inflated; and, second, Geoff is entitled to set-off as against any loss suffered by Merilyn and Bruce in an amount equal to that loss (see Geoff’s defence to the first cross-claim at [67A]).

295. [866]

     Geoff submits (as logically must follow) that this failure to pay his entitlement had the effect of artificially inflating the entitlement of Merilyn, Sue and Bruce (as they claim to be entitled to one-third of the value of these properties, rather than one-quarter, pursuant to their entitlement to the residue).

296. [867]

     It is submitted that it would follow that Geoff was entitled to receive (and did not receive) a quarter of Jill’s share in the net proceeds of sale of those Lots. Jill’s half share in the Claim 8 Lots was $294,744.82 (being half of the actual net proceeds of $589,489.63); and therefore, Geoff was entitled to (but did not) receive the sum of $73,686.20. This is the amount that Geoff says he is entitled to set-off as against any liability he has to Merilyn and Bruce (see also the second cross-claim at [18]-[21]). It is said that, as a practical matter, what is here occurring is that Merilyn and Bruce are seeking to trace money constituting trust property into Geoff’s hands on the basis that he was not entitled to it; whereas Geoff’s answer is that he was entitled to that money and more from the estate.

297. [868]

     Moreover, to the extent that the amount of $253,545.53 was paid into Jill’s estate bank account (first cross-claim at [65]) and then distributed as part of the residue, Geoff says that each of Merilyn and Bruce received $10,828.97 more than he or she was entitled to receive in respect of the Claim 8 Lots. This is calculated as follows (see [373] of Geoff’s closing submissions): Jill’s estate received (for the Claim 8 Lots excluding Lot 6) the sum of $253,545.53; the amount distributed to each of Merilyn, Sue and Bruce ($253,545.53 divided by 3) was $84,515.18; the amount Jill’s estate should have received (Claim 8 Lots including Lot 6) was $294,744.82; the amount that should have been distributed to each of Geoff, Merilyn, Sue and Bruce ($294,744.82 divided by 4) was $73,686.21; and the difference for each of Merilyn, Sue and Bruce would be $10,828.97 ($84,515.18 less $73,686.21).

298. [869]

     Assuming, for present purposes, that Jill’s estate did not receive sufficient funds to discharge Jill’s interest in the Claim 8 Lots (though I note the complaint by Geoff as to the inadequacy of the evidence in this respect), it is nevertheless clear (and somewhat ironic given the adamant position of Bruce in this litigation that he has been treated less favourably than Geoff) that Geoff was entitled to a one-quarter share of the net proceeds of sale of the Claim 8 Lots and hence that the residuary beneficiaries were overpaid in the amounts they received in respect of the Claim 8 Lots. Strictly speaking, therefore, any adjustment of the amounts representing only the sale proceeds of Lot 6 would need to take into account that Geoff was entitled to receive the sum of $73,686.02 in respect of his quarter-share of the proceeds of all of the Claim 8 Lots under Jill’s Will and sensibly there would need to be a setting-off in this regard.

299. [870]

     However, for the reasons set out earlier, there is no claim maintainable against Geoff for Claim 8. The only order that would have been appropriate would be an order that Geoff receive out of Bill’s estate the balance owing to him in respect of this asset; however, such a claim does not here appear to be pressed. Certainly, no loss has been shown to have been suffered by the residuary beneficiaries arising out of any shortfall in the payment to Jill’s estate bank account of the net proceeds of sale of Lot 6.

300. [871]

     Claim 9 (at [68]-[72] of the first cross-claim), as adverted to above, relates to five other residential lots in the Bassett Downs development in which Jill had an interest through her share of The Monowai Partnership, being Lots 2, 11, 12, 13 and 20 (the Claim 9 Lots).

301. [872]

     The Claim 9 Lots had not been sold to third parties. On 2 December 2009, Jill’s estate’s interest in the Claim 9 Lots was transferred to Bill for a consideration of $137,500. The present dispute concerns the adequacy of the payment made by Bill to Jill’s estate bank account.

302. [873]

     Merilyn and Bruce say that the executors of Jill’s estate (i.e., Bill and Geoff) transferred the lots to Bill for a consideration which was under market value, and they have calculated the underpayment at $60,416.82.

303. [874]

     It is said that Geoff received legal and accounting advice on this transfer. Mr Carrigan (who, as already noted, was Bill’s accountant and who was engaged by Geoff and Bill to act as the accountant for the administration of Jill’s estate) advised that “Bill sought to structure the sale to obtain the benefit of s 70.100 of the Income Tax Assessment Act 1997 (Cth)” (Carrigan’s affidavit affirmed 23 June 2017 at 17, [12]).

304. [875]

     Bill received a net amount of $384,883.37 ($192,441.68 as a 50% share) from his sale of the Claim 9 Lots, there being $18,116.63 in expenses deducted from the sale proceeds (see Loneragan Report at [4.9.13]). Merilyn and Bruce point out that the first of these land sales occurred approximately two weeks after the transfer of the Claim 9 Lots to Bill; and they complain that the beneficiaries were not informed of the transfer. Four of the five Claim 9 Lots were sold within 18 months. Legal costs, sales commissions, rates adjustments and other transaction costs were deducted from the gross realised sale proceeds, before the net sale values were deposited to Bill’s bank account. It is said that this contradicts the calculations done by Mr Carrigan in deducting such amounts from the value realisable by the beneficiaries.

305. [876]

     Merilyn and Bruce emphasise that, as an executor, Bill had a duty not to benefit from the estate. It is said that the onus is on Bill (who I interpolate to note is now deceased and cannot therefore give his own account of the transaction; and thus this must be a reference to his executors) to demonstrate that the sales were not at an undervalue. Merilyn and Bruce say that the undervaluing can be inferred by the valuation obtained for stamp duty purposes; and from the amounts received on the sales of those lots. It is submitted that, by seeking to retain these properties, and transferring them at an undervalue, Bill benefitted from his position as executor of Jill’s estate.

306. [877]

     Merilyn and Bruce thus say that the executors breached their duty to Jill’s estate and that, as the sole executor, Geoff is liable to the residuary beneficiaries for the loss suffered. It is said that the assets of Jill’s estate can be traced into Bill’s estate.

307. [878]

     As to Claim 9, again for the reasons set out earlier, Geoff says that Claim 9 is not maintainable against him. Again, however, Geoff goes on to make submissions in relation to this claim.

308. [879]

     Geoff submits that Claim 9 suffers from the following difficulties.

309. [880]

     First, it is noted that Merilyn and Bruce allege that a professional land valuation was obtained by the executors of Jill’s estate (the market appraisal valuation conducted by Robert Lea dated 2 December 2009 (2009 Lea Valuation)), which is said to have opined that the market value of the Claim 9 Lots was $384,000 (Ex 6, Tab HL-6 at [4.5.5]). Merilyn and Bruce rely on this valuation to allege that the executors should have collected $192,000 (said to be the value of a half share in these Claim 9 Lots) for Jill’s estate. As noted earlier, this was the subject of an evidentiary ruling; it being admitted only as evidence of the fact that the valuation was obtained by Bill but not as not evidence of the values asserted in it (T 446.29-36). (I interpose to note that this was because Mr Lea was not put forward as an expert witness and did not provide an expert valuation of the kind contemplated by the Expert Witness Code of Conduct or the rules in relation to the calling of expert evidence.)

310. [881]

     Second, Geoff contends that valuing the land as at the date Bill acquired it, by reference to what it was sold for (in some cases over a period of up to five years later) is not a sound proposition (and, he says, it is not one that is pleaded) (see the cross-examination of Mr Samuel in this regard at T 511.47-T 513.7).

311. [882]

     Accordingly, it is submitted that Claim 9 must fail as there is no evidence of the value of the Claim 9 Lots on or about 28 September 2009.

312. [883]

     Further, it is noted that the 2009 Lea Valuation was obtained by Bill no earlier than 2 December 2009 (being the date of the valuation). It is said that Bill must have calculated the net value of the Claim 9 Lots prior to this, as he made the payment into Jill’s estate bank account in respect of this liability (being in the amount of $137,500) on 28 September 2009 (Geoff’s affidavit sworn 18 October 2018, Ex C at Tab 25). Accordingly, it is said that Bill did not have the benefit of the 2009 Lea Valuation at the time he made the payment.

