Cash v Cash & Anor

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
CASH v CASH & ANOR
[2024] SASC 47
Judgment of the Honourable Auxiliary Justice Bochner
ESTOPPEL - ESTOPPEL BY CONDUCT - ACT, OMISSION OR ASSUMPTION - ACQUIESCENCE, ENCOURAGEMENT OR SILENCE
ESTOPPEL - ESTOPPEL BY CONDUCT - PROPRIETARY ESTOPPEL
EQUITY - TRUSTS AND TRUSTEES - IMPLIED TRUSTS - CONSTRUCTIVE TRUSTS - OTHER PARTICULAR CASES
Claim by the Applicant for an equitable interest in farming land controlled by the Respondents – Whether the Respondents represented that the Applicant would have a proprietary interest in the farm if he returned to work there – Whether the oral representations were subsequently reinforced by the Respondents – Whether the crux of the representations was repeated – Whether the Respondents passed responsibility for the farm to the Applicant – Whether the Applicant changed his position to his detriment in reliance on the representations – Whether the Applicant suffered detriment notwithstanding benefits provided to him by the Respondents – Whether enforcement of the promise that the Applicant would have a proprietary interest in the farm would be disproportionate to the detriment suffered by him.
Held: The Respondents (through the First Respondent) represented that the Applicant would eventually “take over” the farm if he returned – The Respondents’ conduct reinforced the representations – The Applicant gave up employment, study, financial, investment, and social opportunities – The Applicant acted in reliance on the representations made by the Respondents, rather than on a mere hope that he would take over the farm – Any benefit provided by the Respondents did not disentitle the Applicant to relief – The Applicant has established all elements of a proprietary estoppel by encouragement – The only relief proportionate to the detriment would be enforcement of the promise of a proprietary interest. The parties are to be heard further as to the precise nature of the remedy.
Public Trustee Act 1995 (SA); Trustee Act 1936 (SA), referred to.
Macquarie Developments Pty Ltd & Anor v Forrester & Anor [2005] NSWSC 674; Carter v Brine [2015] SASC 204; Sidhu v Van Dyke [2014] HCA 19; Kramer v Stone [2023] NSWCA 270; The Commonwealth v Verwayen (1990) 170 CLR 394; Delaforce v Simpson-Cook [2010] NSWCA 84; Rodda & Anor v Ian Rodda Pty Ltd & Anor [2015] SASC 95; E Co v Q [2018] NSWSC 442; Q v E Co [2020] NSWCA 220, considered.

CASH v CASH & ANOR
[2024] SASC 47
Contents
Vincent’s claim
The witnesses
The legal framework
Specific findings of fact
The July 2003 telephone call
The visit to Red Hill
The Daw Park conversation
Were Denis and Mary in Adelaide together at the relevant time?
Did a conversation such as that alleged by Vincent occur at Daw Park on the Sunday morning, and if so, what was its content?
Finding in relation to the Daw Park conversation

The work carried out on the Greenhouse by Vincent
Julie
Vincent’s farm work
Meetings with professional advisors and succession planning activities
Meeting of 13 July 2004
Meeting of March/April 2006
The 2008 meeting
2010 Business Review with Bart Dessart
Meeting in August 2011
September 2012 - Family letter
Meeting of 17 December 2012
Meeting on 21 March 2014
Meeting on 7 April 2014
June 2014
Meeting 20 August 2014
Meeting of 17 December 2014
Meeting at a shed on the farm, possibly in late 2014
Meeting January 2015 with Andy Bates
Meeting at Wudinna Telecentre on 24 February 2015
Telephone discussion on 25 February 2015 and meeting on 2 March 2015 with Greg Nicholls of Nicholls Gervasi
Letter from Vincent to his siblings dated 12 March 2015
Letter from Tony Hull of Clarke Pomeroy Hull dated 2 April 2015.
Letter from Brad Giles of Complete Business & Accounting Services dated 4 December 2015
Meeting on 9 February 2016
Vincent’s account of the meeting
Thomas’ account of the meeting
Denis’ account of the meeting
Mr Giles’ account of the meeting
Findings in relation to the 9 February 2016 meeting

The letter from Mr Orfanos
Mary’s letter of 14 March 2023
The expert reports
Findings with respect to the farm and its profitability
Findings on the question of liability
Did Denis made a representation to Vincent that he would have a proprietary interest in Oakfront, being property owned or controlled wholly or partly by Denis, if he returned to work on the farm?
Did Vincent form an assumption that he has or will have a proprietary interest in Oakfront?
Did Denis’ conduct in making the representation cause or materially contribute to the formation of that assumption by Vincent?
Did Vincent change his position in reliance on that assumption?
Would Vincent suffer detriment if Denis were permitted to depart from the assumption?
Would it be unjust or unconscionable for Denis to depart from the assumption?

Remedies
Vincent’s submissions
The company’s submissions
Denis’ submissions
Consideration
The principles
CIVIL

The applicant, Vincent Cash, claims an equitable interest in farming land which is controlled by his father, Denis Cash. In order to understand the factual basis of Vincent’s claim, it is necessary to outline the history of the farm known as Oakfront. I will refer to the majority of the people involved in this action by their first names as most of them share the surname, Cash. I mean no disrespect by this.
Oakfront is situated between Streaky Bay and Port Kenny on the Eyre Peninsula in South Australia. It comprises approximately 17,500 acres, of which approximately 6,000 are arable and the remainder are suitable for grazing. Situated on the farm is a geological formation known as Murphy’s Haystacks. Murphy’s Haystacks are a tourist attraction and have heritage recognition. They generate substantial income for the farm, through gold coin donations from visitors.
Oakfront has been in the family of the first respondent, Denis Cash, since about 1888, when his grandfather, Denis Murphy, commenced farming there. It appears that Denis Murphy left Oakfront to his son, Pat Murphy, who was Denis Cash’s uncle. Meanwhile, Denis Cash, who was born in 1941, grew up on his father’s farm which was about four miles away.
In 1959, when he was 18 years old, Denis commenced working on Oakfront to help his uncle, because Pat Murphy and his wife Mary Murphy did not have any children of their own. Denis has lived and worked on Oakfront ever since.
Initially, Denis worked for Pat Murphy for no wages. There was another worker on the farm at this time, who did receive wages.
In about 1966, Pat Murphy transferred to Denis and his brother, John, part of the Oakfront land known as Witera. Witera was on the eastern side of the highway, with the Oakfront land extending to the western side of the highway as well. The home block, where Denis was living at that time, was on the western side of the highway. He worked the land on both sides of the highway. At this time, John was working on their father’s farm and not on Oakfront.
In 1967, Denis married Mary. In 1968, he applied for a wheat quota and received a quota of about one tonne. Any extra wheat that he grew, he gave to Pat Murphy. At some point, he was given about 300 sheep by Pat Murphy.
In 1972, Mary Murphy died. At this time, John came to work on Oakfront with Denis and Pat Murphy transferred to Denis and John the home block, as a result of which they owned the land on both the eastern and western sides of the highway as tenants in common. During this time, Denis and John did not receive any wages, although they drew from the farm’s accrued savings when necessary.
When asked about the transfer of land from Pat Murphy to Denis and John, Denis’ evidence was that he:
…had no reason to assume that he would transfer the land to me or John.[1]
[1] T495.14-15.
He said, however, that he was “pleased, not surprised” when the land was transferred to him.[2] He subsequently agreed that it was a fair and just thing for Pat Murphy to have done, given that he had worked on the farm for no wages for thirteen years by the time of the transfer.[3]
[2] T495.18.
[3] T500.21-31.
Pat Murphy died in 1976.
In 1980, John and Denis bought an adjoining property called Maryvale. To purchase the property, they mortgaged both Maryvale and Oakfront, the latter of which was, until this time, unencumbered. The Maryvale and Oakfront bank accounts were kept separate, although Maryvale appeared to benefit more from this arrangement than Oakfront, to the extent that more was paid off the mortgage over Maryvale than that over Oakfront.
John and Denis had a falling out and, according to Denis, John refused to discuss the accounts. They ended their joint farming operation, with John taking Maryvale and Denis taking Oakfront, but at this point the mortgage over Maryvale had been discharged, while the mortgage over Oakfront, which had been used to purchase Maryvale, remained. Denis said that, at this time, he was broke but was able to retain Oakfront with the assistance of a bank manager in Port Lincoln. He felt that the division of property with John was far from fair, as Maryvale was twice the size of Oakfront, whereas they had both contributed equally prior to the split. Denis believed that there was injustice in the way that he was treated by John, as he was left with all the debt while John retained the larger property.
Denis and Mary have nine adult children. Other than Vincent, only two, Michael and Thomas, are directly relevant to the dispute which is the subject of this action. Mary was born in 1947. She worked as a care worker in 2007 and 2008; otherwise, she has worked on the farm, since her marriage to Denis.
Vincent is the fourth eldest child of Denis and Mary and was born in 1978. Michael was born in 1974 and is an engineer, living in the United States. Thomas was born in 1985 and is a farmer. Vincent and his brothers were educated at Sacred Heart College in Adelaide where they attended as boarders. His sisters were educated at Loreto College where they also boarded.
The Oakfront Pastoral Co Pty Ltd (“the company”) was established on 4 April 1996. On 26 April 1996, the company became the trustee of the Oakfront Property Trust (“the trust”). The trust deed of the trust originally defined the “Trust Fund Beneficiaries” of the trust as the children, grandchildren and remoter issue of Denis and Mary, and the “Secondary Beneficiaries” as including the children, grandchildren and remoter issue of Denis and Mary. The trust owns the Oakfront property and the farming operation. Until 2017, Denis and Mary were not beneficiaries of the trust. On 29 June 2017, the trust deed was varied so as to add them as income beneficiaries of the trust.
There is currently one issued share of the company. Initially, this was owned by Trevor Morgan; it was transferred to Michael on 17 September 1997. At the time of the transfer of the share to him, Michael signed a declaration of trust, acknowledging that he held the share on trust for Denis (incorrectly designated “Dennis” in the declaration of trust). On 4 May 2010 Michael transferred the share to Denis who is now the sole shareholder of the company.
Trevor Morgan was the sole director of the company from the time of its establishment until 17 September 1997. Denis has been a director since 17 September 1997. Vincent was a director from 16 September 2010 to 10 February 2016. Thomas was a director from 1 March 2015 to 10 February 2016. On 11 August 2017, Thomas, Michael and Mary were appointed directors. At the time of trial, Denis, Mary, Thomas and Michael were the directors of the company.
It was Denis’ evidence that his brother John set up the Oakfront Property Trust. He said that he, himself, did not fully understand how it operated.[4] Indeed, it appeared that, even as he was giving his evidence, he did not appreciate that he was not a capital beneficiary of the trust,[5] nor could he explain why the trust deed was amended to include Mary and him as income beneficiaries in 2017.[6]
[4]    T499.32-35, T501.9-10.
[5]    T503.28.
[6]    T503.34-38.
Over the years, Denis and Mary have made a number of wills. In 2000, they made wills in identical terms, in which they left their estate to each other, and the survivor of them left their estate in equal shares to their children. In 2018, they made new wills. By his 2018 will, Denis leaves his share in the company to Mary, and if she predeceases him, to Michael. He leaves the residue of his estate to Mary, and if she predeceases him, to all of his children in equal shares. Mary, by her 2018 will, leaves the share in the company if she owns it at the time of her death, to Michael. She leaves the residue of her estate to Denis, and if he predeceases her, to all of her children in equal shares.
At various times, share farmers have been involved with the farm. In addition, during the millennium drought from the late 1990’s to about 2009, Denis ran a fencing business to supplement the farm’s income.
