Christopherson v Wright; Christopherson v Wright

[2024] NSWSC 1144

Supreme Court

New South Wales

Medium Neutral Citation:

Christopherson v Wright; Christopherson v Wright [2024] NSWSC 1144

Hearing dates:

16 – 19 July 2024

Date of orders:

9 September 2024

Decision date:

09 September 2024

Jurisdiction:

Equity

Before:

Pike J

Decision:

(1)   Direct the parties to confer and to seek to agree orders to give effect to these reasons, including as to costs.

(2)   Direct the parties to provide agreed orders, or competing orders, to my Associate by no later than 19 September 2024.

(3)   In the event that there is no agreement as to orders, direct the parties to provide to my Associate by no later than 19 September 2024, any submissions and supporting material, such submissions not to exceed 5 pages, whereupon the remaining issues will be determined on the papers.

Catchwords:

EQUITY – estoppel – equitable proprietary estoppel by encouragement – claim by deceased’s daughter-in-law – whether alleged representations by the deceased promising interest in family homestead were made after plaintiff loaned money to deceased – finding that representations were not made – even if representations had been made, they lacked the requisite degree of precision – no detriment suffered

SUCCESSION – family provision claim – claim by adult children under Succession Act 2006 (NSW) Ch 3 – where partnerships were set up in the family to farm rural properties – where family agreement had been entered into to divide assets following divorce of deceased and former wife

SUCCESSION – family provision claim – where provision for adult child in one proceedings not adequate – where adult child had considerably contributed unpaid time and labour to family partnership – where community expectations would mean a just and wise testator in the position of the deceased would have included adult child in testamentary bounty – finding that further provision should be made

SUCCESSION – family provision claim – approval of release under family agreement – plaintiff enters into family agreement with deceased and family members whereby deceased promises to transfer assets to plaintiff – deceased’s obligations under family agreement were not completely fulfilled and a second agreement was entered into which was also not completely fulfilled – no basis to set aside the release in the family agreement – whether release should be approved under s 95 of the Succession Act 2006 (NSW) – where effluxion of time since family agreement, non-compliance with family agreement, lack of enforcement against other siblings, and disparity of financial position are all factors which weigh against approval being given – approval of release declined

Legislation Cited:

Succession Act 2006 (NSW) ss 59 and 95

Cases Cited:

400 George Street (Qld) Pty Ltd v BG International Limited [2010] QCA 245

Bell Group Ltd (in liq) v Westpac Banking Corporation [2001] WASC 315

BM Sydney Building Materials Pty Ltd v AWT Building Group (Aust) Pty Ltd [2019] NSWSC 421

BP Refinery(Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266

Bradley v Irvine; Irvine v Irvine [2024] NSWSC 727

Carter v Brine [2015] SASC 204

Delaforce v Simpson-Cook (2010) 78 NSWLR 483

Dighton v Norwood [2024] NSWSC 318

Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247

Eggins v Robinson [2000] NSWCA 61

Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785

Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm)

Kelly v Kelly [2019] NSWSC 994

Kramer v Stone (2023) 112 NSWLR 564; [2023] NSWCA 270

Last v Lewis [2022] NSWSC 791

Layton v Martin [1986] 2 FLR 227

Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474

Mulcahy v Weldon [2001] NSWSC 474

Nadinic v Drinkwater (2017) 94 NSWLR 518

Q (a pseudonym) v E Co(a pseudonym) [2020] NSWCA 220

Re Chomley [2014] VSC 220

Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19

Thorner v Major [2009] 1 WLR 776; [2009] UKHL 18

Trentelman v Owners of Strata Plan No 76700 (2021) 106 NSWLR 227

Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102

Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387

Watson v Foxman (1995) 49 NSWLR 315

Texts Cited:

D O’Sullivan, S Elliott and R Zakrewski, The Law of Recission (3rd Ed, Oxford University Press)

Category:

Principal judgment

Parties:

In proceedings 2023/00057431:
Shane Christopherson (Plaintiff)
Sharon Ann Wright (Defendant)

In proceedings 2023/00094925:
Craig Anthony Christopherson (First Plaintiff)
Pamela Jane Burne (Second Plaintiff)
Sharon Ann Wright (First Defendant)
Shane Christopherson (Second Defendant)