313. [884]

     Geoff points to the evidence given by Mr Carrigan concerning the process undertaken by Bill when arriving at a sale price (that being a process into which Mr Carrigan had input). It is noted that Mr Carrigan’s evidence, in general terms, is that Bill estimated the market value of the land (being the gross value of the land) and then made various deductions for costs to calculate the net value of the land. Geoff says that Jill’s estate would have had to account for the expenses associated with selling the Claim 9 Lots and the tax implications arising from the sale. It is noted that Mr Carrigan does not have a copy of the calculations conducted by Bill (Mr Carrigan’s affidavit affirmed 23 June 2017 at [47]-[48]) but Geoff says that this is not surprising given the passage of time since the calculations were conducted.

314. [885]

     Further, Geoff says that, similarly to the submission made as to the Claim 8 Lots, the Claim 9 Lots also formed part of the bequest contained in cl 5 of Jill’s Will (being the bequest which entitled Geoff to receive a one-quarter share in these assets).

315. [886]

     Geoff submits that, based on the $137,500 paid by Bill to Jill’s estate bank account, Geoff should have received (and did not receive) $34,375 (which, again, would have the effect of diminishing the entitlement that each of Merilyn, Sue and Bruce had in respect of the proceeds of sale). Geoff says he is entitled to set off this amount as against any liability that he has to Merilyn and Bruce (second cross-claim at [18]-[21]).

316. [887]

     To the extent that the amount of $137,500 was paid into Jill’s estate bank account and then distributed as part of the residuary estate, it is said that each of Merilyn and Bruce received $11,458.33 more than he or she was entitled to in respect of the Claim 9 Lots.

317. [888]

     Again, for the reasons given by Geoff, Claim 9 is not maintainable as against him.

318. [889]

     As against Bill’s estate, I am not persuaded that the sales of the Claim 9 Lots were at an undervalue – not least because there is no reliable expert evidence as to the market value of the Claim 9 Lots at the time (nor am I persuaded that Bill was aware of the 2009 Lea Valuation as at the time that the purchase price was struck). I accept that the fact that the first of the sales was at a higher price shortly after the transfer to Bill raises an issue at least as to that sale. However, I accept the evidence of Mr Carrigan as to the process that was undertaken in order to strike a purchase price. Moreover, a claim for breach of executorial duties, to the extent that it would be akin to a claim of devastavit, is statute barred.

319. [890]

     Furthermore, the claimed sale of the first of those lots at an undervalue has caused no appreciable loss to the residuary beneficiaries (including Merilyn and Bruce) in circumstances where Geoff was entitled to a one-quarter share of the proceeds of all of the Claim 9 Lots and hence would have been entitled to $34,375 which he did not receive.

320. [891]

     I find that Claim 9 is therefore not made good.

321. [892]

     Finally, Claim 10 (at [73]-[76] of the first cross-claim) relates to the remaining balance of the bank account for Jill’s estate in 2009 (in the sum of $69,702.68). It is alleged that the executors incorrectly made a distribution of $25,000 to Geoff and then a further (incorrect) distribution of $69,702.68 to Geoff from Jill’s estate bank account (the latter being described by Geoff as a “gift” from his father) shortly after the transfer to Bill of the Claim 9 Lots. As to this, Merilyn and Bruce say that Mr Carrigan was unable to reconcile this payment (Carrigan’s affidavit affirmed 23 June 2017 at 17, [12]) and they say that, as an executor, Geoff should have known that moneys in estate accounts are not able to be the subject of a “gift” from the other co-executor.

322. [893]

     It is accepted by Merilyn and Bruce that Geoff was left a one-quarter share of the land that is the subject of the bequest in cl 5 of Jill’s Will (which they accept was part of the land transferred to Bill on 22 May 2008). Complaint is made that this was after Bill had paid development costs in relation to this land totalling $254,212.50 from The Monowai Partnership. Merilyn and Bruce point out that the 2008 Lea Valuation obtained for this land did not refer to this development for a consideration of $300,000. It is said that the undeveloped value of this land was shown as $90,000 in the inventory of property for Jill’s estate, with a further undeveloped lot of land in DP 26/1093488 with a value of $95,000.

323. [894]

     Merilyn and Bruce say that, in purchasing Jill’s estate’s share of these two undeveloped blocks, Bill added $115,000 to the consideration that he paid for the lots, which they say seems to have been an estimate of what Bill considered had been paid by The Monowai Partnership for the “Work on Development” costs that he had expended from The Monowai Partnership on the undeveloped land (Ex C at Tab 27). Merilyn and Bruce say that it appears that Geoff and Bill came to some arrangement regarding the distributions and payments to Geoff from Jill’s estate which resulted in these payments satisfying any claim by Geoff under Jill’s Will. As noted above, it is said that, as an executor, and as one of the persons who made these payments, Geoff should have known that the moneys were not able to be the subject of a gift from a co-executor and it is submitted that he cannot now say that he should be credited for any underpayment, as he elected to receive those payments, including the inappropriate “gift”.

324. [895]

     Merilyn and Bruce say that the payments from Jill’s estate purporting to be “gifts” from Bill were made improperly by the executors, including Geoff, and that he should now return those funds to Jill’s estate for the benefit of the residuary beneficiaries.

325. [896]

     Insofar as Merilyn and Bruce rely on the 2008 Lea Valuation to support their claim in relation to the $25,000 (Bruce’s affidavit sworn 26 April 2018, Ex 5 at 212-3), Geoff again points to the evidentiary ruling made in respect of this land appraisal (i.e., that the appraisal was admitted as evidence of what documents were before the executors for the purposes of the administration of the estate; not for the truth of the valuation) (see at T 259.15-19). Accordingly, it is said that there is no evidence of the value of Lot 31 in DP876448 and Lot 26 in DP1093499 on or about 22 May 2008.

326. [897]

     In relation to the $25,000 distribution, insofar as the first cross-claim appears to allege that this payment was made in relation to Geoff’s entitlement under Jill’s Will (being the bequest under cl 5) in respect of Lot 31 in DP876448, Geoff points out that Jill’s interest in Lot 31 in DP876448 (and Lot 26 in DP1093499) was transferred from Jill’s estate to Geoff, Bruce, Merilyn and Sue, and that Geoff, Bruce, Merilyn and Sue then agreed to sell their interest in Lot 31 in DP876448 and Lot 26 in DP1093499 (being the interest devised to them under Jill’s Will) to Bill for the amount of $300,000.

327. [898]

     It is noted that on 22 May 2008, each of Bill (in his capacity as an executor of Jill’s estate), Geoff (as transferor, in his capacity as an executor of Jill’s estate, and as transferee, in his personal capacity), Merilyn, Sue and Bruce executed a “Transmission Application” pursuant to which Jill’s interest in Lot 31 in DP876448 and Lot 26 in DP1093499 was transferred from Jill to Geoff, Bruce, Merilyn and Sue (Ex C at 192); and on that same day, Geoff, Bruce, Merilyn and Sue transferred their interest in Lot 31 in DP876448 and Lot 26 in DP1093499 to Bill pursuant to a “Transfer” which listed the consideration as $300,000 (Ex C at 193).

328. [899]

     The consideration paid by Bill pursuant to the transfer was paid into Jill’s estate account (Loneragan Report at [4.1.56]-[4.1.59]); Samuel Report at [104]). It is noted that there is no evidence as to why this payment was made into Jill’s estate bank account but Geoff argues that, given that Merilyn, Sue and Bruce were entitled to the residue of Jill’s estate and that Bill made a separate payment out of Jill’s estate bank account to Geoff of $75,000 (being one quarter of $300,000), it may be inferred that Bill considered this to be a convenient manner in which to make the payment.

329. [900]

     Accordingly, it is submitted that the sale of this land occurred after it had been distributed out of Jill’s estate and, therefore, the sale transaction is unrelated to the administration of the estate.