During the late 1990’s and early 2000’s, various of Denis’ and Mary’s sons worked on the farm. Michael worked on the farm in 1999, during which time he set up the fencing business, however the farm had a bad year, and he returned to work in the mining engineering industry. He returned to the farm in 2002, but again did not stay. His evidence was that his intention was to stay on the farm, but his parents would not allow him to live on the farm with his then girlfriend, Kathy (now wife) while they were unmarried. He moved to the United States shortly afterwards and has lived there ever since. He and Kathy married in 2004.
Mary’s evidence was that Michael left the farm in 1999 because of the drought.[7] She said that, while Michael was on the farm, he did most of the hard work as he was young, with Denis’ assistance.[8]
[7] T754.31-32.
[8] T755.13-24.
Gerald worked on the farm on and off in 2000 and 2001 and for most of 2002. He moved permanently to Adelaide in 2003.
In 2003, Thomas, who had just finished school, returned to the farm to do a farm-based traineeship through TAFE. He met his future wife, Jodie, in Port Lincoln in early 2003. His evidence was that he moved to Port Lincoln in February 2004 to become a mechanic.[9] He subsequently commenced working in the tuna fishing industry, where he remained for the next ten years.
[9] T418.8-15.
In 2002 and 2003, Vincent returned to the farm to assist with shearing, seeding and fencing. At this time, he was working in Adelaide at Bone Timber as a wood machinist, having completed an apprenticeship in 1998. He also studied graphic design part time between 2000 and 2003.
Vincent met his now wife, Julie, in 1998. By 2003, they were talking about buying a house together and starting a family. Julie is an enrolled nurse, and in 2003, she was working at Shine, involved in the distribution of medical supplies to clinics in South Australia.
Vincent’s claim
Vincent says that he always enjoyed living and working on the farm, and as a child and teenager, assisted his parents as required, as did his siblings. Until 2003, however, he pursued a career away from the farm, because other siblings were already working on the farm and he considered that one of them was more likely to take it over.
In 2002 and 2003, Vincent returned for several weeks to assist with shearing and other farming activities. Julie came with him, both at Easter time in 2003 and again in August 2003 for the shearing, when she helped Mary clean and prepare quarters for the shearers.
Vincent says that by 2003, the farm was becoming run down and seemed to be becoming too much for Denis to manage on his own. He mentioned to Denis that things seemed to be getting pretty hard, and Denis replied that he was getting too old to do the work on his own.
Vincent says that, in July 2003, Denis telephoned him, and said words to the effect of:
The workload is getting beyond me. I am concerned about the future of the Farm. Michael and Gerald have moved on and Thomas has left. Someone is going to have to take over the Farm if the Farm is to keep going. There is an opportunity available if you want it.[10]
[10] A1, [61].
Vincent told Denis that he was interested and wanted to think about it. He then had a discussion with Julie about a future on the farm. Julie said she would be interested in talking about it.
Shearing occurred between 4 August 2003 and 10 August 2003. After Julie and Vincent had returned to Adelaide on its completion, Denis telephoned Vincent and asked him to meet him at Redhill, about two hours north of Adelaide, on 6 September 2003 with Paul Oster, a breeder of merino sheep. Before meeting with Paul Oster, Vincent, Julie, Denis and Mary had lunch and discussed Vincent’s return to the farm. During this conversation, Julie told them that she would be interested in moving to the farm. They then went to Paul Oster’s farm to talk to Mr Oster about changing their merino bloodline to allow them to produce finer wool.
It was the evidence of both Vincent and Julie that, after the meeting with Mr Oster, Denis and Mary returned with them to Adelaide. Denis and Mary stayed at Vincent’s house in Daw Park that night; after Denis returned to the farm on 7 September 2003, Mary stayed a few extra days as she was flying to the United States to attend Michael’s wedding.
At breakfast on 7 September 2003, before Denis’ departure, Vincent and Julie said that a further conversation took place with him about the possibility of their moving to the farm. It was Vincent’s evidence that, while Mary was present, she did not contribute to the conversation, which was driven by Denis.
It was Vincent’s evidence, corroborated by Julie, that, during the conversation, Denis made the following representations to them:
·The farm had great prospects, with plenty to do and income potential;
·Streaky Bay was a wonderful place with a great lifestyle;
·Murphy’s Haystacks had a lot of potential for development as a tourist attraction and was soon to be featured on “Postcards with Keith Conlon” on Channel Nine;
·If Vincent came back to the farm, he would have a major say in the farm operations and would eventually take it over;
·He was getting too old to continue to work the farm on his own, it was getting run down and if no one came home, it would have to be sold.
Vincent and Julie both said that Denis told Julie that the farm was a great environment to raise children and asked her how old she was. When she told him that she was 32, he told her that his own mother was 32 when she had her first of eight children. They also said that Julie asked Denis which of his children he expected was most likely to return to the farm, and he replied, “Vincent”.
I will refer to these representations collectively as “the representations”.
Over the next few weeks, Vincent and Julie discussed the possibility of moving to the farm. Julie was initially cautious as she had grown up in the city and was aware that country life would be very different for both her and Vincent, as well as for any children they might have. Further, she was settled in her employment and earning a good income. She agreed, however, to try it for a year. Her employer, Shine, agreed to give her a year’s leave without pay. She began applying for positions in Streaky Bay.
In about November 2003, Vincent told Denis that he and Julie were moving to the farm in early 2004. Vincent gave notice at Bone Timber. He then had a telephone conversation with Denis about security for himself and Julie. He said that Denis’ response was that they would sort it out when Vincent returned.
Denis and Mary proposed that Vincent and Julie live with them in the main house to start with. On the property, there was another house, referred to as the Greenhouse, which was historically used as shearers’ quarters. Denis and Mary suggested Vincent and Julie could renovate the Greenhouse for their use.

Vincent moved to the farm in March 2004 and Julie joined him in May 2004. They lived with Denis and Mary in the main house until the Greenhouse was ready for them to move into. Julie began working as a community health nurse one day per week and also worked as a carer.
When Vincent returned to the farm in 2004, it was under considerable stress. The farm had been in drought for a number of years, and the drought continued to have a significant impact on its profitability. Fencing had become rundown, and the farm machinery was old and needed repairs and maintenance. In addition, there were fencing contracts booked that needed to be fulfilled. Vincent worked between 50 and 60 hours each week. He did not receive wages but was provided with food and accommodation in the main house. He was not concerned about not receiving wages as his understanding was that he would ultimately take over the farm. If he required cash when he went to Adelaide or Streaky Bay, Mary would give him some.
During 2004, a number of paddocks were leased to another farmer through a share-farming arrangement. Denis and Vincent continued to run sheep on the farm and also cropped part of the land for stock feed. The main income for the farm at that time was through share-farming and the fencing business. Decisions were made jointly by Denis and Vincent.
During 2004, the farm changed the bloodlines of the sheep to introduce a fine wool bloodline. This was done following the visit to Redhill in 2003 and with the assistance of Mr Oster.
Share-farming continued in 2005. The only cropping carried out by Denis and Vincent was for stock feed because of the poor returns as a result of the drought. During 2005, Vincent worked on increasing the arable land on the farm, removing stumps and rocks and improving the soil.
During 2005, Vincent started doing the bookkeeping for the company, using MYOB. He prepared annual cash flow reports and budgets and prepared its business activity statements. The company was overdrawn on its overdraft and Vincent and Denis worked with the bank to refinance.
Vincent and Denis continued the fencing business in 2005 and 2006 as the returns from the farming operation were poor because of the drought. Vincent did the majority of the physical work with Denis’ assistance. In 2006, they had a change of share-farmer.
During this period, Vincent worked without wages and Julie’s salary provided for their financial needs. Vincent received a “drought force payment” through Centrelink; as it was means-tested, it varied according to Julie’s income. The Centrelink payment was used to top up their living expenses and for farm expenses.
Julie and Vincent married in 2008.
The drought continued through 2008 and the farm largely survived on government payments. On 31 March 2009, Denis and Vincent were advised by their share-farmer that he was no longer able to continue share-farming as he had been made bankrupt. Because of the late notice, only about half of the land was cropped that year; Denis and Vincent did not have time to organise another share‑farmer or to put in their own crop. 2009 was a better growing season and Vincent proposed to Denis that they recommence cropping more of the land themselves. Denis was not receptive to this suggestion.
In 2010, the situation on the farm continued to improve and again, Vincent suggested that they should be cropping more of the land. Denis disagreed and they leased the cropping to two tenants.
In early 2013, Thomas began visiting the farm on a regular basis. At times, he would carry out farm work and leave his two children with Julie, who was looking after her and Vincent’s two small children while pregnant with their third child. Eventually, Vincent raised with his parents the extra burden that Thomas’ visits placed on Julie, and the visits of Thomas’ children ceased.
From that time, Vincent began to feel that he was being marginalised by Thomas and Denis. He gave an example of an incident where he discussed with Denis and Thomas his intention of tidying up stumps and stones with a wheel loader that had recently been purchased. When he went to the main house the next morning at 7.30am, he found that Denis and Thomas had already left, and in fact were already in the paddock with Thomas operating the loader. When Vincent took over the operation of the loader, Denis and Thomas left in Vincent’s vehicle, leaving him without transport.
By the middle of 2013, relations between Denis and Vincent had deteriorated as they argued about borrowing money and the future direction of the farm. Vincent’s own financial situation had also deteriorated as Julie was currently not working as she had recently given birth to their third child. Without her income, they were not able to afford things like their phone and internet expenses. They then began to hear rumours about Thomas’ intention to return to work full time on the farm, although nothing was said to them by either Thomas or Denis.
In late 2013, Thomas resigned from his employment in the tuna industry. He returned to Oakfront in 2014, working part time during the week. His family was still living in Port Lincoln, and they began inspecting rental properties in Streaky Bay to be closer to the farm.
Vincent became concerned that the farm would not be able to support another family and he raised this with Denis. Vincent said that Denis replied:
Thomas is to come home. I can’t do the work on my own. You left me to finish off seeding the previous year, while you went off to Port Lincoln to have your kid.[11]
[11] A1, [264].
Vincent felt aggrieved by this remark. He had gone to Port Lincoln for the birth of his child who was delivered by emergency caesarean section and he was upset at Denis’ criticism of this.
By April 2014, Thomas was working full time on the farm. Relations between Vincent and Thomas, and Vincent and Denis continued to deteriorate, and there was an argument about the need for Thomas to obtain off-farm work, with Thomas and Denis suggesting that it should be Vincent who obtained off-farm work.
Between April 2014 and February 2016, Vincent’s relationships with both Thomas and his parents continued to deteriorate. Vincent felt that he was being further marginalised by his father and brother. Matters came to a head on 9 February 2016, when Denis announced that the farm was to cease trading immediately, and that Thomas and Vincent were to resign as directors of the company and find employment elsewhere. Denis told Vincent that his expectation that he would take over the farm was unacceptable. Vincent ceased working on the farm at that time. Thomas continued to work on the farm.
Vincent remained living at the Greenhouse. Julie had been living in rented accommodation in Streaky Bay with the children since 2015 because relations with her parents- and brother-in-law were so difficult. There were a number of altercations between Vincent and Thomas about the use of farm equipment.
In June 2020, Thomas commenced employment off the farm. At Denis’ request, Vincent returned to work on the farm and by August 2020, he was working 50 to 60 hours per week, with little involvement from Denis. He worked, again, for no wages.
Vincent continued working on the farm during 2021 and 2022. Denis had little involvement and spent most of his time at Murphy’s Haystacks or at home. Most of Vincent’s communications with Denis were through Mary. In early 2022, Julie reduced her hours working as a nurse to work on the farm. The relationship between Vincent and Denis remained fractured and their inability to communicate appeared to cause problems with the management of the farm.