Representation:

Counsel:
In proceedings 2023/00057431
S Hughes (Plaintiff)
J Young (Defendant)

In proceedings 2023/00094925
L Clarke (Plaintiffs)
J Young (First Defendant)
S Hughes (Second Defendant)

Solicitors:
In proceedings 2023/00057431
Toby Tancred Solicitor (Plaintiff)
Blackwell Short (Defendant)

In proceedings 2023/00094925
Maurice Buckley, C.T. Poole & Son Solicitors (Plaintiffs)
Blackwell Short (First Defendant)
Toby Tancred Solicitor (Second Defendant)

File Number(s):

2023/00057431 and 2023/00094925

Publication restriction:

Nil

JUDGMENT

Introduction

1. To assist in the understanding of these reasons, I have referred to the principal participants by their given names. I mean no disrespect or informality in so doing.

2. These two proceedings concern the estate of the late Ralph Christopherson (the Deceased/Ralph) who died on 24 March 2022.

3. Ralph and his former wife Patricia had six children – Darien, Sharon, Shane, Traci, Grant and Craig. Later in life they fostered and adopted a boy, Gregory Dean.

4. In proceedings 2023/00057431 (the Shane proceedings), Shane seeks an order that further provision be made for him out of the Deceased’s estate/notional estate.

5. In proceedings 2023/00094925 (the Craig and Pamela proceedings), inter alia:

1. Craig seeks further provision out of the Deceased’s estate, although this was apparently only done so as to raise his financial circumstances as a competing claimant on Shane’s claim;

2. Pamela Burne (Pamela), Craig’s de facto, seeks a declaration that Sharon, as the executor of the Deceased’s estate, holds the remaining one half of a property owned by the Deceased – The Vale Homestead (being Lots 21 and 22 DP 750389) (The Vale Homestead) – on constructive trust for Pamela and subject to an equitable lien or charge in favour of Pamela;

3. Craig seeks orders under s 95 of the Succession Act 2006 (NSW) (the Act) approving the release of Shane’s rights to apply for a family provision order pursuant to a deed of family arrangement; and

4. in the alternative, Craig seeks an order that the burden of any order for further provision in favour of Shane be borne by Sharon.

6. The proceedings were heard between 16 to 19 July 2024. Ms L Clarke appeared for Craig and Pamela. Mr S Hughes appeared for Shane and Mr J Young appeared for Sharon.

7. For the reasons set out below, provision should be made for Shane out of the Deceased’s estate. This should be borne equally by Sharon and Craig. Pamela’s claim should be dismissed. The parties are directed to confer to seek to agree orders, including as to costs and any remaining dispute will be determined on the papers.

The facts

8. I set out below the facts relevant to the determination of the claims. I set out firstly the common facts and then the facts particular to each of the claims.

9. As is so often the case, the relevant factual events span many years and include a number of dealings with the Deceased. The principles that guide fact finding in these circumstances are well known: see for example, The Estate of the Late Daniele Claudio Legler [2024] NSWSC 726 at [18]-[22]. I have had regard to these principles.

The common facts

10. Before dealing with the individual circumstances of each of the claimants, I set out below the background facts which were largely not in dispute.

11. The Deceased was born on 25 April 1933. By all accounts, he was born into a farming family. The Deceased farmed all his life, as did his father.

12. In 1953 the Deceased married Patricia and together they had six children and later fostered or adopted another, as set out above.

13. The family lived on a 3,500 acre family farm at Lower Lewis Ponds known as “The Vale” (The Vale). The property is located approximately 20 kilometres from Orange. It was largely used for sheep farming.

14. The Deceased purchased and sold multiple other properties over the years.

15. In approximately 1982, a partnership was set up between Craig, Shane and Grant (the Christopherson Partnership).

16. In about that year – 1982 – a property known as Marginal was purchased in the names of Grant, Craig and Shane.

17. Boyce’s Block was bought in 1989.

18. In 1993, a property known as Wanganoo was bought for $385,000. Shane says that the Deceased had promised to put it in his name but reneged at the last minute. It was bought in the name of the Deceased.