330. [901]

     In relation to the $69,702.68 distribution, insofar as the first cross-claim alleges that Geoff was not entitled to receive this amount, Geoff contends that, in fact, the amount of $69,702.68 was insufficient to satisfy Geoff’s entitlements in respect of the Claim 8 Lots and Claim 9 Lots (as to which, see above). It is submitted that Geoff was entitled to (but did not) receive the following amounts: $73,686.02 in respect of the Claim 8 Lots; and $34,375.00 in respect of the Claim 9 Lots. Accordingly, it is said that Geoff was entitled to receive $108,061.02 in respect of the Claim 8 Lots and Claim 9 Lots and that the payment of $69,702.68 was insufficient to satisfy Geoff’s entitlement.

331. [902]

     I accept that the evidence establishes that the sale of Lots 31 and 26 to Bill was a transaction unrelated to the administration of Jill’s estate because it occurred after the transmission to each of the siblings of that property in accordance with cl 5 of Jill’s Will. That is sufficient to dispose of Claim 10. Moreover, I accept that the claim by Merilyn and Bruce in relation to the distributions is less than the amount that Geoff was entitled to receive in respect of the Claim 8 Lots and the Claim 9 Lots. This highlights the lack of merit in the complaint by Merilyn and Bruce that they have suffered a loss as to the matters the subject of this and other claims in the first cross-claim. In fact, they have been overpaid at Geoff’s expense.

332. [903]

     Although in their closing submissions Merilyn and Bruce again referred to the manner in which they say that many of the claims in the first cross-claim are framed (namely, as encompassing both the first limb of Barnes v Addy and the additional form of ancillary liability enunciated by Leeming JA in Fistar at [47]), any claim for knowing receipt or knowing participation in breach of fiduciary duty was not pleaded (or raised in opening submissions) (T 4.44-50; T 11.10-21).

333. [904]

     Rather, having regard to the limitation issues raised in the course of submissions, the claims by Merilyn and Bruce ultimately focused on claims as to receipt of trust property or the proceeds therefor (see s 47 of the Limitation Act). That has the result that most of the claims against Geoff under the first cross-claim are not able to be maintained.

334. [905]

     For the reasons set out above in relation to the separate claims made by Merilyn and Bruce, I have concluded that each of those claims should be dismissed. Accordingly, it is not necessary to deal with the additional defences raised to the first cross-claim, including as to the invocation of the principle of laches; nor, in those circumstances, does the second cross-claim (which was admittedly defensive) arise. However, I address briefly the issues raised by the second cross-claim below.

335. [906]

     As to the claim for contribution, logically, insofar as the co-executors were found solely to have breached executorial duties, then I see no reason why Geoff would not be entitled to bring a claim for contribution against Bill’s estate.

336. [907]

     As to the relief sought by Geoff in response to any breach of executorial duties (on the basis that any breach was honest and reasonable and ought fairly to be excused – see Trustee Act, s 85), I would be inclined to grant such relief. The estate was administered under Bill’s instructions and with the benefit of legal and accounting advice. Any breach by Geoff was not wilful nor was it dishonest.

337. [908]

     Finally, as to the defence of laches, what is required (see as summarised in Crossman v Sheahan [2016] NSWCA 200 at [385]-[386]) is something more than mere delay. What is required is that the plaintiff (here, the cross-claimants, Merilyn and Bruce) has, by inaction and standing by, placed the defendant (here Geoff) or a third party in a situation in which it would be inequitable and unreasonable “to place him if the remedy were afterwards to be asserted” (see Orr v Ford (1988) 167 CLR 316 at 341 per Deane J; and see the commentary in JD Heydon, MJ Leeming, PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrine and Remedies (5th ed, LexisNexis, 2014) at [38-005]; ICF Spry, Equitable Remedies (9th ed, 2014, Lawbook Co) at 232).

338. [909]

     Thus, Geoff must establish both unreasonable delay and prejudice to him (see Doyle CJ’s observations in Duke Group Ltd (in liq) v Alamain Investments Ltd [2003] SASC 415 at [156]; and see also Lindsay Petroleum Co v Hurd (1873-4) LR 5 PC 221 at 239-40 per Lord Selborne.It will be recalled that Merilyn and Bruce maintain that it was not possible for them to determine (both prior to the first cross-claim and as at December 2018 after Mr Carrigan’s second affidavit) how Jill’s estate had been administered, and in particular, Jill’s interests in the relevant partnerships (their complaint being as to the lack of, or inaccurate, information provided to them, referring to the matters raised earlier as to the information in the inventory of property for Jill’s estate; the 2007 and 2015 correspondence from Mr Carrigan; and the evidence given by Mr Carrigan in his affidavits). However, there is no suggestion that they had any complaint as to the administration of Jill’s estate until after the issue of Geoff’s complaint in relation to Bill’s Will was raised

339. [910]

     Even accepting that Merilyn and Bruce did not become sufficiently aware of the matters on which the first cross-claim was based (having regard to the response from Mr Carrigan to their enquiries), the fact remains that their complaints about the administration of Jill’s estate were not made until after Bill died (a number of years after Jill’s estate had been administered) in circumstances where they apparently did nothing to raise any issue as to the administration of Jill’s estate with Bill. Indeed, it seems implausible that they would have sought compensation from Bill while he was alive – not least at the time that Bruce (for one) was actively campaigning to ensure that Bill did not favour Geoff in his Will or by making any further provision for him during his lifetime.

340. [911]

     In my opinion, the delay in raising the issue was unreasonable and it has prejudiced Geoff in his ability to meet the claims in the sense that he has been unable to obtain evidence directly from Bill as to how various of the assets were acquired. Therefore, had it arisen, I would have found the defence based on laches had substantial merit.

341. [912]

     As noted, the second cross-claim was only to be pressed if Merilyn and Bruce had a measure of success in the first cross-claim (which they have not).

342. [913]

     For completeness, I note that the second cross-claim alleges that, if Geoff is liable pursuant to the first cross-claim (which is denied) then: first, Bill owed Geoff a duty of care which he breach by making negligent misrepresentations concerning the steps Bill had taken to ensure that Jill’s will had been properly administered and that Geoff has consequently suffered a loss; and, second, that Geoff’s liability should be reduced by reason of Geoff being entitled to a contribution from Bill (in his capacity as a joint and several tortfeasor) and pursuant to s 5 of the Law Reform (Miscellaneous) Provisions Act 1946 (NSW). Geoff in those circumstances would seek equitable compensation from Bill’s estate or contribution for any loss.

343. [914]

     As to the claim of negligent misrepresentation, Geoff invokes the principles articulated in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] 2 All ER 575; Caltex Refineries (QLD) Pty Ltd v Stavar [2009] NSWCA 258 at [102]-[103] per Allsop P, as his Honour then was); Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; [2004] HCA 16 at [23] per Gleeson CJ, Gummow, Hayne and Heydon JJ; Mutual Life & Citizens’ Assurance Co Ltd v Evatt (1968) 122 CLR 556 at 571 per Barwick CJ; c.f. Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at [149]; and Wyong Shire Council v Shirt (1980) 146 CLR 40 at 48).

344. [915]

     Geoff’s evidence is that he had a conversation with Bill in about June 2009 concerning Jill’s interest in the Claim 8 Lots and that Bill explained the process he was undertaking in relation to these lots and told Geoff “Leave it with me. I’ll sort it” (Geoff’s affidavit sworn 18 October 2018 at [153]); and that, on 15 August 2009, Bill told him that “I’m glad to have finalised everything to do with the old Springs Partnership. I’m also pleased to have Jill’s estate nearly wound up” (Geoff’s affidavit sworn 18 October 2018 at [53]). Geoff’s evidence is that he trusted and respected his father and believed him when he told Geoff that he had wound up The Springs Partnership (Geoff’s affidavit sworn 18 October 2018 at [55]).

345. [916]

     It is also said that, at the conclusion of the administration of Jill’s estate, Bill and Geoff had a number of critical conversations concerning the administration. First, that in 2009 once Jill’s estate had been wound up, Bill handed Geoff a handwritten summary he had written up showing what each of the beneficiaries had received from Jill’s estate and how much he had calculated Jill’s estate to be worth. When Bill showed this handwritten summary to Geoff, Geoff says that Bill told him words to the effect:

346. [917]

     Second, that Bill and Geoff then had a further conversation around this time to the following effect (Geoff’s affidavit affirmed 30 March 2015 at [97])):

347. [918]

     Geoff gives evidence that Bill did all of the work with the solicitor in relation to the probate and Geoff was merely instructed by his father to sign off on the documents. Geoff says that he trusted his father to complete this task correctly (Geoff’s affidavit affirmed 8 December 2015 at [55]).