On 7 February 2023, Vincent received a letter from the company, advising him that the farm would cease operating and the stock would be sold off. Vincent ceased working on the farm.
Vincent and Julie remain living at the Greenhouse, with Julie working as a nurse at the Streaky Bay hospital and Vincent undertaking contract work as it is available. These are the circumstances that have led to the action in this Court. I will deal in more detail with various events that occurred over the years as required.
The witnesses
Vincent gave evidence and also called Julie, Paul Oster and Luke Harris, an accountant who gave expert evidence. The respondents called Denis, Mary, Thomas, Michael, Scott Young, an accountant and Bradley Giles, also an accountant.
At the commencement of the trial, Denis was in hospital, having required an emergency medical procedure. While the opportunity to delay the trial was offered, he wished to have the matter proceed as listed. As a result, the trial commenced in his absence. I note that Mary was present in the courtroom throughout all of the evidence, without objection.
Both Vincent and Denis gave their evidence over a number of days and were subjected to rigorous cross-examination. Overall, I was satisfied that Vincent was a truthful witness. He gave his evidence in a straightforward manner and made concessions where appropriate, particularly in relation to the various family meetings and discussions which were held over the years. He did not appear to exaggerate his claims or the promises that he said were made to him, and in respect of a number of significant events, his evidence was supported by independent, documentary evidence.
Mr Duggan KC, who appeared on behalf of the second respondent, urged me to find that Vincent’s evidence evolved to meet the problems faced by his case. He suggested that the language used by Vincent changed according to his understanding of the hurdles that he faced in this action and that his evidence should be treated with caution as he has thought about the matter over many years and discussed it at length with Julie. Examples of this are:
·Whether Denis talked about taking over or taking on the farm; and
·The difference between being a farm manager, a farm worker and a farm owner.
I do not accept the criticisms made by Mr Duggan of Vincent’s evidence. Vincent presented as a fairly unsophisticated person who did not spend his days musing over the semantics of “taking on” or “taking over” the farm. To him, they were the same, and he used the words interchangeably. In cross-examination, Mr Duggan suggested to Vincent that his siblings would have “scoffed” at the idea that Denis had promised the farm to Vincent after his death.[12] Vincent rejected that suggestion. Vincent described his father as saying both “take on” and “take over” the farm. While Mr Duggan sought to make much of the difference in wording, I consider that Vincent used the words interchangeably and no distinction can be made between their meaning. In practical terms, to him they meant the same thing.
[12] T121.29-34.
The same can be said of the difference between farm manager, worker and owner. I have no doubt that, until the relationship between Vincent and Denis broke down, Vincent did not think of his role on the farm in these terms. For many years, he was both the farm manager (perhaps jointly with Denis) and the farm worker and he did not engage in an existential analysis of his role.
I also consider that Julie was a reliable witness who answered truthfully. Other than with respect to the key discussions in 2003, however, she had less direct involvement with Denis and the management of the farm, and so her evidence was of less assistance than Vincent’s. I also have no doubt that her evidence was coloured somewhat by the fact that she felt that Vincent had been treated unfairly by his father, and that she and Vincent had lived in financial hardship for many years with little to show for it save for this action.
Julie was clearly anxious when she was giving her evidence. She struck me as an unsophisticated person who was never going to win the game of semantic cat and mouse that Mr Duggan set for her. I find that she did her best to answer truthfully.
I note that criticism was made of Julie’s evidence by Mr Duggan, in that her statement was, in some respects, identical in its wording to Vincent’s. Mr Duggan urged me to reject Julie’s evidence and sought to impugn Vincent’s evidence on the basis of these similarities. It became clear that Vincent and Julie had jointly prepared a chronology, which formed the basis of their witness statements. Mr Duggan urged me to find that Julie’s statement had been prepared for her on the basis of this chronology, and that “Vincent prepared for his solicitors evidence to be given by Julie placing her at key meetings and putting words into her mouth consistent with key aspects of his case.”[13]
[13] Second respondent’s outline of submissions (FDN 88), [10.1.15].
Mr Duggan further urged me to find that Julie was a poor witness who appeared to rely on her statement rather than on her memory when giving her evidence.
I reject these criticisms. While I accept that the possibility of collusion is raised by the similarity in their statements and the fact that they prepared a chronology together, I do not consider that this negates the truthfulness of their evidence. They are husband and wife who have lived together since 2004 and who have borne the ups and downs of life on the farm together since that time. It would be more unusual if they had not discussed at length the situation that they were in, how they ended up in it, and how they might move forward.
Mr Duggan referred me to the case of Macquarie Developments Pty Ltd & Anor v Forrester & Anor[14] when making his submissions on the question of collusion between Vincent and Julie. In that case, Palmer J said:
The fact that Messrs McGraw and Neskovski colluded in the preparation of what was obviously the decisive evidence in their case casts a cloud over their credibility as a whole and over their evidence as to the discussion in particular.[15]
[14] [2005] NSWSC 674.
[15] Ibid, [65].
I consider that, factually, this matter is so different that it can be distinguished. The witnesses in Macquarie Developments were business associates and the evidence related to two conversations relating to one discrete transaction, occurring four years before the trial at which they gave evidence.
In this matter, Vincent and Julie have given evidence about events that occurred twenty years previously, and which led them to make a radical change to their way of life. It is not surprising that they have discussed those events many times over the years and that each time they have discussed them they have used a similar pattern of words. If any criticism is to be made, it should be made of their lawyers for not taking their statements in a more rigorous manner, rather than of them for discussing matters that would clearly be of paramount importance to any married couple.
Denis was not an impressive witness. His memory was poor, particularly when it came to matters that did not suit his case. The impression that he gave me was of a man who expected to be obeyed and who resented being questioned about his actions and motivations. At times, I consider that he deliberately misunderstood questions so that he could provide the answer that he wanted to give, or avoid answering the question that was asked. An example of this is the following exchange:
Q.I'm suggesting that the politics of the Cash family towards the end of 215 had become highly polarised. It had developed into, effectively, two camps with you and Thomas effectively in one camp, and Vincent in the other.
A.    Why would you say that?
Q.    Well I'm just asking you whether you agree.
A.    I don't agree.
Q.    And things had become tense on the farm.
A.    Tense. Yes, very tense.
Q.    So much so that Julie Cash had left the farm.
A.    Did she?
Q.    And taken rental accommodation in Streaky Bay.
A.    Well, yes.
Q.    And that happened, I suggest, in mid-2015.
A.    Whatever, yes.
Q.    Did that concern you at all.
A.    Not really. Why should it? It was her call.
Q.    So you weren't disturbed that your daughter-in-law had found life on the farm so -
A.    I beg your pardon?
Q.You weren't concerned that your daughter-in-law and three of your grandchildren, had to move off the farm owing to tensions on the farm.
A.    Was it because of tensions on the farm?[16]
[16] T615.13-37.
This was the tenor of much of his evidence: argumentative and non‑responsive.
Generally, I prefer the evidence of Vincent to that of Denis where they are in conflict, unless there is independent corroboration of Denis’ account. I formed the view that Denis was prepared to say whatever was necessary to win his case; he gave the impression of a man who is not used to being told he was wrong, and of one who was not prepared to give any ground even where it was warranted. The best that can be said of his evidence is that his poor memory made it unreliable; the worst that can be said of it is that it was obstructive, argumentative and often untruthful.
I did not consider that Mary was a good witness. She seemed to be defeated by the conflict between her husband and her sons. The impression that she gave was of someone who was reluctant to contradict her husband and so sought to minimise her involvement in any of the discussions that had taken place over the years. At times, her evidence was contradictory; at others, it was simply unbelievable.
I formed the view that whenever Mary was asked a question that she did not wish to answer, she simply said that she did not remember. For example, she said that she did not know if she was on the full pension, nor for how long she had been on the pension:
Q.    Now you're currently on the full age-pension aren't you.
A.    I'm not sure. I don't know that it is the full age.
Q.    How long have you been on the pension.
A.    I'm not sure.
Q.    2011 sound right.
A.    I don't know.[17]
[17] T766.10-16.
While it can be accepted that Mary may not remember when exactly when she commenced receiving the pension, or the actual dollar amount that she receives each fortnight, it is simply not believable that she does not know whether she receives the full pension or not.
Her evidence in relation to a meeting with Phil Stevens, the farm’s accountant in July 2004 is also contradictory and implausible. Her evidence, at first, was that she knew that Vincent and Denis went to see Mr Stevens.[18] At the time that this question was asked, Mary was not being questioned about this meeting; rather, the questions were dealing with her knowledge of a conversation between Vincent and Denis about some sort of security on his return to the farm. Mary volunteered the fact that she was aware that there had been a meeting with Mr Stevens, but otherwise knew “very little” about it.[19] She was then asked specifically about the meeting:
[18] T768.37-38.
[19] T769.2.
Q.    Do you remember Denis and Vincent travelling to see Mr Stevens in July 2004.
A.    I don't actually remember. It's a long time ago. But yes, maybe.
HER HONOUR
Q.Sorry, can I clarify that answer, Mrs Cash. I think you said you don't actually remember it but yes. Does that mean you recall that the meeting occurred, or you don't recall that that meeting occurred.
A.    Well I wasn't there.
Q.    No, but do you remember that they went to meet with Mr Stevens.
A.    I can't actually remember.[20]
[20] T770.15-27.
This latter evidence appears to be inherently inconsistent with her first statement that she was aware that Vincent and Denis met with Mr Stevens in July 2004.
Mary’s unreliability as a witness was further demonstrated by her evidence about how she travelled to Adelaide prior to catching her flight to America for Michael’s wedding in September 2003. This evidence is important, because of the clear conflict between Vincent and Julie on the one hand and Denis and Mary on the other, about whether they had a discussion at Vincent’s house on the Sunday morning before her flight to America, at which Denis made significant promises to Vincent if he chose to return to the farm. It is one of the central features of Denis’ case that this conversation did not occur, not least because he was not in Adelaide on the weekend before Mary left for America and he did not drive her to Adelaide from Oakfront. When asked about this, Mary said that she did not recall how she travelled to Adelaide before leaving for America.[21] The following exchange then occurred between Mary and Mr Riggall:
[21] T772.26-27.
Q.    There was a bus from Streaky Bay to Adelaide in 2003 wasn't there.
A.    Yes. An overnight bus, yes.
Q.An overnight bus, correct. Certainly you didn't take the overnight bus down to Adelaide to travel to the airport to fly to America, did you.
A.    What was that?
Q.I said you didn't take the overnight bus to Adelaide in September 2003 to make your trip to the United States, did you.
A.    I don't know how I came down.
Q.So in fact I suggest that in 2003 the only way that you travelled to Adelaide was by car.
A.If we came to Adelaide it would be by car, but I often travel mainly by bus. Sometimes I - I don't know whether this was in that time, I spent a fair bit of time flying with one of our daughters that I'd had an accident with and that was to bring her back to checks in the hospital.[22]
[22] T773.16-34.

Again, I am unable to accept Mary’s evidence. I consider that it is simply inconceivable that she cannot recall how she travelled from Oakfront to Adelaide to fly to America for her son’s wedding, on what was her first overseas trip. Further, her mention of flying to Adelaide for treatment for one her daughters can only have been to distract and confuse. The injury suffered by her daughter which required medical treatment occurred in 1982[23] when she was a child, and by 2003, she was an adult, living in Adelaide, with a child of her own. Further, Mary said in re-examination that she would not have been travelling by plane from Streaky Bay to Adelaide in 2003.[24]
[23] R1-22, [19].
[24] T806.38-807.5.
The only conclusion that I can draw from this evidence is that Mary was aware of the importance of giving evidence that did not place Denis in Adelaide shortly before her departure for America; the only way she could do this without telling a blatant lie was to profess to have no recollection of how she travelled to Adelaide on that occasion and to seek to confuse.