19. In 1994, Shane took a lease of a cottage at a property known as Tulgeywood, working eight hours per week on the property for rent free accommodation. In 1997/1998 the Tulgeywood property was purchased in the names of Shane, Craig and Traci.

20. In 2001, Little Theatre farm was bought in the name of the Deceased.

21. In about 2007 or 2008, the Deceased and Patricia separated. Shane also stopped working in the partnership and subsequently started driving taxis. He only worked on Tulgeywood, where he was staying at the time.

22. From then on, it would appear that Darien and Craig were principally, if not solely, carrying on the Christopherson Partnership with Grant and Shane no longer involved. Darien and Craig also formed their own partnership in around 2007/2008 (the Christopherson Neville Partnership).

23. In about 2008, the Deceased reached a property settlement with Patricia, as a result of which a property in Orange was bought by the Deceased for Patricia. The purchase price for the house was $335,000, funded by a loan of $250,000 from Triskelion Finance (Triskelion) and a loan of $85,000 from Sharon. The Deceased secured the loan to Triskelion over The Vale Homestead.

24. A further $506,000 was paid by Darien and Craig to Patricia.

25. On 21 March 2011, an agreement was entered into between the Deceased, Patricia, Craig, Grant, Shane, Darien, Sharon and Traci (Family Agreement). The parties referred to it as a Deed of Family Agreement although on its face it purports to be an agreement.

26. The terms of the Family Agreement assumed some significance in the case and so should be set out in some detail.

27. The Recitals usefully set out the background in the following terms:

A. Ralph and Patricia are married but separated. Craig, Grant, Shane, Darien, Sharon and Traci are the children of Ralph and Patricia. The parties collectively are referred to as "the Family".

B. The Family has extensive rural property holdings. A schedule of the relevant rural property holdings ("the properties") and the ownership thereof is annexed hereto marked "A".

C. Craig, Grant and Shane farmed and grazed the properties in partnership under the name and style of "The Christopherson Partnership ".

D. Craig and Darien commenced a farming and grazing partnership ("Christopherson Neville Partnership") with effect from 15 December 2008.

E. Darien and Craig have been managing the business of the Christopherson Partnership since July 2007 and Grant and Shane have had no input into the management of the partnership since that date. Subject to the terms of this Agreement, Grant, Shane and Traci will not be liable for any claims from any individual or entity, from that date.

F. Ralph has a debt of $250,000.00 payable to Triskillion [sic] Finance Pty Limited and $85,000.00 due to Sharon (together known as "the Cowra Loan"). These debts were incurred in the provision of a house for Patricia.

G. Ralph and Patricia have agreed upon the terms of a property settlement.

H. The Christopherson Neville Partnership will continue the farming and grazing business of the Christopherson Partnership.

I. Subject to the further provisions of this Agreement, Craig and Darien and the Christopherson Neville Partnership have agreed to effect payment to all the various creditors of the Christopherson partnership, to assume liability for the obligations of Ralph to make payment to Patricia in terms of the property settlement, to make payments to Ralph for his maintenance and living expenses and to make payments to various Family members.

J. The Family has agreed on the terms on which the Christopherson Neville Partnership will continue the business of the Christopherson partnership, the transfer of various property interests amongst the family and on the making of provision for Patricia and Ralph.

28. The substantive terms fall into three categories:

1. those agreed to by the Christopherson Neville Partnership, the Christopherson Partnership and Ralph;

2. those agreed to by Ralph and Patricia; and

3. those agreed to by the whole family.

29. The terms agreed to by the partnerships and Ralph may be summarised as follows:

1. the Christopherson Neville Partnership (Craig and Darien) will continue with the business formerly carried on by the Christopherson Partnership (clause 2);

2. as part of this transition, the Christopherson Neville Partnership will pay the total liabilities of the Christopherson Partnership and Ralph to the National Australia Bank and the assets of the Christopherson Partnership will be transferred to the Christopher Neville Partnership (clauses 3 and 4);

3. the Christopherson Neville Partnership also agree to effect payment of Ralph’s obligations to Patricia and also to pay certain monies to Ralph if he is to lose his Centrelink pension (clauses 5 and 6);

4. each party has received their own independent legal and financial advice with respect to the “Partnership Transition” and the Deed and understand its full effect (clause 7).