348. [919]

     It is submitted that Bill knew, or ought reasonably to have known that Geoff would rely on the above representations (referred to as the Estate Representations), by reason of the fact that: Bill was Geoff’s father whom Geoff trusted; following a considerable period of working in business together, it would have been apparent to Bill that Geoff respected him and regarded him as an astute and honest businessman; Bill knew that Geoff did not have a detailed understanding of either the assets Jill held at the date of her death or the manner in which she held those assets (which is said to be apparent both from the Estate Representation and, separately, in relation to Jill’s interest in The Springs because Bill was solely responsible for the bookkeeping; and Geoff had not been actively involved in the administration of Jill’s estate and Bill must have appreciated that Geoff was relying on Bill to ensure that all necessary steps were taken properly and faithfully to administer the estate.

349. [920]

     It is said also to be apparent from the above matters that Bill had assumed responsibility as to the accuracy of his representations concerning the administration of Jill’s estate and that Geoff was in a position of vulnerability as he was not readily able to independently verify the adequacy of the steps taken by Bill (and indeed, by reason of the Estate Representation, Bill discouraged Geoff from doing so). In this regard, it is noted that when Geoff sought to verify these matters, he was simply told by Bill that Bill had “done it all correctly” and that his mother’s “business dealings are very involved” and linked to Bill’s business dealings, constituting an acceptance by Bill that he was in a unique position to understand these matters. It is said that the objective evidence supports this proposition. It is noted that the financial accounts for The Monowai Partnership and The Springs Partnership had been prepared in such a manner that partnership assets and personal assets had been recorded and intermingled and that a person in Geoff’s position would not have independently been in a position to ascertain the true position by simply reviewing those accounts.

350. [921]

     In the circumstances, it is submitted for Geoff that it must have been readily apparent to Bill that: Geoff could (and was likely to) suffer considerable damage if reasonable care was not taken by him when making the Estate Representations; Bill was not required to make this statement and, instead, could have provided Geoff with the means and knowledge to independently investigate the adequacy of the steps taken by Bill; and that Geoff was not in a position to protect himself from the consequences of Bill’s lack of reasonable care.

351. [922]

     Hence it is said that if Geoff is liable in any respect pursuant to the first cross-claim, then it follows that Bill will liable to Geoff by reason of a breach of his duty of care.

352. [923]

     In the alternative, it is submitted that, if a finding is made that Bill and Geoff breached a duty of care they owed to the beneficiaries (including the cross-claimants) by reason of the mal-administration of Jill’s estate, Geoff is entitled to a contribution from Bill’s estate on the basis that Bill was a joint and several tortfeasor (Geoff here invoking s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW)).

353. [924]

     Merilyn and Bruce say that the second cross-claim is misguided. They say that Geoff was also an executor of the estate; and that he remains the sole living executor of Jill’s estate, the office being a joint one and transmitting to him on Bill’s death. It is noted that the office of executor has now devolved upon Geoff. Merilyn and Bruce say that Geoff is liable for his administration of the estate; including where this arises from his improper delegation of the administration of the trust to Bill, and otherwise by his acquiescence and approval of Bill’s actions. It is said that a trustee who relies entirely on a co-trustee and accepts his statements without enquiry does not act reasonably (citing Re Second East Dulwich Building Society (1899) 68 LJ Ch 196).

354. [925]

     As to the pleading that Bill’s estate should contribute as a joint tortfeasor, Merilyn and Bruce say that there is no cause of action made out for this claim. (That is because, as I understand it, no claim is devastavit is here pursued.

355. [926]

     This issue does not arise as the second cross-claim is not pressed. Had it arisen for consideration, I would have been inclined to find that the claim against Bill’s estate for negligent misrepresentation was made good. It seems to me quite plausible that Geoff relied on his father to deal with Mr Carrigan (and Mr Carrigan does not suggest otherwise). The fact that Geoff might have a liability to the beneficiaries does not detract from any claim for contribution against Bill’s estate or, if it be made good, a negligent misrepresentation claim. However, it is not necessary to reach a final view on this issue.

Geoff’s Family Provision claim

1. [927]

   Finally, I turn to Geoff’s claim for further provision out of Bill’s estate pursuant to s 59 of the Succession Act.

2. [928]

   The principles on such applications are well-known. I considered them recently in Watton v MacTaggart [2020] NSWSC 1233 (see from [35]) and for ease of reference here reprise those principles, noting that there is no issue in the present case but that Geoff is an eligible person for the making of this application.

3. [929]

   Pursuant to s 59 of the Succession Act a family provision order in relation to the estate of a deceased person may be made if the Court is satisfied of the matters set out in s 59(1) of the Succession Act (see the principles articulated by Hallen J in Page v Hull-Moody [2020] NSWSC 411 (Page v Hull-Moody) from [120]).

4. [930]

   A determination as to whether a plaintiff has been left without adequate provision for his or her proper maintenance and advancement in life involves an evaluative judgment. The time at which the adequacy of provision is to be tested is the time the application is being considered (s 59(1)(c) of the Succession Act). If, at the time the application is determined, it is found that the deceased did not make adequate provision for the plaintiff’s proper maintenance and advancement in life, then there must be a determination as to whether and what provision ought to be made for the plaintiff.

5. [931]

   Pursuant to s 60(1) of the Succession Act, the Court may have regard to the matters set out in s 60(2) of the Succession Act for the purpose of determining whether to make a family provision order and the nature of any such order. Those matters may be relevant both to the question of any inadequacy of provision and, if the provision is found to be inadequate, to the question whether, and if so what, order for provision should be made.

6. [932]

   As I noted at [39] of Watton v MacTaggart, in Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40, when considering the predecessor legislation to the Succession Act, the majority of the High Court said that the words “adequate” and “proper” are relative and require the formation of opinions upon the basis of its own general knowledge and experience of current social conditions and standards (see at 211 per Mason CJ, Deane and McHugh JJ). More recently, in Sgro v Thompson [2017] NSWCA 326 (Sgro v Thompson), White JA (with whom McColl and Payne JJA agreed) said (at [86]):

7. [933]

   It is also relevant here to note (since Geoff is an adult child) that there are no special rules or principles applicable to claims of adult children (nor any presumption for or against there being a moral obligation to make provision for an adult child), as Hallen J recognised in Towson v Francis [2017] NSWSC 1034 (see at [70]-[80], his Honour there citing Burke v Burke (2015) 13 ASTLR 313; [2015] NSWCA 195; Nicholas v Tubb [2016] TASSC 53; Toscano v Toscano [2017] NSWSC 419; and Underwood v Gaudron [2014] NSWSC 1055). Each case must be considered by reference to its particular facts and circumstances (though see the summary of principles in Camernik v Reholc [2012] NSWSC 1537 at [159] per Hallen J).

8. [934]

   As noted, the determinations required to be made by the statutory provisions outlined above are to be made with regard to the circumstances as they exist as at the time the application is being considered (see also Ellem v Webber [2020] NSWSC 910 (Ellem v Webber) at [215] per Robb J). Relevantly, therefore, one would here take into account the position of Geoff having regard to the dismissal of his proprietary estoppel and the dismissal of the first cross-claim; and a relevant factor in that regard would be to take into account the potential costs consequences of those determinations.

9. [935]

   For Geoff it is noted, and I accept, that the question whether the deceased has made adequate provision for the applicant is a question of objective fact whose determination involves an evaluative judgment, and is not usually capable of precise or mathematical explanation (reference being made to Pilotto v Cosoleto [2019] NSWSC 1454 at [176]-[177] per Hallen J).

10. [936]

    Geoff emphasises that it is fundamental that s 59 of the Succession Act does not speak solely in terms of “adequate” provision for the applicant, but requires that the provision be “adequate” for the “proper” maintenance, education or advancement in life of the applicant for further family provision. It is noted that, “while the determination of what is adequate tends to be an objective consideration, which can often to a considerable degree be determined in financial terms, the requirement that the provision be proper introduces wider considerations, involving more subjective notions concerning the size of the estate, the relationship between the deceased and all persons having a call on the deceased’s bounty, and the competing claims of those persons, among other matters” (Ellem v Webber at [217]; see also Sgro v Thompson).