I am also unable to accept Mary’s evidence about her knowledge of the contents of Denis’ and the company’s defence, and when she first became aware of Vincent’s allegation that Denis had made certain promises to him in September 2003. In her cross-examination, she was asked if Vincent read to her over the phone, two paragraphs of the defence in March 2023 (only six months before the commencement of the trial). Her first answer was:
Maybe, I’m not sure.[25]
[25] T789.18.
She was then asked if she requested Vincent to bring a copy of the paragraphs over to her. She said:
Maybe, yes.
The following exchange then occurred:
Q.Do you remember seeing two pages of paper containing the contents of paras.10 and 11 of the defence. Mrs Cash, while you are doing that I think I might have misdescribed the situation. You came over, I suggest, to the greenhouse and picked up two pages containing paras.10 and 11 of the defence.
A.    Yes.
Q.    Do you remember that happening.
A.    Yes.[26]
[26] T789.22-30.
Her evidence of her recollection of this event went from being not sure, to having a clear recollection of its occurrence. She was then asked a series of questions about visiting the Greenhouse to see Vincent the following day; her answers were, again, extremely guarded:
Q.Now, against that backdrop, I suggest that you went to the Greenhouse the following day, the day after you received the pieces of paper from Vincent, and had a further discussion with him.
A.Maybe, I'm not sure. All I can remember that he's saying that 'Dad phoned me and asked me to come home', and I was shocked to hear that. I said 'And if that was the case, well it has to be fixed'.
Q.One thing at a time. You recall returning to the - going over to the Greenhouse the following day after you had the two pieces of paper.
A. Maybe, I'm not sure.[27]
[27] T792.6-17.
On the one hand, she is extremely cautious about admitting that she went over to the Greenhouse and had a conversation with Vincent about the defence; on the other, she gives evidence about part of the contents of that conversation and her reaction to it. The evidence was given in a way that suggested that her intention was to give non-committal answers, but in an unguarded moment, she answered more fully than she intended.
Mary appears to imply that she learned for the first time in March 2023 that Vincent’s case is that Denis asked him to come home to Oakfront.
This is simply unbelievable. By March 2023, this litigation had been on foot for five years. A mediation had been held and the parties had exchanged proposals to resolve the matter. I cannot accept the suggestion in Mary’s evidence that she learned of the central plank of Vincent’s case for the first time in March 2023, six months before the commencement of the trial and five years after the commencement of the ligation. I have formed the conclusion that she sought to give this impression so as to explain her writing a letter in March 2023 in which she said:
I believe some of the statements in the defence are simply not true; In particular that Denis did not invite Vincent and Julie back to the farm.[28]
[28] Tender book, Tab 112.
She sought to give the impression that her recent discovery of Vincent’s case was the catalyst for her writing the letter. The only other explanation for her letter is that she was aware of the discussions that occurred between Denis and Vincent, and knew that Denis had, in fact, invited Vincent and Julie back to the farm. I consider that she was aware that she could not give this evidence as it would substantially damage Denis’ and the company’s case. I will deal with this letter in full in due course.
As a result, I found Mary to be an unreliable witness.
Thomas did not present as a reliable witness. He was evasive in his cross‑examination and his evidence was, at times, simply unbelievable and unrealistic. For example, he was not prepared to accept that Vincent worked long hours on the farm in 2004. On this topic, he said:
Q.You have no reason to doubt that when Vincent returned to the farm in 2004, before he had children, he was working long hours every day.
A.    I don't believe he was, no.
Q.    But you've no basis to give that evidence, have you.
A.Only from when I was going back to the farm in 2004, 5, 6, 7, all those years when I'd go home.
Q.    You're suggesting that he wasn't working long hours when you went home.
A.    No.[29]
[29] T423.9-18.
This evidence cannot be accepted and does not accord with the evidence even of Denis. Further, he was unable to explain why he left the farm himself in 2004, save that he left to “better his knowledge”.[30] He then said the following in relation to the amount it would have been necessary to pay someone to return to the farm in 2004:
[30] T421.15.
Q.I think I'll just try summarising that one final time. I think I asked you to agree that it would have been a very hard sell to get someone to come back to the farm to work the farm as hard as a farmer for no money in dry conditions.
A.It would be hard, but you're using a $2,000 payment which is unrealistic. If you're going to pay someone to come home, you'd pay them -
Q.    What would you pay them.
A.    Depending on their skill level. But back then could have been $15 an hour.
Q.You know that Vincent wasn't paid that sort of money when he went back to the farm, don't you.
A.    I don't know. I haven't seen any financials or anything to show.[31]
[31] T423.19-33.
His evidence was clearly that his expectation was that someone with appropriate skills would be paid $15 per hour to return to the farm and that payment of $2,000 per year was unrealistic to entice someone to work there. He gave this evidence against the background of no knowledge of the payments received by Vincent when he returned to the farm in 2004 and of the fact that he himself received only about $2,000 per year when he left the farm to move into the fishing industry. In fact, Thomas’ evidence was that Vincent received a wage[32] and he later conceded that he was unaware that Vincent had never been paid a wage.[33] He also conceded that he did not know that Julie supported the family financially.[34]
[32] T426.33-34.
[33] T427.20-23.
[34] T426.37-38.
It is clear that much of Thomas’ evidence was simply uninformed. As a result, I consider that his evidence needs to be treated with caution; he clearly was prepared to give evidence of matters about which he had no knowledge as if he was fully informed. This has led to me to treat as unreliable all of his evidence unless it has been independently corroborated. Thomas’ evidence also demonstrated that his hostility toward Vincent coloured much of his evidence.
I do not consider that Michael’s evidence was particularly helpful. It was clear that he had spent very little time on the farm over the previous 20 years. He had little independent knowledge of what had been happening on the farm since he left in 1999. In fact, his evidence was that he was not aware that Vincent had returned to the farm in 2020 and had been working without wages. He further said that he had not been part of the decision making that led to Vincent returning to work on the farm in July 2020.
It was clear to me that Michael’s evidence was not based on his own knowledge as he had had little or no involvement in the management of the farm in more than 20 years.
I am satisfied that Mr Oster, Mr Harris and Mr Young were reliable witnesses who did their best to assist the Court. In particular, I consider that Mr Oster was a valuable witness, who gave evidence truthfully. He has known the Cash family since 1997, without being a close friend of any particular member. As a result, I consider that his evidence was particularly helpful as he was able to give evidence of relevant events without any particular bias.
I consider that Mr Giles did his best to assist the Court and to answer truthfully the questions that he was asked. I have found, however, that his evidence is unreliable because of an inherent bias, which I will discuss in more detail in due course.
The legal framework
The causes of action relied on by Vincent are estoppel by convention or mutual assumption, promissory estoppel, estoppel by representation and estoppel by encouragement. In his submissions, however, he essentially refined his case to one based on estoppel by encouragement.
Many learned judges, including judges of this Court, have discussed the legal principles that apply in determining whether a case based on estoppel by encouragement must succeed or fail.[35] In Carter v Brine, Blue J, after reviewing the authorities, said the following:
[35] See, for example, Nicholson J in Rodda v Ian Rodda Pty Ltd [2015] SASC 95 and Blue J in Carter v Brine [2015] SASC 204.
Proprietary estoppel by encouragement
The elements of proprietary estoppel by encouragement are:
1.a representation by the defendant to the plaintiff that the plaintiff has or will have a proprietary interest in property owned wholly or partly by the defendant (representation);
2.the plaintiff forms an assumption that he or she has or will have a proprietary interest in that property (assumption);
3.the conduct of the defendant in making the representation causes or materially contributes to the formation of that assumption by the plaintiff (reliance);
4.the plaintiff takes action in change of his or her position in reliance on that assumption (inducement);
5the plaintiff would suffer detriment if the defendant were permitted to depart from the assumption (detriment);
6.it would be unjust or unconscionable for the defendant to depart from the assumption (unconscionability).[36]
(footnotes omitted)
[36] [2015] SASC 204, [326].
Blue J then goes on to make the following points in relation to the various elements:
·The representation relied on can be express or implied, and can be implied from words or conduct. The representation can be in the form of a promise as to the future.[37]
[37] Ibid, [331] – [333].
·In the case of a promise as to the future, the applicant must have an actual belief that he or she will have a proprietary interest.[38]
[38] Ibid, [334].
·The respondent’s conduct must cause or materially contribute to the assumption made by the applicant.[39]
[39] Ibid, [335].
His Honour then went on to say:
The elements of reliance and inducement in proprietary estoppel by encouragement or acquiescence are both aspects of causation: was the defendant’s conduct a cause of the plaintiff’s belief and of the plaintiff’s action founded on that belief? They are best addressed in the manner in which causation questions generally are addressed, namely whether as a matter of common sense the defendant’s conduct is to be regarded as a cause of the plaintiff’s belief and in turn the plaintiff’s action. Ordinarily, although not exclusively, it is necessary but not necessarily sufficient that, but for the defendant’s conduct, the plaintiff would not have so believed or acted.
Understood in this way, the reasonableness of the plaintiff’s belief and action is not an independent requirement of reliance or inducement but merely a factor in assessing whether the defendant’s conduct is a cause of the plaintiff’s belief and action. Similarly, the defendant’s state of mind about the plaintiff’s belief and action is not an independent requirement of reliance or inducement but merely a factor in assessing whether the defendant’s conduct is a cause of the plaintiff’s belief and of the plaintiff’s action founded on that belief.
Both reasonableness on the part of the plaintiff and state of mind on the part of the defendant will be important factors in assessing whether the defendant’s conduct is unconscionable and the defendant should be regarded as estopped from denying the relevant beneficial interest of the defendant in the relevant property.[40]
[40] Ibid, [342] – [344].
(footnotes omitted)
·The applicant must change his or her position in reliance on the assumption that was induced by the respondent’s conduct.[41]
·The applicant must satisfy the Court that he or she will suffer detriment if respondent were permitted to depart from his promise.[42]
·In relation to unconscionability, Blue J says:
It must be unconscionable in all of the circumstances for the defendant to depart from the assumption.
Assessment of this element is dependent on the facts of the particular case, including the particular aspects of the preceding five elements, and formulations of principle are of limited assistance. In The Commonwealth v Verwayen, Deane J said:
The question whether such a departure would be unconscionable relates to the conduct of the allegedly estopped party in all the circumstances… Ultimately … the question whether departure from the assumption would be unconscionable must be resolved not by reference to some preconceived formula framed to serve as a universal yardstick but by reference to all the circumstances of the case, including the reasonableness of the conduct of the other party in acting upon the assumption and the nature and extent of the detriment which he would sustain by acting upon the assumption if departure from the assumed state of affairs were permitted.[43]
(footnotes omitted)
[41] Ibid, [347].
[42] Ibid, [349].
[43] Ibid, [351]-[352].
In Sidhu v Van Dyke,[44] the High Court considered the question of reliance. The plurality made it clear that actual reliance by the promisee is a fact that must be found by the Court; it is not to be assumed or inferred. It is the detrimental reliance of the promisee on the representation by the promisor which makes it unconscionable to allow the promisor to depart from their promise.[45] The burden of proving detrimental reliance on a promise made by the promisor always lies on the promisee.[46] On the question of reliance and unconscionability, the plurality concluded:
This category of equitable estoppel serves to vindicate the expectations of the representee against a party who seeks unconscionably to resile from an expectation he or she has created.[47]
[44] [2014] HCA 19.
[45] Ibid, [58].
[46] Ibid, [61].
[47] Ibid, [77].