30. The agreement between Ralph and Patricia was for Ralph to pay Patricia $400,000 within 18 months of consent orders being made in the Family Court, $100,000 within 30 days, and $1,080 per month until the full amount of $400,000 was paid off (clause 8).

31. The terms agreed by the whole family included:

1. Shane transferring his interest in Marginal to Craig and his interest in Tulgeywood to Darien (clause 9);

2. Grant transferring his interest in Marginal to Craig and the Christopherson Neville Partnership paying Grant $300,000 (clause 10);

3. Traci transferring her interest in Tulgeywood to Darien and the Christopherson Neville Partnership paying Traci $50,000 (clause 11);

4. Ralph transferring Wanganoo and his Caterpillar D6H bulldozer to Shane and agreeing to mortgage his interest in The Vale as security for facilities to be afforded to the Christopherson Partnership (clause 12).

32. Clause 20 contained a release in the following terms:

The parties by their signature hereto each severally release in terms of section 95 of the Succession Act 2006 his or her right to apply for provision from the Estates of Ralph and/or Patricia and each party warrants in favour of each other party that prior to signature of this Agreement the party obtained independent legal advice in relation to this Clause. Any party may at any time apply for approval of this release by the Supreme Court of New South Wales.

33. Several weeks after the Family Agreement was entered into the Deceased apparently changed his mind in relation to transferring the bulldozer to Shane. A further agreement was then entered into (also dated 21 March 2011) (the Second Agreement) between the Deceased, Shane, Darien and Craig.

34. The Second Agreement records that the bulldozer would remain the property of the Deceased and that in lieu of the transfer of the bulldozer, Shane will have transferred to him:

1. Tractor;

2. Combine;

3. International Truck; and

4. $100,000.

35. In addition, Shane was to have the use of the bulldozer for an eight-week period during June, July and August 2011.

36. As events turned out, Shane apparently did not receive the International Truck as it was apparently owned by Grant and the Deceased did not permit Shane to use the bulldozer despite Shane’s request.

37. The Family Agreement and the Second Agreement were otherwise given effect to.

38. After the entry into of these documents, Shane, Grant and Traci had no further contact with the Deceased, save for Shane occasionally asking for use of the bulldozer.

39. The Christopherson Neville Partnership was dissolved in 2015. Craig was responsible for $900,000 of the then NAB loan, and Darien $400,000.

40. In 2015, Triskelion obtained default judgment against the Deceased in relation to the loan taken out from Triskelion to buy the house for Patricia. A bankruptcy notice was subsequently issued to the Deceased.

41. Thereafter, Pamela provided $290,000 and Craig provided $10,000 to pay out the Triskelion debt. The Deceased transferred 50% of The Vale Homestead to Pamela as tenants in common. He remained the owner of the other 50%.

42. The Deceased made a will dated 5 May 2016 (Will) to the following effect:

1. appointing Sharon as his executor;

2. leaving a $100,000 legacy to Pamela; and

3. otherwise leaving the balance of his estate to be divided equally between Craig and Sharon.

43. The Will records that the Deceased had regard to the Family Agreement in making the Will. It also includes standard provisions permitting the executor to sell any assets of the estate or appropriate them in satisfaction of any legacy.

44. Patricia died in 2019. Shane received $110,000 under his mother’s will. Sharon, Grant and Traci also received legacies. Craig and Darien did not. Shane had also previously been given $100,000 by Patricia inter vivos.

45. The Deceased died on 24 March 2022. Probate was granted to Sharon on 9 September 2022.

46. The assets of the estate at the time of probate totalled $3,762,746.35, primarily consisting of:

1. money in a NAB account ending in 2391 in an amount of $12,746.35;

2. the Caterpillar D6H bulldozer valued at $50,000;

3. various lots comprising The Vale (as set out below), owned solely by the Deceased, valued at $3,500,000; and