11. [937]

    It is also noted that the concept of an applicant’s “need” extends beyond consideration of what an applicant cannot survive without (though it is accepted that “in need of” means more than merely “want[s]”) (see Cooper v Atkin [2020] NSWSC 828 at [181] per Hallen J).

12. [938]

    Merilyn and Bruce have also noted the following articulation of the principles to be applied on an application for an order for family provision set out in Blendell v Blendell [2020] NSWCA 154, where Meagher JA (with whom Gleeson and Leeming JJA agreed) said (at [7]-[8]):

13. [939]

    Geoff, in his submissions, raises the following as relevant considerations in terms of the non-exhaustive factors contained in s 60(2) of the Succession Act.

14. [940]

    Geoff says that he had a close working relationship with Bill in the period from about 1977 until Bill’s death on 22 January 2014. It is noted that Geoff was the only child of Bill who took up a career in farming; and that, not only did Geoff and Bill (together with, at times, Jill and Kaye) jointly own rural properties but they also worked closely together to earn an income from those properties and to improve their capital value. Further, it is noted that Geoff was the only one of Bill’s children who lived nearby and saw him regularly. It is said that Merilyn and Bruce have wrongly sought to minimise the level of contact between Bill and Geoff following Jill’s death.

15. [941]

    It is submitted that the best evidence of Geoff’s contact with Bill is Geoff’s evidence that he saw Bill “on average one or two full days per week, totalling about 15 to 20 hours per week” and that, after Jill died, Geoff spoke to Bill “on the phone several times a week” and on the days Bill helped at The Springs, Geoff and Bill would have “an hour and a half round trip to the property”, being a trip undertaken one to four times a week (Geoff’s affidavit affirmed 8 December 2015 at [116], [120]; Geoff’s affidavit affirmed 30 March 2015 at [68]). Geoff’s evidence is that he drove Bill to Bruce and Merilyn’s wedding (Geoff’s affidavit affirmed 30 March 2015 at [69]); and that he cut Bill’s hair and helped him with everyday chores (Geoff’s affidavit affirmed 30 March 2015 at [70]).

16. [942]

    It is said that there is no suggestion in these proceedings that Geoff (or, for that matter, any of his siblings) was estranged from Bill at any stage.

17. [943]

    The inventory of property annexed to the probate for Bill’s estate values Bill’s assets at $3,474,518.83 (Geoff’s affidavit affirmed on 30 March 2015 at Annexure D), that amount attributing a value for the half share of The Springs of $950,000. If the desktop valuation of Bill’s half share of The Springs (of about $1.75 million) were to be adopted then the overall value of Bill’s estate would increase to $4,274,518. Accordingly, as Geoff says, the size of the estate is considerable.

18. [944]

    Under Bill’s Will, Geoff was given Bill’s interest in various farming plant and equipment and Bill’s interest in The Bassett Grazing Co Partnership with a value of approximately $233,835 (according to the inventory of property filed in Probate) (Geoff’s affidavit affirmed on 30 March 2015 at Annexure D). Therefore, if the desktop valuation is adopted, then excluding the specific bequest in relation to The Bassett Grazing Co Partnership (valued at $233,835), the overall estate would be valued at $4,040,683.

19. [945]

    It is not disputed that the provision made for Geoff in Bill’s Will was considerably less than the provision made for each of his siblings ($233,835 compared to the siblings’ one-third share each of $4,040,683 adopting the desktop valuation figure).

20. [946]

    From the above it can also be seen, in broad terms (and adopting the figures in the desktop valuation), that had Bill left Geoff one-quarter of his residuary estate but the specific bequest in relation to The Bassett Grazing Co Partnership remained as is, then each of the three other siblings would have received in effect approximately $1,010,170.75 and Geoff would have received $1,244,005 taking into account the plant and equipment and share of The Bassett Grazing Co Partnership. Whereas, had the bequest to Geoff been of the whole of Bill’s half share in The Springs (plus the interest in relation to The Bassett Grazing Co Partnership) then the other siblings’ share of the residuary estate would be valued at one-third of around $2,290,683, i.e., $763,561 on my rough arithmetic). In other words, having regard to the two options that on Sue’s evidence Bill was considering at the time shortly before his death, the other siblings would have been in a more favourable position had there been a one-quarter division of the estate than if Bill were to have left the whole of his half interest in The Springs to Geoff. I raise this at this stage as it puts into context the apparent disconformity between the siblings’ perspectives as to the evening up of their share of their inheritance from their parents’ estates (particularly since the other siblings received considerably more from Jill’s estate than did Geoff but Geoff received considerably more in financial assistance from his parents in their lifetime than did the other siblings).

21. [947]

    Geoff’s evidence is that he presently has net assets with an estimated value of $2,124,240, calculated by reference to assets of which Geoff is the sole owner, with an estimated net value of $493,942 (Geoff’s affidavit sworn 4 August 2020 at Annexure A) and assets of which Geoff is a co-owner, of which Geoff’s share has an estimated net value of $1,630,298 (Geoff’s affidavit sworn 4 August 2020 at Annexure B).

22. [948]

    Geoff’s income varies from month to month depending on the income derived through his consultancy business. The notice of assessment for the year ended 30 June 2018 (issued to Geoff) disclosed the following income: in 2014, $52,740; in 2015, $101,249; in 2016, $39,130; in 2017, $91,688; and in 2018, nil.

23. [949]

    Geoff was diagnosed with a large pituitary tumour in 2000 and has had his pituitary gland removed. As a result, Geoff requires medication with a monthly cost of $310 (and currently incurs health related costs of $447 per month). Geoff is no longer able to produce a “human growth hormone” which retails at $3,300 per month. To date, Geoff has not been taking this medication due to the cost being prohibitive (Geoff’s affidavit affirmed on 30 March 2015 at [86]). Geoff suffered from a heart attack in 2017 and was hospitalised shortly before the hearing with heart related concerns (Geoff’s affidavit sworn 4 August 2020 at [38]).

24. [950]

    As a result of no longer having a pituitary gland, Geoff is starting to suffer from the effects of long term cortisone use, being a deterioration of his teeth and bone density (Geoff’s affidavit sworn 4 August 2020 at [43]). It is submitted that this is of particular concern for Geoff as he earns his living through tough physical work associated with farming and consulting. It is said that as Geoff’s condition continues to deteriorate, there is a significant risk that he will no longer be able to earn an income as a farmer and consultant, being the only area in which Geoff has vocational skills.

25. [951]

    It was submitted that if Merilyn and Bruce were successful in whole or in part in relation to the claims made in the first cross-claim (which they have not been as it transpires), Geoff could have a significant financial need at the time of judgment (the quantum of which necessarily could not be determined until the date of judgment).

26. [952]

    Sue was born in 1957 and is married. Sue is a registered nurse but does not presently work and her husband is employed as a storeman. Sue and her husband have three adult children (Sue’s affidavit sworn 22 July 2015 at [46]).

27. [953]

    Sue and her husband have assets with an estimated value of $2,071,700 and do not have any liabilities other than regular household expenses and costs of maintaining their properties and cars (Sue’s affidavit sworn 22 July 2015 at [47]-[48]).

28. [954]

    Bill and Jill gave Sue a gift of about $10,000 in 1989 and a further $50,000 sometime after 1989 (Sue’s affidavit sworn 22 July 2015 at [45]; Edwina’s affidavit sworn 28 September 2015 at [18]).

29. [955]

    Merilyn was born in April 1955.

30. [956]

    In 2015, Merilyn gave evidence that she was then retired and her then current income from superannuation was $55,000 per annum, and she estimated that the total value of her assets was $1,263,800 and that her liabilities were nil (Merilyn’s affidavit sworn 28 September 2015 at [4]). Merilyn more recently gave evidence that her income has increased to $62,500 per annum and she estimates that the total of her assets has marginally decreased to $1,239,590 (but that she now makes a contribution to her daughter’s rent which amounts to an annual liability of $7,800 per annum) (Merilyn’s affidavit sworn 5 August 2020 at [10]).