In the recent case of Kramer v Stone,[48] the New South Wales Court of Appeal said this about estoppel by encouragement:
Proprietary estoppel by encouragement is one of a number of discrete equitable doctrines falling within the rubric of “equitable estoppel”. The elements common to such doctrines are encapsulated in the well-known formulation of Brennan J, as his Honour then was, in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 428-429; [1998] HCA 7 (Waltons Stores v Maher):
… [I]t is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff’s action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise. For the purposes of the second element, a defendant who has not actively induced the plaintiff to adopt an assumption or expectation will nevertheless be held to have done so if the assumption or expectation can be fulfilled only by a transfer of the defendant’s property, a diminution of his rights or an increase in his obligations and he, knowing that the plaintiff’s reliance on the assumption or expectation may cause detriment to the plaintiff if it is not fulfilled, fails to deny to the plaintiff the correctness of the assumption or expectation on which the plaintiff is conducting his affairs. [My emphasis]
While those elements are not to be applied in every case in a “mechanical fashion” (Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105 (Doueihi) at [166] (Gleeson JA, with whom Beazley P, as Her Excellency then was, and Leeming JA agreed); and see DHJPM Pty Ltd v Blackthorn Resources Ltd (2011) 83 NSWLR 728; [2011] NSWCA 348 (DHJPM) at [47] (Meagher JA, with whom Macfarlan JA agreed)), they are commonly regarded as a useful guide or check. It has been said that “if the facts of the case did not measure up to those tests, it would be necessary to think thoroughly about why not” (Austotel at 615-616 (Priestley JA), referred to approvingly in Doueihi (at [166] by Gleeson JA)).[49]
[48] [2023] NSWCA 270.
[49] Ibid, [77] – [78].
To be successful at trial, Vincent will need to establish:
1.that Denis made a representation to him that he has or will have a proprietary interest in Oakfront, being property owned or controlled wholly or partly by Denis;
2.he formed an assumption that he has or will have a proprietary interest in Oakfront;
3.Denis’ conduct in making the representation caused or materially contributed to the formation of that assumption by him;
4.he changed his position in reliance on that assumption;
5he would suffer detriment if Denis were permitted to depart from the assumption;
6.it would be unjust or unconscionable for Denis to depart from the assumption.
I will deal with the question of remedy once I have examined these elements.
In order to answer the questions, I need to make a number of findings of fact with respect to the events which occurred between Vincent’s return to the farm in early 2004, and when he was sacked in February 2016.
Specific findings of fact
I have already set out, at [31] to [37] hereof, a summary of the representations that Vincent says Denis made to him before he returned to the farm in 2004. The representations occurred on three separate occasions: by telephone in July 2003, at Red Hill on 6 September 2003 and on the morning of 7 September 2003, at Daw Park. It is necessary to examine each of these episodes in detail.
The July 2003 telephone call
In cross-examination, Mr Duggan put to Vincent that Denis did not say, during that call, that the work on the farm was getting beyond him.[50] Vincent’s evidence was that conversation occurred as he has described, with his father talking about Vincent’s brothers, Michael, Gerald and Thomas having left the farm. Mr Duggan suggested to Vincent that Thomas was still on the farm in July 2003; Vincent’s evidence was that Thomas had left by then to pursue employment in the fishing industry.[51]
[50] T47.29-38.
[51] T48.29-49.25.

Dennis’ evidence with respect to this conversation was unhelpful. He said:
Q.Because in July 2003, you had a conversation with Vincent about the shearing which was to take place in August, do you recall that.
A.    Did I?
Q.    And you asked Vincent to come back and help him with the shearing.
A.    Did I?
Q.    Well, you did, didn't you.
A.    Beg your pardon?
Q.    You did ask Vincent to come back and -
A.    No -
Q.    - help you with the shearing.
A.    - I may have. I -
Q.If Vincent said 'Dad phoned me up and asked me to come back with the shearing', you wouldn't dispute that.
A.    I beg yours?
Q.I'll try again. If Vincent said 'Dad phoned me up in July and asked me to come back and help him with the shearing', you wouldn't dispute that, would you.
A.    No, I -
Q.    And Vincent indeed did come back and help you with the shearing in August 2003.
A.    Maybe - he helped with shearing - yes.[52]
[52] T507.4-26.
This evidence is simply unhelpful. I note that Denis’ evidence about Thomas’ whereabouts at this time is also circumspect. On being asked whether Thomas was working on the farm in mid-2003, Denis answered variously:
·    I didn’t monitor when he was there and when he wasn’t.[53]
·    He may have been. I’m not sure.[54]
·    As I said previously, I did not monitor what actions were being taken.[55]
·    Like I said, I did never monitor Thomas’ moves, and he was – he was always welcome to come home.[56]
[53] T507.3.
[54] T507.29.
[55] T508.23-24.
[56] T509.14-15.
I have no doubt that Denis recognised the importance of the absence of Thomas from the farm to Vincent’s case; if Thomas remained on the farm making a valuable contribution to the workload, he would not need to offer inducements to Vincent to persuade him to return to the farm.
Mary’s evidence was that she had no knowledge of this phone call until early 2023:
Q.Sorry, I think you'd said that Vincent told you that his father had called him up one Sunday night and asked him to come home.
A.    Yes, that's what I understood. I didn't - I wasn't there at the phone call or anything.
Q.    I'm just trying to understand when Vincent said that phone call took place.
A.    Before he came home.
Q.    In 2003, do you mean -
A.    Yes.
Q.    - or in 2020.
A.    No, before he left Bone Timber.
Q.    So the original coming home, as it were, in 2003.
A.    Yes.
Q.    Was that the first time that Vincent had told you about that phone call.
A.    Yes.
Q.    Had you ever spoken to Dennis about that phone call.
A.    No.
Q.    So that was the first time you'd heard that.
A.    Yes.[57]
[57] T737.38-738.20.
Mary’s evidence does not take the matter any further.
I find that the conversation in July 2003 occurred as described by Vincent. Denis’ evidence is so unclear about whether or not such a conversation occurred that I place no store in it. I have no reason to find that the conversation did not occur as described by Vincent. As a result, I find that, in July 2003, Denis told Vincent that:
·The workload on the farm was getting beyond him;
·He was concerned about the farm’s future;
·Gerald, Michael and Thomas had all moved on from the farm;
·Someone was going to have to take over the farm, and there was an opportunity for Vincent if he wanted it.
I am satisfied that, at the time of this telephone call, it was clear to Denis that Thomas had no intention of pursuing a life on the farm at that time. I have reached this conclusion on the basis of Denis’ prevarication as to Thomas’ whereabouts from mid-2003 onwards. I have also taken into account Mr Oster’s evidence that, prior to Vincent’s return to the farm in 2004:
I recall seeing Denis’ young son Thomas on the Cash farm when I visited. Thomas was a teenager at the time. He did not participate in my discussions with Denis, but he would say hello and I would see him riding around the farm on his motorbike. Denis said to me “I don’t know what we are going to do with Tom.”[58]
[58] A14, [16].
I have taken this to mean that, to Mr Oster, Thomas did not appear to be actively involved in the work on the farm and Denis did not expect him to engage with work on Oakfront. I note that Mr Oster was not cross-examined on this evidence.
The visit to Red Hill
Vincent’s evidence is that, after he and Julie returned from Oakfront when shearing was completed, Denis telephoned him and invited him to go to Redhill with him. During that conversation, Denis asked Vincent if he was interested in coming back to the farm and Vincent replied that he was.
Vincent, Julie, Denis and Mary met at Redhill on 6 September 2003. They had lunch before going to Paul Oster’s merino stud to discuss changing their merino blood line. During lunch, they talked about Vincent’s returning to the farm, and Julie said that she was interested in moving to the farm. When they were with Mr Oster, Denis and Vincent discussed with him changing their merino blood line to produce finer wool.
Denis’s evidence was only that they “possibly” discussed farming matters at lunch at Redhill, and that he was “not sure” that he had wanted to consult Vincent about the future direction of the flock because he had been talking to him about returning to the farm.[59]
[59] T519.7-32.
Julie said that, during the meeting with Mr Oster, there was some technical discussion involving Vincent and Denis about improving the quality of the flock. She did not give evidence about what was discussed at lunch.
Mary’s evidence was that they met at the hotel for lunch and then went to Mr Oster’s farm. While Denis and Vincent were discussing matters with Mr Oster, Mary and Julie stayed with Mr Oster’s wife.
Mr Oster gave evidence about his association with Oakfront. He said that he first met Denis in about 1997, when he was working as a stud operator at Broadvue Heights Pty Ltd, which had sold rams to Denis and his brother John for a long period of time. Mr Oster was contracted by Denis to class his sheep, coordinate breeding programs and develop a wool and sheep enterprise that would be commercial.[60]
[60] A14, [5] – [8].
Mr Oster’s evidence was that when he first went to Oakfront, Denis was farming on his own. He said to Mr Oster that he needed help managing the farm. At that time, he had a number of physical problems, such as with his knees and back, which he would mention to Mr Oster.[61]
[61] T349.22-26.
Mr Oster said that, in 2003, he contacted Denis to arrange a time for him to visit Broadvue Heights to select some rams. During the conversation, Denis told Mr Oster that Vincent was coming home to take over the farm.[62] The visit occurred in late September; Denis deferred to Vincent in the choice of rams, and Vincent told Mr Oster that he wanted to come back and take on the farm.[63] When asked about this statement in cross-examination, Mr Oster replied:
A.As far as looking at these words, there was a statement there which I can clearly recall. 'I'm here to come back and take on the family farm.'[64]
[62] Ibid, [18].
[63] Ibid, [19] – [21].
[64] T351.16-19.
I am satisfied that the meeting at Redhill happened as described by Vincent. I accept that there was discussion about Vincent’s return to the farm during lunch and that, subsequently, he and Denis discussed merino blood lines with Mr Oster. I am satisfied that, prior to the meeting, Denis told Mr Oster that Vincent was coming home to take over the farm.
The Daw Park conversation
The salient content of the Daw Park conversation is set out at [36] – [37] hereof. Denis and Mary completely deny that this conversation occurred; they go so far as to deny that they were in Adelaide together at the time that Vincent and Julie say that the conversation took place. This gives rise to two questions: (a) were Denis and Mary in Adelaide together at the relevant time; and (b) if they were, did the conversation occur and what was its content.
Were Denis and Mary in Adelaide together at the relevant time?
Vincent says that, after the trip to Redhill, Denis and Mary went to Adelaide, rather than returning to Oakfront, because Mary was travelling to America a few days later to attend Michael’s wedding. They stayed at Vincent’s house in Daw Park, which he rented with his brother, Patrick. In his evidence, Vincent says that the visit to Redhill occurred on Saturday, 6 September 2003 and the conversation in Daw Park occurred on Sunday, 7 September 2003. His mother left for America the following Tuesday.
Julie also dates the Redhill visit to 6 September 2003 and the Daw Park conversation to 7 September 2003. She also says that Mary flew to America for Michael’s wedding on the following Tuesday.
Denis is adamant that he and Mary returned to Oakfront after the meeting at Redhill.[65] This is supported by Mary’s evidence, although with considerably less certainty. When asked where she and Denis went after leaving Mr Oster’s, she said:
[65] T518.32-36, T521.1-24, T522.19-24, T523.6-10, T527.5-7, T528.16-17, T533.21-534.14.
A.    We went back home.
Q.Home, I just need you to be specific, is home the farm. When you say 'home', do you mean Oakfront.
A.I can't remember going back. My mother lived at Stirling North, just this side of Port Augusta. I presume we may have stayed the night with her and then went on the next day. We wouldn't have wanted to be away from the farm very long because we were the only ones on the farm.
Q.But you don't actually remember whether or not you stayed at your mum's at Stirling North at Port Augusta. Is that right.
A.No. If ever we went to Adelaide, that's what we would - we often did that sort of thing.