31. [957]

    Merilyn’s husband, Mr Robert Jaensch is a qualified carpenter and licensed builder. In 2015, Mr Jaensch had an income of $75,000 per annum, had total assets with an estimated value of $625,000 and liabilities of $3,000 (Merilyn’s affidavit sworn 28 September 2015 at [4], [6]). Merilyn’s evidence is that Mr Jaensch’s income has now increased to $89,000 per annum and the estimated value of his total assets has increased significantly since 2015 and are now valued at approximately $1,032,150. Mr Jaensch has estimated liabilities of $5,000 per month (being a monthly trade account at Bunnings) (Merilyn’s affidavit sworn 5 August 2020 at [11]).

32. [958]

    Merilyn’s evidence is that the only inter vivos gift she received from her parents was a payment of $10,000 in the 1980s (Merilyn’s affidavit sworn 28 September 2015 at [14]).

33. [959]

    Bruce was born in February 1965.

34. [960]

    Bruce completed a Bachelor of Arts degree. Bruce is presently employed by the government “in a temporary position” (Bruce’s affidavit sworn 6 August 2020 at [8]). Bruce presently earns a net income of $56,002 per annum (Bruce’s affidavit sworn 6 August 2020 at [14]). Edwina presently earns a net income of $7,190 per annum, but the source of her income is not disclosed in evidence (Bruce’s affidavit sworn 6 August 2020 at [14]).

35. [961]

    Bruce gives evidence that he and Edwina have total net assets with an estimated value of $370,525.92 (Bruce’s affidavit sworn 6 August 2020 at [14]). However, this amount appears to exclude superannuation entitlements which are, for Bruce and Edwina in aggregate, $211,753.33 (Bruce’s affidavit sworn 6 August 2020 at [14]). Therefore, it is said by Geoff that Bruce and Edwina appear to have net assets of $582,279.25.

36. [962]

    Geoff points to the evidence that Bill and Jill gifted Bruce and Edwina: (i) $6,000 in 1991 (Bruce’s affidavit sworn 28 September 2015 at [20]; (ii) $5,000 in the mid 1990’s to buy a car (Edwina’s affidavit sworn 28 September 2015 at [16])); (iii) a further $50,000 in about 2005 when Bruce and Edwina bought their first home (Edwina’s affidavit sworn 28 September 2015 at [17])); and (iv) a further $20,000 in June 2013 (Edwina’s affidavit sworn 28 September 2015 at [19]; Bruce’s affidavit sworn 28 September 2015 at [21]).

37. [963]

    Bruce suffers from a number of medical ailments (being broad-based disc herniation, depression, Profound Hashimoto’s Thyroiditis and Eosinophilic Oesophagitis) (Bruce’s affidavit sworn 28 September 2015 at [17]; Bruce’s affidavit sworn 6 August 2020 at [9]-[12]). Bruce gave evidence in 2015 (some five years ago) that he and Edwina were considering starting a business and that he and Edwina estimated that their costs of doing so would be at least $140,000 in the first year of operation (Bruce’s affidavit sworn 28 September 2015 at [18]); Edwina’s affidavit sworn 28 September 2015 at [104]). Bruce has not provided any evidence concerning this proposed business in his more recent 6 August 2020 affidavit.

38. [964]

    At the time of the hearing Geoff had recently become separated from his former de facto partner, Fiona, and they were no longer co-habiting (Geoff’s affidavit sworn 4 August 2020 at [32]-[36]).

39. [965]

    This has been dealt with above.

40. [966]

    Geoff was born in 1960 and, as at the date the final hearing commenced, was 60 years old (Geoff’s affidavit sworn 4 August 2020 at [37]).

41. [967]

    It is said that Geoff made considerable contributions to the conservation and improvement of his father’s estate, including the matters set out above.

42. [968]

    Geoff’s evidence is that from 1978, when Geoff leased the “top end” of the Woolshed Block, he conducted significant unpaid work on the “top end” of the Woolshed Block by, inter alia, putting up new fences, clearing dead timber and rock, contouring and cultivating arable soil, controlling annual and woody weeds and planting improved pasture species (Geoff’s affidavit affirmed on 30 March 2015 at [15]).

43. [969]

    Once Geoff had completed a wool classing course in 1983, Geoff undertook all of the wool classing for the sheep located on Pindaroi and was never paid for this work (Geoff’s affidavit affirmed on 30 March 2015 at [53]-[54]).

44. [970]

    Following the purchase of the whole Woolshed Block by Geoff, Geoff was no longer paid for conducting work on his parents’ land. However, Geoff conducted considerable unpaid work on his parents’ Pindaroi property including, inter alia, operating the harvester at harvest time, driving grain trucks and tractors, fixing machinery, welding, wool classing, mustering sheep, organizing casual labour, lamb marking, pregnancy testing, spraying annual weeds, fencing and general property maintenance, serving windmills and designing and building sheep yards (Geoff’s affidavit affirmed on 30 March 2015 at [21]). Geoff also estimates that he reinvested approximately $300,000 into improving Pindaroi while leasing the property (Geoff’s affidavit affirmed on 30 March 2015 at [37]). These improvements included, inter alia, overhauling the existing water system to run stock water to most of the paddocks, “farm-over banking the existing contour banks” which had the effect of mitigating erosion; remedying “salt scalds”, removing old fences, maintenance of existing fencing and erecting approximately 30kms of electric fencing and 12kms of conventional fencing, bulldozing tree debris, fertilising and sowing paddocks, clearing land, spraying weeds and extensively renovating the homestead located on the property (including upgrading and modernising the kitchen, bathroom, electrical wiring system, the plumbing system, relining rooms with new gyprock, internal building, painting, installing new floor coverings and replacing rotten timbers) (Geoff’s affidavit affirmed on 30 March 2015 at [39]).

45. [971]

    It is said that Geoff contributed the majority of the labour on The Springs (on an unpaid basis) (Geoff’s affidavit affirmed on 30 March 2015 at [26]); Geoff’s affidavit affirmed 8 December 2015 at [12]). This included facilitating the shearing of Bill’s 3,000 to 6,000 sheep (with the stock he held varying from time to time), crutching the sheep and undertaking fencing work (Geoff’s affidavit sworn 8 June 2017 at [68], [223]; Geoff’s affidavit affirmed 8 December 2015 at [70]).

46. [972]

    Although it is the case that Geoff, from time to time, had the benefit of using Bill and Jill’s equipment, it is said that this was a reciprocal arrangement (Geoff’s affidavit affirmed 8 December 2015 at [40]). For example, it is said that Bill and Jill used Geoff’s woolshed, shower dip and sheep yards for many years free of charge (Geoff’s affidavit affirmed 8 December 2015 at [28]).

47. [973]

    As to the assertions made by Merilyn and Bruce to the effect that Geoff received significant gifts throughout his life from Bill and Jill, Geoff says that many of the “gifts” given by Bill and Jill to Geoff were business transactions between Bill and Jill on the one hand and Geoff (or Geoff and Kaye) on the other, involving land transfers and sale contracts, which he says appear to have included favourable terms in recognition of his contributions to the relevant assets through the provision of his labour.

48. [974]

    It is accepted that in relation to the Woolshed Block, there is some uncertainty as to the amount paid by Geoff. This is said to be unsurprising given the time since the property was purchased in 1985. The property was sold for $145,214. Geoff’s evidence is that Bill unilaterally decided artificially to inflate the price as the property was purchased prior to the introduction of Capital Gains Tax and the inflated price would assist Geoff with minimising any future Capital Gains Tax liability if he decided to sell the property in due course. It is Geoff’s recollection that he was released from paying $30,000 of the price upon the purchase to reflect either the fact that the price had been artificially inflated and/or to reflect the capital improvements he made to the property. Geoff says that it is unclear to what extent the apparent gift he received (by way of debt forgiveness) was given by reason of Geoff’s capital works conducted on the land when he was leasing it and/or to reflect the fact that the price of the land had been artificially inflated by Bill.