Q.    On the way to Adelaide.
A.    Or home again, whichever.
Q.    But on this occasion after you left the Osters, do you say you went back to the farm.
A.    Yes.
Q.Is it possible that you went to Adelaide. In other words, that you did not go back to the farm, but that you went to Adelaide.
A.    No, we went back to the farm.[66]
[66] T749.12-34.
I have reason to doubt, however, that this evidence was based on Mary’s recollection of the event; I consider that it is more likely that it is a later reconstruction. Immediately after the exchange set out above, Mary was asked about the date on which she had flown to America for Michael’s wedding. Her evidence was that she had asked her daughter (with whom she travelled) to check the date that they left Australia. Her daughter told her that they flew out on 15 September 2003.[67] She was then asked:
Q.Would you have stayed in Adelaide between the Sunday, 7 September, which was the day after the Red Hill meeting, for a week, and then flown out from Adelaide to the United States on 15 September without going back to the farm.
A. I wouldn't have stayed that long in Adelaide.[68]
[67] T749.35-750.3.
[68] T750.4-9.
I have already referred to the unsatisfactory evidence given by Mary about how she travelled from Oakfront to Adelaide before flying to America. Given the serious reservations that I have about Mary’s evidence generally, I am unable to conclude that Mary has an independent recollection of travelling back to Oakfront after the visit to Redhill. I consider that she reached the conclusion that it must be the case that she returned to Oakfront, because she would not have stayed in Adelaide for over a week before travelling to America. Of course, this conclusion is predicated on the visit to Redhill occurring on 6 September 2003.
In his written submissions, Mr Duggan states:
Denis, Mary and Vincent all place the Redhill meeting as taking place on 6 September 2003.[69]
[69] Second Respondent’s Outline of Submissions, [4.1.3].
I do not consider, however, that this accurately reflects the evidence that was given. There is no doubt that Vincent says that the visit to Redhill occurred on 6 September 2003. Denis and Mary, however, simply adopt that date; they do not independently say that the meeting occurred on that date. This is made clear in the extracts of the transcript relied on by Mr Duggan. Mary’s evidence is limited to this:
Q.Following that shearing in August 2003, it was arranged that you would meet with Vincent and Julie at Redhill on 6 September 2003.
A. That was to look at the rams, yes.[70]
[70] T761.11-14.
She is not questioned specifically about the date of the visit; her acquiescence cannot be taken as evidence of her independent recollection of the date of the visit, just that the visit occurred and it was to look at rams.
Similarly, Denis’ evidence is as follows:
Q.Tell me, why did you arrange to have lunch with Vincent and Julie on 6 September at Redhill.
A.    I was not there.
Q.    I'm sorry, do you recall going to see Paul Oster on 6 September.
A.    Yes.[71]
[71] T531.1-6.
This evidence is problematic. First, Denis’ answer to the question first put by Mr Riggall demonstrates that, rather than listening to the question, Denis seems intent on establishing that he was not in Adelaide on Sunday 7 September. Second, it is unclear whether his evidence is that he recalled visiting Mr Oster, or that he had specific recollection of the date on which that visit occurred, or both. Third, Denis’ answer to the following question demonstrates the obstructive and argumentative approach the Denis took to his evidence generally:
Q.    And that followed, I suggest, a lunch at Redhill.
A.    Beg your pardon?
Q.    That suggested that followed lunch at Redhill.
A.    Yes.
Q.So my question is, why did you arrange to have lunch with Vincent and Julie at Redhill on 6 September.
A.    Because it was lunchtime.[72]
[72] T531.7-13.
I have already made findings as to the reliability of Denis’ evidence. He was not questioned specifically as to the date on which the visit to Redhill occurred. His evidence was generally obstructive and argumentative. In consequence, I cannot conclude that the passage of evidence relied on by Mr Duggan demonstrates Denis’ independent recollection of the date on which the visit to Redhill occurred. I consider that he has simply adopted the date on which Vincent said the visit occurred.
As to Vincent’s evidence, there is no doubt that he says that the visit to Redhill occurred on 6 September 2003. In his cross-examination of Vincent, Mr Duggan sought to have Vincent give the date on which Mary had left for America. The following exchange took place:
Q.Well, I'm going to ask that question again. When you wrote that statement when you said 'Mum stayed until Tuesday when she flew out', you meant Tuesday, the 9th, didn't you.
A.My recollection was that she had come down and stayed for two nights before flying out.[73]
[73] T824.20-25.
His evidence on this topic concluded:
Q.The last sentence of para.72 when you wrote 'Tuesday' there, you were intending to convey Tuesday, 9 September, weren't you.
A.    No, I just know that she flew out - she stayed a couple of nights and flew out.
Q.You were very clear on the dates in relation to Redhill, right, remember in cross-examination.
A.    Yes.
Q.    When I asked you about that.
A.    Yes.
Q.    And you're not moving from those dates, are you; you say it's the 6th.
A.    From my recollection it was that date.
Q.    And you said you jotted it down in a chronology, is that right.
A.    Yes, I believe so.[74]
[74] T829.32-830-9.
Mr Duggan then called for the production of the chronology. Following argument, I ruled that the chronology was subject to legal professional privilege as it was prepared by Vincent for the purpose of providing instructions to his lawyers. Given this finding, it is clear that the preparation of the chronology did not commence contemporaneously, that is, in September 2003, and most probably occurred from 2016 onwards.
I note that, in his questions to Vincent, Mr Duggan refers to Vincent being “very clear” about the dates of the Redhill visit in his cross-examination. Despite this, I have been unable to locate in the transcript any passage where Vincent is challenged about the date of the Redhill meeting and the Daw Park conversation. For example, this was put to Vincent:
Q.Looking at your statement now, now you sort of attribute various comments that were made I think at the kitchen table at Daw Park.
A.    That's correct.
Q.    On 7 September.
A.    That's correct.[75]
[75] T130.6-11.
This does no more than put to Vincent his own statement that the Daw Park conversation occurred on 7 September 2003; it does not suggest, either explicitly or by implication that he may be wrong about the date. I have been unable to locate any other passage which deals with the date of the Redhill visit.
On the basis of the evidence before the Court and taking into account my findings about the reliability of the evidence of Denis and Mary, I find that Vincent was in error as to the date of the Redhill visit. I find that the visit to Redhill occurred on the weekend before Mary left for America to attend Michael’s wedding. I am further satisfied that, after leaving Redhill, Denis and Mary travelled to Adelaide, where Denis and Mary stayed until the following day and Mary stayed until she left for America. These findings are based on the following:
·Vincent’s evidence that Mary stayed at his house for two nights before her departure to America which is consistent with Mary’s evidence where she said:
Q.When did you arrive in Adelaide prior to flying out on the 15th, that is on the Monday.
A.I don't know, I think I was here on the Saturday and the Sunday and flew out first thing Monday morning. I think I was here at the weekend. How I got here I can't recall.
Q.    So your recollection is that you were there for a weekend before you flew out.
A.    I was there the weekend before I flew out, yes.
Q.I should have asked this before, but in answer to your question of no, it was - well, I think you said it was exceptional to be away from the farm for a week. Can you just explain why that is.
A.Well, there was only Denis and I on the farm and you couldn't leave it by itself so we had to be there to see to things that were carrying on. We rarely went - we never really went and left no-one on the place. We had to do things separately.
Q.Now we are talking a week after the Oster visit now on the 13th and 14th, I think you say that your recollection is that those two days, that is the weekend before you flew out you were in Adelaide, correct.
A.I think I was here on the - well, I would have been here on the Sunday and I think I was here on the Saturday.
Q.    Where did you stay then.
A.    With Patrick and Vincent.[76]
·Mr Oster’s evidence that the visit to Redhill occurred in late September, not early September;
·Denis’ unhelpful and argumentative manner when being questioned about travelling to Adelaide after the visit to Redhill which has led me to discount his evidence except where it is corroborated by another witness (other than Mary);
·Mary’s inexplicable inability to recall how she travelled to Adelaide prior to departing for Michael’s wedding.
Did a conversation such as that alleged by Vincent occur at Daw Park on the Sunday morning, and if so, what was its content?
[76] T752.29-753.19
Given that I have rejected the evidence of both Denis and Mary that they were not at Daw Park on the day following the visit to Redhill, it is a short step from there to accept the evidence of Julie and Vincent that there was a discussion about Vincent’s return to the farm. The more important question is what was the content of that conversation.
Before I embark on an examination of the evidence dealing with the content of the Daw Park conversation, it is important to identify the understanding that each of Vincent, Denis and Mary had of the ownership structure of Oakfront in 2003.
Denis said the following about the establishment of the trust:
… My brother, John, paid off the Maryvale mortgage and left me to handle the entire remainder of Oakfront mortgage. It was he who set up the family trust. I had nothing to do with it and so I was left with a family trust that I did not understand fully.[77]
[77] T499.30-35.

The company further submits that, even if I find that Vincent held an expectation as to future ownership of the farm in 2003 or 2004, he cannot have held such an expectation for long; as a result, he cannot be entitled to any significant remedy. I have already made findings with respect to the expectations that Vincent was induced to hold, and over what period, and I will not repeat those matters.
The company says that the Court should not make a declaration that Vincent has a beneficial interest in the shares of the company, nor should it make orders requiring Denis to transfer the shares in the company to Vincent, restraining Denis from exercising his power of appointment with respect to the trust in a manner inconsistent with the promises made to Vincent, requiring Denis to take the steps necessary to appoint Vincent the appointor of the trust or appointing Vincent the trustee of the trust pursuant to section 36 of the Trustee Act 1936 (SA). It says that, should the Court do so, it would permit Vincent to commit breaches of trust.
The company says that it, as trustee of the trust, owns the farm and other property, including livestock, plant and equipment. The company operates the farm business and the fencing business. By the fourth Statement of Claim, Vincent seeks a declaration only over the farmland and not over the other assets held by the company. As a result, even if he is successful in his claim and is entitled to a declaration that the land is held on trust for him, he is not entitled to a remedy with respect to the other assets held by the company. As Vincent has not himself identified any other assets than the land that should be caught by an estoppel, the Court should refrain from imposing a trust broader than the land. Vincent has made it clear that he wishes to treat the farm and all of its assets as his own; this would clearly be in breach of the terms of the trust.
The company says that clause 26 of the trust deed prevents the trustee from amending clause 28 of the deed; clause 28 gives Denis the power to remove a trustee and appoint a new trustee. It further provides that on Denis’ death, the power of appointment vests in Mary, and on her death, in Denis’ legal personal representative. To appoint a new trustee or a new appointor, Vincent needs to invoke the provisions of s 59C of the Trustee Act 1936, which empowers the Court to vary or revoke a trust. He has not done so, and if he were to do so, he would need to satisfy the Court that the proposed variations would not result in one class of beneficiaries being unfairly advantaged over another class. The company submits that Vincent would not be able to pass this test. In any event, the office of appointor is not a proprietary interest; even if Vincent is successful in his action, he is not entitled to an order installing him as appointor of the trust.
The company submits that, even if Vincent is successful in his claim, it would be disproportionate for the Court to impose a constructive trust over the land in his favour. This is on the basis that he cannot have reasonably held any expectation of obtaining the farm from Denis after around mid-2004 at the earliest and early 2008 at the latest, he did not act to his detriment but rather chose to try out life on the farm before making a decision, and any detriment that he did suffer was outweighed by free accommodation, vehicles, utilities and insurances which were paid by the company.
Further, the imposition of a trust over the land would not allow for a clean break between Vincent and Denis and would impose hardship on Denis, Mary and Vincent’s siblings. Any resolution which required Denis and Vincent to live in close proximity to each other would be unworkable and would be likely to give rise to further disputes with further legal costs being incurred. Denis and Mary do not have any off-farm assets, other than a bank account in Mary’s name containing approximately $50,000. They have no superannuation and are entirely dependent on the aged pension.
Vincent has only undertaken to pay them an amount that he says the company can afford, in the region of $50,000 per year. This would not allow them to purchase a house or make a clean break from Vincent. The imposition of a constructive trust in favour of Vincent would impoverish Denis and Mary. This would be particularly unfair to Mary, who is not a party to this action and has not engaged in any of the conduct giving rise to a remedy. It would also be unfair to Vincent’s siblings, who would effectively lose any inheritance that they might have expected from Denis and Mary.
The company submits that Vincent has engaged in conduct which has diminished any equity he might otherwise have. He interfered with the farm operations by hiding farm equipment, he improperly removed other equipment owned by the company, and he caused his mother to sign the March 2023 letter in dubious circumstances. He should not be trusted with trust property or with the responsibility of maintaining Denis and Mary for the rest of their lives.
Given that it appears that neither the company nor Vincent has the financial resources sufficient to make a lump sum payment to Denis and Mary and provide for Vincent’s siblings, the company submits that Vincent should be entitled to no more than equitable compensation. Such a remedy is consistent with Vincent’s own position, until he met with Mr Nicholls in 2015, that he sought only financial compensation.
The company submits that any equitable compensation to be paid to Vincent should not be determined against the value of Vincent’s unpaid wages (a claim which Vincent has not made in this action). Rather, the Court should take a broad axe approach by reference to the amount that Vincent was prepared to accept to resolve his claim.
The company submits that Vincent was prepared to accept the sum of $500,000 to $550,000 in 2015; in making this submission, it relies on the evidence of Denis and Thomas about the meeting at the shed where Denis offered Vincent the sum of $500,000, Vincent’s evidence that he had done some research and reached the figure of $500,000, and Mr Nicholls’ file note that Vincent considered that he was entitled to about $500,000 but would probably be prepared to accept $350,000. The Court would then need to take into consideration the nature of the promises made, the period of reliance, the benefits that Vincent has received over the years, and Vincent’s own conduct.
Denis’ submissions
Denis submits that, if the Court determines that Vincent is entitled to a remedy, he should receive only equitable compensation and not a proprietary remedy. He argues that a remedy that removes him from his home of more than sixty years would be disproportionate and would entirely ignore his and Mary’s interests.
Denis says that, if the Court determines that Vincent is entitled to a proprietary remedy, it should be on the basis that he makes a lump sum payment to Denis. This would be consistent with the promise that Vincent says was made: that he would receive the farm on the basis that he provided for his parents in their retirement.
Denis argues that he and Mary should not be beholden to Vincent and any remedy should be on the basis that there can be a clean break. They should not be placed in a position where they would be vulnerable to harassment from him and may need to take legal action against him to enforce their entitlements.
Denis contends that Vincent’s behaviour supports his submission that any remedy should be by way of a lump sum. He submits that there is a history of Vincent’s imposing on his parents, including by sharing a bedroom with Julie before they were married, contrary to Denis’ and Mary’s strong beliefs. Further, he interfered with the farming operations by removing farm equipment, Denis and Vincent no longer speak to each other, and Vincent procured Mary’s signature on the March 2023 letter when he was aware that she was suffering from mental health issues.
Denis criticises Vincent for asserting that he and Mary could only choose their place of residence if it was within the bounds of an amount that the company could afford to pay. This leads to the inference that Vincent’s view is that his own interests should come first and Denis’ and Mary’s should be subjugated to those interests. Further, while Vincent said that the farm could afford to pay Denis and Mary $50,000 per annum, he was unable to say how the farm could afford to pay them a lump sum to purchase a residence. Indeed, Vincent’s solution to the issue of providing for Denis and Mary did not appear to involve the payment of a lump sum to them to facilitate a clean break. As a result, it must be concluded that there will be a clear conflict between Vincent’s interests on the one hand and Denis’ and Mary’s on the other.
Denis submits that the joint email from Mr Young and Mr Harris set out the only options available for Vincent to retain the farm. He says that Mr Harris appropriately acknowledged that the amount Vincent proposed for his own family’s income did not seem sufficient and, in particular, did not take into account his wish to send his children to boarding school. Further, while the long-term profits of the farm are likely to be better than in the past, they are unlikely to be as good as the last couple of years, which have been unusually good. Mr Harris’ view was that the most reliable income from the farm would be through leasing it.
Mr Young estimated that the lump sum amount that Denis and Mary would require to maintain their current lifestyle and to purchase a house was $2,288,952. This evidence was uncontested. His evidence was that Vincent and the farm would not be able to borrow the amount necessary to make a lump sum payment of this amount.
Consideration
Before I consider the principles to be applied in determining the remedy that is most appropriate, I will deal first with the submissions made by the respondents.
First, I reject the company’s submission that Denis has not retired and has no intention of retiring. Denis has been on the full aged pension for many years. There is no evidence that he has undertaken any work on the farm since at least 2020. Indeed, his own evidence is to this effect:
In the past two years, I have not taken part in work activities on the farm. I had a couple of bad years with my health. I injured my leg was diagnosed with a broken leg and damaged ACL ligament (sic) and I ended needing a knee replacement. I was in wheelchair (sic) for six months because of delays in elective surgery due to the COVID-19 pandemic. I was then diagnosed with prostate cancer, and I had radiation treatment for that in 2021 and it left me weakened in 2022 until about October 2022.[385]
[385] R8, [164].
This evidence is taken from his statement of evidence in chief. It is undated, but was filed with the Court on 15 August 2023. I infer from this statement that it is, in fact, more than two years since Denis has worked on the farm. I make this inference on the basis that he dates his treatment for prostate cancer to 2021 and his leg and knee injury predated that diagnosis. This has led to my conclusion that he has not undertaken any work on the farm since at least 2020. No evidence was given to suggest otherwise.
In addition, I have already found that, by about 2012, Vincent was undertaking the majority of the physical work on the farm. There can be no doubt that Denis is long retired. I date his retirement from the time when he commenced receiving the full aged pension. Denis’ evidence is that he has been on the full aged pension for quite some time, although he did not know exactly how long.[386] He was able to recall that he was in receipt of the full pension in 2016.[387]
[386] T502.6-9, T704.1-3.
[387] T703.35.
Second, I reject the company’s submission that Vincent is unable to establish that his detriment is sufficiently substantial to support a finding that it would be unconscionable to allow the company to depart from the promise. I have already set out my reasons on this question. I have found that Vincent gave up his employment, his trade and his course of study on the strength of the promises made by Denis. He gave up the opportunity of being paid regular wages and receiving superannuation. He gave up the chance to buy property in Adelaide. He and Julie made fundamental and dramatic changes to their lives on the basis of the promises made by Denis and suffered significant and irreparable detriment thereby.
Third, I reject the company’s submission that any promises made by Denis cannot be imputed to the company, because of Denis’ poor understanding and confusion about the relationship between the company and the trust, and their impact on his ownership of the farm. Denis understood the fundamentals of the legal position: that he controlled the farm and the trust. It was and remains in his power to transfer full control to Vincent, by transferring the share in the company to him, making him a director, and appointing him his legal personal representative in his will, so that Vincent obtains the power of appointment on his death. While I have no doubt that he would have needed to seek advice about these steps, he has always known that it is within his power to transfer full control of the company and the trust to someone else if he wanted to.
Fourth, I reject the company’s submission that Vincent has only sought a remedy with respect to the property owned by the trust and not the other assets of the farm, including its livestock, plant and equipment. In Part 1 of the Fourth Statement of Claim,[388] Vincent seeks the transfer of the sole share in the company held by Denis and in Part 4, he seeks a declaration that he has a beneficial interest in the shareholding of the company by way of a constructive trust, and an order for the transfer of that share to him. Ownership of the livestock, plant and equipment and other assets of the company would remain with the company, ownership of which would be transferred to Vincent.
[388] FDN 59.
Fifth, I reject the submission of both the company and Denis that Vincent engaged in conduct that effectively disentitles him to a proprietary remedy. I made no findings about the evidence given by Thomas about Vincent taking company property. I consider that this evidence is tainted by the findings of credibility that I have made about Thomas. I have no doubt that there was fault on both sides. As to the conduct that Vincent admitted, such as removing the drafting gates, these items were not removed from the farm and were returned immediately on their being requested.[389] The fact that Denis and Thomas chose to approach their lawyer rather than Vincent for the return of those items is a matter for them. There is no evidence that any detriment was suffered by the farm or the trust as a result of those actions.
[389] See R5.
Sixth, I reject the contention of the company and Denis that Vincent forced Mary to sign the March 2023 letter in dubious circumstances. I have already rejected Mary’s evidence that this was the first time that she had learned of one of the core planks of Vincent’s claim. I have concluded that Mary wrote the letter of her own volition based on her honest belief that parts of the defence were not true and a desire to prevent the matter proceeding to trial. I have concluded that she sought to resile from that position in her evidence as she knew that it would damage Denis’ case. I accept that Mary may have been depressed and anxious about the upcoming trial. I reject the contention that her depression or anxiety allowed Vincent to unduly influence her or force her to do something against her will, noting that there is, in fact, no medical evidence of Mary’s mental health and she sought “a little” help for it but “didn’t go on with it”.[390]
[390] T745.7.
Seventh, I have already rejected the company’s contention that Vincent indicated that he would be prepared to accept the sum of $500,000 to settle the claim.
Eighth, I reject Denis’ submission that Vincent has historically imposed upon and disrespected his parents indulging by sharing a bedroom with Julie prior to their marriage. I consider that Denis’ need to secure free labour for the farm was greater than any scruples that he had about Vincent and Julie sharing a bedroom.
The principles
In The Commonwealth v Verwayen,[391] Deane J said:
To acknowledge the fact that the relief appropriate to a case of estoppel by conduct may vary according to the circumstances is not to suggest that relief is to be framed on an unprincipled basis. Prima facie, the operation of an estoppel by conduct is to preclude departure from the assumed state of affairs. It is only where relief framed on the basis of that assumed state of affairs would be inequitably harsh, that some lesser form of relief should be awarded.[392]
[391] (1990) 170 CLR 394.
[392] Ibid, 443.
In the case of Delaforce v Simpson-Cook,[393] the New South Wales Court of Appeal made it clear that, in determining the relief to be granted in a case of proprietary estoppel, the Court is not required to do the “minimum equity”. Allsop P said:
I agree in particular with Handley AJA that the reasons of Gleeson CJ, McHugh, Gummow and Callinan JJ in Giumelli v Giumelli [1999] HCA 10; 196 CLR 101 appear to remove as a governing principle in the relief to be granted in equitable or proprietary estoppel cases the notion of enforcement or vindication only of the “minimum equity”: see Giumelli at 123-125 [40]-[48]. That, of course, does not make irrelevant matters that can assuage the detriment brought about by the resiling from the representation or encouragement by the party concerned. It does mean, however, that relief in such cases 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. Equity will look at all the relevant circumstances that touch upon the conscionability (or not) of resiling from the encouragement or representation previously made, including the nature and character of the detriment, how it can be cured, its proportionality to the terms and character of the encouragement or representation and the conformity with good conscience of keeping a party to any relevant representation or promise made, even if not contractual in character. Equity has always had a place in keeping parties to representations or promises: see for example, Burrowes v Lock (1805) 10 Ves Jr 470; 32 ER 927; Horn v Cole 51 NH 287; 12 Am Rep 111 (1868); J N Pomeroy, A Treatise on Equity Jurisprudence Vol 3 (5th ed, 1941) at 179-188 [802]-[803]; R Meagher, J Heydon and M Leeming, Meagher, Gummow and Lehane’s Equity: Doctrine and Remedies (4th ed, 2002) at 556-560 [17-065]-[17-070] and 567-568 [17-110].