49. [975]

    In relation to Pindaroi, it is said to be uncontroversial that Geoff and Kaye agreed to purchase the property for $1,150,000. Reference is made to Geoff’s evidence of a conversation he had with his father in which Bill told him that he considered Pindaroi to be worth $700,000 but that he wanted to inflate the price by $450,000 to reduce any future Capital Gains Tax liability should Geoff sell the property in the future. This is said to be consistent with the fact that the sum of $450,000 of the purchase price was forgiven by Bill and Jill at the time of the purchase. In that conversation, Geoff says that Bill told him that he and Kaye could pay him and Jill $200,000 for the property over the following ten years at which time they would “gift” Geoff the remaining $500,000.

50. [976]

    It is noted that much of the evidence relied on by Merilyn and Bruce as to gifts allegedly given to Geoff is based on conversations witnesses are said to have had with Bill and Jill. Geoff says that Merilyn and Bruce (as well as Sue) also received financial assistance from their parents. In addition to the inter vivos gifts referred to above, Geoff points out that each of Merilyn, Sue and Bruce inherited $595,000 from Jill’s estate (Sue’s affidavit sworn 22 July 2015 at [44]; Bruce’s affidavit sworn 28 September 2015 at [20]). In contrast, Geoff received Jill’s share in some farming equipment located on Pindaroi (although it is unclear whether there was any equipment of this nature) and, although he was entitled to receive a one quarter share in land known as Bassett Downs, he did not receive his full entitlement (as explained above).

51. [977]

    Insofar as Merilyn and Bruce allege that Geoff also received a benefit by reason of the various loans Geoff is said to have received from his parents (rather than being required to obtain finance from third party sources), while Geoff accepts that this may be correct, he says that it is also the case that The Monowai Partnership was paid significant interest on those funds and accordingly, derived a significant benefit. It is said, by way of example, that some of the funds loaned by The Monowai Partnership to The Springs Partnership were loaned pursuant to a verbal agreement of which one of the terms was that The Springs Partnership would pay the same interest rate as the National Australia Bank was then charging (Geoff’s affidavit affirmed 8 December 2015 at [31], [50])). It is said that this is very likely to have been in excess of any other interest rate available at the time for funds on deposit.

52. [978]

    Geoff relies in this context on the evidence as to Bill’s testamentary intentions referred to above in support of Geoff’s estoppel by encouragement claim. However, it is submitted that there are also a number of other significant events which are relevant to Bill’s testamentary intentions, namely, what was said at the family meeting following Jill’s death (see above and Sue’s evidence as to the conversation(s) with Bill in December 2013 at Coffs Harbour (see above)).

53. [979]

    Geoff says that Sue provides critical evidence concerning Bill’s testamentary intentions. Geoff submits that it is apparent from the Coffs Harbour conversation that: Bill wanted to change his Will either to leave Geoff his interest in The Springs or 25% of his estate; and that Bill wanted Geoff to own the entirety of The Springs and had decided to leave it to him or leave him with sufficient funds to purchase it from his siblings.

54. [980]

    Against this it is noted that Bruce and Edwina claim to have had a number of conversations with Bill concerning his testamentary intentions (Bruce’s affidavit sworn 28 September 2015 at [143], [146], [160], [161], [164]-[170]; Edwina’s affidavit sworn 28 September 2015 at [40], [59], [60], [85]-[87]; Edwina’s affidavit sworn 26 April 2018 at [21]).

55. [981]

    Geoff thus submits that if he is unsuccessful in his estoppel claim (as it turns out he has been) then further provision should be made for him out of Bill’s estate and/or notional estate. The amounts distributed to residuary beneficiaries by way of partial distribution out of Bill’s estate might have been available to be designated as notional estate but ultimately it is not necessary to consider any issue of notional estate as I consider that proper and adequate provision can be made out of Bill’s share of The Springs (see below).

56. [982]

    Merilyn and Bruce submit that Geoff has not demonstrated that he has been left without adequate or proper provision. Reference is made to Geoff’s financial circumstances, as set out in his affidavit sworn 4 August 2020, to the effect that he: operates a “highly successful biological consultancy business” which turns a profit; owns farming property on his own account (a half-share of The Springs) and with Fiona (his former de facto partner); continues to farm The Springs land; has been able to provide substantial five and six figure cash gifts to his children and to Fiona; has “total net assets” of $493,942 in his own right, and $1,630,298 of assets held with other persons (including the residuary interests in Bill’s estate); has total monthly expenditure of $3,201; and has a current gross income of $92,204 plus any consultancy income (which the previous year was $44,133). (Complaint is here made by Merilyn and Bruce that Geoff does not provide an easily ascertainable figure for net income as required by the Practice Note SC Eq 7. I note, however, that it was not suggested in their submissions that there was an issue of lack of disclosure of the kind that may have warranted dismissal of the claim along the lines of the principles considered in Stone v Stone [2019] NSWSC 233.)

57. [983]

    Merilyn and Bruce say that Geoff was able to take drawings of $518,624 in 2016 from his sole trader business, and he sold his Clancy’s Drive property in 2017; and was able to give Fiona a gift of around $100,000 in 2015 and made numerous gifts to his children.

58. [984]

    Merilyn and Bruce do not accept the amounts and values ascribed to Geoff’s assets. It is said that Geoff has also no doubt been assisted by the undisclosed assets of Fiona, who was Geoff’s de facto partner until 19 July 2020. However, it is submitted that, even on his disclosed financial circumstances, Geoff has not been left without adequate provision.

59. [985]

    Merilyn and Bruce also point to a property search disclosing that Geoff sold his half of Hurricane Hill for $410,000 on 23 April 2020 to OHM Pty Ltd (OHM), a company of which Geoff and Fiona are the directors (Bruce’s affidavit sworn 6 August 2020 at [53]-[54]), Annexures G and H). Complaint is made that Geoff did not disclose in his updating evidence the financial records for OHM, the trustee of his superannuation fund (which was set up by Fiona) and that he has disclosed very little about this transaction and this entity. (Geoff’s evidence at T 142.49-143.5, which was given in what seemed to me to be a resigned way, and which rang true, was that the sale to OHM was the only option to fund this litigation.)

60. [986]

    Merilyn and Bruce say that their parents provided Geoff with significant benefits during his lifetime. They note that, as a son who wished to farm, he was provided with award wages and accommodation at Pindaroi, the family farm, upon leaving school in 1977; and that he was also given exclusive use of the “top end paddock” (some 389 acres) from which he could earn income. Merilyn and Bruce note that Geoff was assisted to purchase his half of The Springs in 1985 with loans from his parents over decades; and they say he was also given loans and price discounts from his parents to purchase the Woolshed Block in 1984.

61. [987]

    Merilyn and Bruce say that Geoff’s purchase of the rest of Pindaroi farm in 1998 (“ostensibly” for $1,150,000) was subsidised by Bill and Jill by way of gifts, discounts and loans which were waived, and a release from a mortgage so that he paid only $200,000.00 for the property, which Geoff sold in 2009 for $4,200,000 (Bruce’s affidavit of 28 September 2015 at [88]). In this regard, Merilyn and Bruce say that the “family truth” was that Geoff received his inheritance early through the transfer of Pindaroi to him by his parents.

62. [988]

    Merilyn and Bruce say that, should it not be accepted that Geoff has been adequately provided for (including the significant provision of the property Pindaroi to him as his “early inheritance”, and substantial gifts, land discounts and waiver of loans during his lifetime), then there should nonetheless be a finding that, in the circumstances, no further provision should be made.

63. [989]

    It is submitted that the contrast in the financial circumstances of Bruce (and his wife, Edwina) and Merilyn (and her husband, Robert) should be considered. Bruce and Edwina have deposed to a modest combined net income of $63,192.00. Their expenses of $84,900.00 per annum well exceed this income. Bruce and Edwina’s net assets are said to be $370,525.92 plus Bruce’s superannuation of $120,553.92 and Edwina’s superannuation of $91,199.41. Merilyn is retired and has a modest income of approximately $62,500 per annum which she receives from her superannuation. Merilyn’s husband, Robert, continues to work and has an income of $89,000 per annum but will be unable to work shortly due to expected surgery, requiring him into forced retirement. Merilyn and Robert’s net assets are said to be $1,216.740.00 plus Merilyn’s superannuation of $578,000 and Robert’s superannuation of $477,000.