Proportionality of the claimed interest or remedy to the prejudice or detriment is undeniably a relevant consideration, and sometimes of considerable importance. It should not, however, be transformed into a necessary constitutive element of a cause of action to be pleaded or proved by the party seeking relief. To do so would elevate one consideration above others, and in particular above the importance of making good an expectation by encouragement or representation: Plimmer v Mayor of Wellington (1884) 9 App Cas 699 at 713-714; Riches v Hogben [1985] 2 Qd R 292; Giumelli at 113-114 [10] and 121-122 [35]. It would tend to equate the analysis to one requiring that the party encouraged receive no more than it can prove that it suffered in detriment. This would see the equity become one of compensation for proved equivalent detriment. The equity is a broader one based on the just and conscionable satisfaction in appropriate fashion of the equity arising from the expectation created in another by encouragement or representation. As Handley AJA says, the role of proportionality is better understood, in a doctrine dealing with the legitimacy or otherwise of resiling from an encouragement or representation that has created an expectation, as assisting in an assessment whether what is claimed or contemplated to be granted is disproportionate or unjust in all the circumstances.
The importance of keeping a party to a representation or encouragement previously made is all the stronger where, as here, the encouragement or representation has been relied upon by a party to abandon a course of conduct that could possibly have led to a different outcome. This can be described in the language of loss of a chance that is not fanciful or unrealistic, or in the language of proceeding thereafter on the basis of a new or changed convention or conventional basis.[394]
[393] [2010] NSWCA 84.
[394] Ibid, [3] – [5].

The principles set out in Verwayen and Dellaforce were applied by Nicholson J in Rodda & Anor v Ian Rodda Pty Ltd & Anor,[395] where he said:
The starting point for the remedy is the fulfilment of the expectation engendered. It is not necessarily the case that a claimant should be restricted to receiving no more than it can prove that they suffered by way of detriment. It is not a case of identifying an equity in terms of compensation for proved equivalent detriment.[396]
[395] [2015] SASC 95.
[396] Ibid, [306].
It is clear that a remedy must be identified which protects Vincent from the detriment which he would suffer if Denis were allowed to resile from the promises that he made and the assumptions that he encouraged Vincent to form. I consider that, prima facie, there is no reason not to grant Vincent a proprietary remedy: he is entitled to a declaration that Denis holds his share in the company on constructive trust for Vincent and to consequential orders that would give him full control of the company and the trust.
I consider that this is a case where the promisor should be kept to the promises that he made. As I have already found, Vincent and Julie made fundamental and irrevocable changes to their lives on the basis of Denis’ representations.
I do not consider that the question of acceleration of benefit arises in this matter. As I have found, the promise was that Vincent would receive the farm on Denis’ retirement; this was accompanied by the corollary promise that Vincent would provide for Denis and Mary in their retirement. Denis retired many years ago; as a result, Vincent’s entitlement to the farm arose some time in the past and has not been accelerated by my findings in this action.
The question of proportionality is a difficult one. In E Co v Q,[397] Ward CJ in Equity considered the question of proportionality and after reviewing a number of authorities on the topic, said:
Accordingly, it follows that proportionality will be applicable in the present case only if “proprietary relief” is “out of all proportion” to the detriment (Priestley v Priestley) which, on the balance of probabilities, the plaintiffs have sustained.[398]
[397] [2018] NSWSC 442.
[398] Ibid, [1191].
On appeal,[399] the New South Wales Court of Appeal said the following about proportionality and appropriate relief:
There is no dispute that the sons are prima facie entitled to have their expectation made good: Sidhu at [85]. What is disputed is whether the primary judge erred in not departing from that presumption, having regard to what is said to be the disproportion between the value of that expectation and the detriment suffered by B and C. With respect to that dispute the parties rely on their submissions on ground 4, including as to whether the sons' case is one to which Nettle JA's observations in Donis are applicable.
For that reason two observations made in dealing with ground 4 are again relevant. First, the sons' detriment is to be considered as part of a broad inquiry as to whether good conscience requires Q to make good the sons' expectation: AFSL v Hill at [88]; Donis at [20]. Considerations other than detriment are relevant to that inquiry (Delaforce at [3]-[4]), including the nature of the expectation and the conduct of the relevant parties in inducing or relying on it. Q's (correct) submission that a court of equity “goes no further than is necessary to prevent unconscionable conduct” (citing Waltons Stores at 419) directs attention to the role of proportionality between relief and detriment in assessing what good conscience requires.
Secondly, it is clear from Sidhu at [84]-[85] that the prima facie measure of relief will “usually” be consistent with conscientious conduct, regardless of whether the party making the claim took “life-changing decisions with irreversible consequences of a profoundly personal nature”. That statement gives compendious expression to the principles governing the assessment of detriment. It is not itself a test. Only in relatively unusual cases, including those in which detriment involves only “a relatively small, readily quantifiable monetary outlay”, will some lesser relief be appropriate.[400]
[399] Q v E Co, [2020] NSWCA 220.
[400] Ibid, [167] – [169].
I do not consider that the enforcement of the promise is out of proportion to the detriment suffered by Vincent. I have already set out at some length the irremediable detriment that he has suffered. In fact, I consider that the only relief which would be proportionate to the detriment that he has suffered is a remedy that requires Denis to make good the promises that he made.
That, in itself, is not the difficult question. The difficulty arises because of the marginal profitability of the farm, which causes an obvious tension between doing justice to Vincent on the one hand, while providing for Denis and Mary, and also ensuring that his siblings receive some form of inheritance. This case is not like others to which reference has been made, such as Rodda and E Co, where the farms in question were extremely profitable and asset-rich, and where significant off-farm assets were owned. In this case, while the land has considerable value, the profit made from the farming business has been insufficient to support two families for most of the past twenty years.
I accept that, given the complete breakdown in the relationship between Vincent and Denis, a remedy which allows a clean break is desirable. I note that the evidence of Denis and Mary as to their hopes for the future are somewhat unclear. Mary appears to suggest that she wants to stay neither on the farm nor on the Eyre Peninsula, but wants to move to Adelaide.[401] Denis on the other hand, would like to continue to live at Oakfront, even if the Court finds in favour of Vincent, until he is no longer able to live independently.[402] He recognises that a time may come when he is unable to live independently and may need to move to Streaky Bay or Adelaide.[403] Ideally, a lump sum figure should be allowed to them for their future needs.
[401] R1-22, [84].
[402] R8, [175].
[403] R8, [177].
I reject as unreasonable the lump sum formulated by Mr Young. Mr Young’s figure is not based on the reality of the situation at hand, but appears to have been calculated as if any success by Vincent in this action should have no impact on Denis and Mary save that they may need to move residence. The amount recommended for the purchase of a residence ($1,502,408) in Goodwood is well above the median house price in neighbouring suburbs,[404] an extremely generous amount ($70,000) is allowed for redecorating and furnishing the house, and an amount has been allowed for five overseas trips for each of Denis and Mary. This is excessive. The amount of $2,288,952 sought by Denis on the basis of Mr Young’s report is simply unrealistic as it does not acknowledge that the farm has no ability to raise this sum.
[404] R1-12, p4.
In calculating the appropriate lump sum for Denis and Mary, the purpose of the promise made by Denis must be remembered. Denis made the promise in order to ensure that Oakfront remained in the Cash family and was not sold. As a result, any lump sum payable to them must be calculated on the basis that the farm remains viable. Further, a remedy that requires Vincent to borrow a large sum of money would amount to no remedy at all for him. He would continue to work the farm to repay a loan for the sole benefit of Denis and Mary and not for the benefit of himself and his own family.
I turn to the options referred to in the joint email from Mr Harris and Mr Young.[405] I consider that none of the options proposed takes into consideration Vincent’s position; rather, they are formulated on the basis of obtaining the best possible outcome for Denis and Mary. The vendor finance option would require Vincent to work for the rest of his life repaying a loan to benefit his parents and his siblings. The option to sell the farm in its entirety is based on the proceeds of sale being divided “as per Denis and Mary (sic) wishes to themselves and siblings”. There is no benefit to Vincent at all in this proposal. The option of selling the non‑arable land, with the net proceeds going to Denis and Mary fails to assess the viability of the farm consequent on the loss of that land. The option of Vincent leasing the farm from Denis and Mary, with Vincent having an option to purchase the farm on their death is again no remedy in favour of Vincent at all.
[405] R7.
Mr Harris’ report[406] is more realistic, in that the recommendations that Mr Harris makes are based on a calculation of what the farm can afford. However, it is difficult to formulate any payment for Denis and Mary on the basis of his report, because, having considered three different methods of calculating an amount that the farm could afford to pay to them, his conclusions range from $0 per annum to $180,000 per annum.
[406] A6.
The first method, which leads to the conclusion that there would be no ability to pay any sum to Denis and Mary, is based on a review of the historical trading position of the farm. Based on the weighted annual cash profit over ten years to 30 June 2021, Mr Harris concluded that the farm’s annual profit was insufficient to allow any amount to be paid to them on an annual basis.
The second method led to the result that there would be an ability to pay Denis and Mary the sum of $50,000 per annum. This method was based on the entirety of the farm being leased. While this solution would allow an income to be paid to both Vincent on the one hand and Denis and Mary on the other, it would prevent Vincent from being able to farm the land himself contrary to the promise made by Denis and to Vincent’s wishes.
The third method is based on a cashflow forecast, and results in an amount of $180,000 per annum being available for Denis and Mary. The cashflow forecast is significantly higher than the farm’s historical trading figures and being able to maintain this cashflow is dependent on many things outside of Vincent’s control, including weather conditions and commodity prices. It does not take into consideration the risk of a drought or other poor conditions.
None of these solutions seems satisfactory.
I consider that there are several different ways that Vincent’s equity can be satisfied, while allowing him to make provision for his parents and, in time, his siblings.
The first solution involves the declaration (as against Denis) of a constructive trust in favour of Vincent over the company’s share and a further declaration (as against the company) of a constructive trust in favour of Vincent over the land, combined with orders that would facilitate his becoming the appointor of the trust, or at least prevent the appointor acting in a way that is inconsistent with this judgment. Denis and Mary would be given the equivalent of a life interest in the homestead and an entitlement to the income derived from the Haystacks. After Denis’ and Mary’s death, the income from the Haystacks would go to Vincent’s siblings in equal shares. While this solution does not allow for a clean break, it has the benefit of allowing a viable farm to remain in the Cash family. The Greenhouse and the homestead are sufficiently distant to allow Vincent and Denis to avoid each other and orders could be structured so as to ensure that the income from the Haystacks is paid directly to Denis and Mary.
The second solution would involve the payment of equitable compensation to Vincent. Given the nature of the promise made by Denis, I see no reason why Vincent would not be awarded compensation in the sum of the full value of the land, less an amount for Denis’ and Mary’s ongoing maintenance. After Denis’ and Mary’s death, the remainder of their fund would pass to Vincent’s siblings. I would need to receive further submissions from the parties on the amount of the fund for Denis and Mary, given that I have rejected as unrealistic the figure proposed by Mr Young. The problem with this solution is that Oakfront would be sold.
Now that I have determined that there is to be a remedy granted to Vincent, and I have described the nature of the remedy, I invite the parties to make further submissions on the remedy that would be most appropriate in the circumstances. I also invite Denis to provide evidence of the date on which he commenced receiving the full aged pension; it will be from this date that the constructive trust in favour of Vincent will be imposed, as this is the date on which Vincent’s expectations should have come to fruition.
I further invite the parties to prepare draft minutes of orders to reflect the two solutions that I have identified.
In due course, I will hear the parties on the question of costs.

[2024] SASC 47

4 April 2024