64. [990]

    It is noted that Sue has chosen not to put forward her own financial circumstances for consideration but it is nevertheless submitted that all three of Geoff’s siblings (i.e., including Sue) have strong moral claims on the bounty of their father, which it is said, was recognised by his leaving them the residue of his estate.

65. [991]

    Further, it is submitted by Merilyn and Bruce that, if Geoff’s first claim is dismissed with costs, then those costs are not a matter to be taken into account in determining his Family Provision claim; referring to the approach taken in Poche v Poche (2020) NSWSC 835 by Henry J. There, the costs of the plaintiff’s successful family provision claim were capped and the plaintiff was ordered to pay the costs of the estate for the unsuccessful probate claim. Relevantly, see the remarks of Henry J.

66. [992]

    Merilyn and Bruce thus submit that the application for a family provision order should be dismissed, with consideration as to the appropriate costs orders.

67. [993]

    Noting the principles set out above as to the evaluative process required by s 59 of the Succession Act, I have concluded that, considering the matter as at the time of the determination of Geoff’s application, in light of the outcome of the first cross-claim there was not adequate or proper provision made for him under Bill’s Will.

68. [994]

    In this regard, while accepting that Geoff has had the benefit of substantial assistance during the course of Bill (and Jill)’s lifetime(s), in terms of both financial assistance in the form of loans and in the waiver of loans or debt forgiveness given over the years, and accepting that his acquisition of Pindaroi at an effective cost of around $200,000 was understood within the family to be his “early” inheritance, the difficulty as I see it is that Geoff is now left in a position (particularly if ordered to pay costs of the primary claim on which he has not been successful) that he appears to be what may be described as asset rich but cash poor; and at risk that he will be unable to continue to farm The Springs. That is because he will, as a practical matter, presumably need to buy out his siblings’ half share in The Springs if he wishes to remain farming on that land; and if unable to procure finance for that purpose would presumably need to sell The Springs.

69. [995]

    Leaving aside the evidence of Edwina (about which I am cautious due to her obvious self-interest and apparent antipathy towards Geoff) as to the suggestion that Geoff may not intend to retain The Springs (such as her evidence about him looking at brochures for property in Noosa), I have no doubt that it was Bill’s wish (consistent with his testamentary gift of the plant and equipment on The Springs to Geoff) that Geoff be able to continue to farm The Springs. I place considerable weight on the evidence of Sue as to her discussion with Bill in late 2013 (which I accept) as to Bill’s concern that he may need to change his Will so as to enable Geoff to buy out his siblings’ share of The Springs or to leave that share to Geoff. Similar concern was expressed to Bruce.

70. [996]

    Balanced against this is the family understanding that Pindaroi was Geoff’s early inheritance. However, the evidence of Sue leads me to conclude that this was not regarded by Bill as “set in stone” so to speak.

71. [997]

    I accept that the respective siblings have needs of their own and I have taken into account their competing claims on Bill’s testamentary bounty (noting that they received a greater inheritance from Jill than did Geoff, no doubt because of his acquisition of Pindaroi but also that they received some, albeit less, financial assistance in their parents’ lifetime in terms of gifts).

72. [998]

    Also to be taken into account as a relevant factor are the costs that have been incurred in the course of the hearing on both the primary claim (which has been unsuccessful), and the family provision claim. Prior to the hearing Geoff put his costs “to date in these proceedings” as $1,201,658.28, with a “current trust account balance” with Geoff’s solicitors of $265,921.69 (said to reflect the costs of the hearing and additional to the costs already incurred) (Geoff’s affidavit sworn 4 August 202 at [58]-[59]). However, after the commencement of the hearing, a further costs affidavit of 17 August 2020 filed by Geoff deposed that, in addition to the costs previously deposed by his client (noted in the preceding paragraph), his solicitors had rendered a further tax invoice of $47,410 and his solicitor, Mr Martin, expected that Geoff would incur a further $180,000 for professional fees with Martin Legal for the period from 1 to 28 August 2020 (affidavit of Alexander Richard Martin sworn 17 August 2020). It is noted that an additional $104,985.70 had been paid to the Martin Legal trust account.

73. [999]

    Merilyn and Bruce submit that the way in which the costs of the plaintiff should be dealt with, including, if Geoff is successful in any part of the amended statement of claim, is that his costs recoverable out of Bill’s estate be capped by way of a fixed-sum costs order under s 98 of the Civil Procedure Act 2005 (NSW) (referring to Baychek v Baychek [2010] NSWSC 987 at [17] per Ball J).

74. [1000]

    Without determining at this stage the final orders as to costs, it is relevant in my opinion to note that if costs follow the event as in the ordinary course then it might be expected that Geoff would bear Merilyn and Bruce’s costs of the unsuccessful proprietary estoppel claim but that they (or the estate) would bear the costs of their unsuccessful cross-claim. Whether those would balance out is another matter. However, to the extent that Geoff may have incurred costs beyond that for which he might recover in the litigation, the potential of such an outcome is a relevant (though I do not suggest determinative) factor to be taken into account in the family provision claim.

75. [1001]

    On the whole, having regard to the importance that Bill clearly placed on the continued farming by Geoff of The Springs, and Bill’s acknowledgement to Sue that Geoff probably would have had an expectation that he would be left his father’s interest in The Springs, together with the evidence that suggests that Bill may have assumed that Geoff would be in a position to buy out his siblings’ interest in the land, and given that the family understanding as to Geoff’s “early inheritance” seems to have assumed an overall equivalence across both estates, I have concluded that adequate and proper provision was not left for Geoff (insofar as he may now be left unable to retain and continue to farm The Springs); and that the proper provision for Geoff is that, in addition to the interest in The Bassett Grazing Co Partnership, he be given a half share of Bill’s 50% interest in The Springs, such that Geoff’s overall ownership of The Springs (including his existing 50% interest) would be a 75% interest. The burden of that further provision should fall equally on the residuary beneficiaries such that each of the other siblings between them would have an equal share of a 25% interest in The Springs. On the rough figures referred to earlier in these reasons (and adopting the desktop valuation for this purpose), this would mean that the siblings’ share of the residuary estate would be valued at around $1,055,227; and, again, albeit on my rough calculations, that would mean that, taking into account the amount inherited by the other siblings from Jill’s estate and the provision made for Geoff in his lifetime, there would not in my opinion be a marked disproportion in the respective siblings’ inheritances from their parents’ estates. Moreover, this may facilitate Geoff’s ability to retain and continue to farm The Springs, which would accord with what I understand to have been Bill’s ultimate wishes as to the land and consistent with the bequest as to the farming equipment and the like.

Costs

1. [1002]

   As to the question of costs, Merilyn and Bruce say that in circumstances where they have been acting to represent the estate (and the interests of Sue) in the defence of the proceeding (which they say was the appropriate course given Sue’s unwillingness to accept the terms of Bill’s Will, which as executor she was duty bound to defend), their costs of the defence of the proceeding should be paid out of the estate. It is said that even if (as he has been) Geoff is successful in obtaining further provision consideration should be given to the making of a special costs order.

2. [1003]

   As the parties seek to be heard on the question of costs, I will make directions to permit that to occur. If possible, I will deal with costs on the papers.

Orders

1. [1004]

   For those reasons, I make the following orders:

   1. (1)

      Dismiss the first cross-claim.

   2. (2)

      Dismiss the second cross-claim with no order for costs.

   3. (3)

      In addition to the bequest in the plaintiff’s favour under the deceased’s Will, order that there be further provision out of the estate of the late William Bassett in favour of the plaintiff, in the form of a one-half share of the deceased’s 50% share of the land known as The Springs, and that the burden of that bequest should be charged equally over the interests left to the plaintiff’s siblings in respect of the land; to the effect that the siblings’ interest in The Springs, as part of the residue of the deceased’s estate, is reduced to a 25% share of the land, to be held as between them in equal shares.

   4. (4)

      Otherwise dismiss the amended statement of claim.

   5. (5)

      Reserve the question of the costs of the amended statement of claim and first cross-claim.

   6. (6)

      Direct that the parties file brief written submissions on the question of costs within 14 days, with a view to dealing with the matter on the papers if possible