4. The Vale Homestead – half owned by the Deceased – his interest being valued at $200,000.

47. There was also in evidence a valuation report valuing the parcels of land as at 6 June 2023, as follows:

1. The Vale Homestead – valued at $325,000 (being half the $650,000 valuation);

2. Back blocks (Lots 32, 40, 43 DP 750389 including crown lease; Lot 49 DP 720622; Lot 1 DP 820945 – being 550.806 ha in total): valued at $800,000;

3. Gowan Road block (Lot 89 DP 655847 and Lot 1 DP 821847 – being 111.138 ha in total): valued at $820,000;

4. Vale Blocks (Lots 23, 24, 25, 27 DP 750389, plus road lots, Lot 1 DP 1106799 and Lot 1 DP 131885 – being 516.6447 ha in total): valued at $2,300,000; and

5. Vale House Block (ram paddocks) (Lots 37 and 38 DP 750418 – being 3.3588 ha in total): valued at $40,000.

48. The total combined value of these properties is $4,285,000.

49. There is currently a further $38,483.31 held on trust on behalf of the estate. Against these amounts, the estate has a liability to Sharon for probate and legal costs the amount of which was not entirely clear but is around $18,357.75, and for a loan of $85,000. The net asset position is thus approximately $4,100,000.

50. Darien brought a family provision claim against the Deceased’s estate which was settled in 2023 for $400,000 inclusive of costs. The court approved this settlement, but it is yet to be paid.

51. Having regard to the estate’s costs as estimated up to the conclusion of the hearing, the net assets of the estate to be divided between Sharon and Craig total approximately $3,400,000 or $1,700,000 each.

Shane’s claim

52. Shane relied on several affidavits and was cross examined. Shane struck me as an honest witness, doing his best to assist the Court. He made concessions where appropriate. I largely accept his evidence.

53. The facts relevant to an assessment of Shane’s claim may be summarised as follows.

54. Shane was born on 18 July 1956.

55. While at school, from about the age of 10, Shane worked on the family farm after school and on weekends. He left school at 16 years of age in 1972 and then worked full time on the farm until he was 19 without receiving a wage.

52. At his father’s behest, he then did an apprenticeship as a motor mechanic working full time in that trade.

53. He completed this in 1979 (at age 23) and returned to working full-time on the family farm, again without receiving a wage.

54. Shane admitted in cross-examination in this regard that he was not being treated any differently to his siblings or parents in that no one was receiving a wage from working the farm as these were difficult years.

55. Throughout this period, in addition to working on the family farm, Shane did shearing and other jobs off the farm and was paid accordingly.

56. Shane said that the Deceased made promises to him on a number of occasions when he was between 16 and 27 years old that “if you work hard for me this will all be yours one day”. In cross-examination, Shane agreed that the promises were not just being made to him but were also being made to his siblings. He did not understand that if he worked hard that he alone would inherit the family farm or farms to the exclusion of his siblings. To the contrary, as Shane understood it, his father wanted all of his children to have a go at farming and was treating them equally.

57. In about 1982, Shane went on a seven-month farm exchange in Canada. Prior to this time, he says he had a reasonable relationship with his father and saw a future working with him on The Vale. He then continued to work in the family farming partnership until about 2006. Again, he says that he was rarely paid wages for his work in the Christopherson Partnership during this period. He was not, however, being treated any differently from other members of the partnership at this time – again they were tough times on the land. He was also doing other work, as before, to earn some income.

58. Prior to about 1990, Shane lived with his parents at The Vale. In 1990, he moved in with his partner, Janine, living in a house owned by her parents in Orange and travelling to The Vale each day to work.

59. In 1994, Shane and Janine had a daughter, Katie. Shane’s relationship with Janine later broke down and in 1998, they separated. In any event, Shane took a caretaker role at Tulgeywood in 1994, working eight hours per week in exchange for accommodation. Tulgeywood was bought by the Christopherson Partnership in about 1998, in the names of Craig, Shane and Traci.

60. It would appear that Shane’s relationship with the Deceased’s deteriorated over the years and by 2006, Shane was no longer wanting to work in the family farming partnership. As he admitted in cross-examination – he no longer wanted to have a go of it. He ceased working in the Christopherson Partnership and commenced working as a taxi driver in Orange and doing some work on Tulgeywood where he resided.

61. He also relocated for a period and worked near Walgett.

62. It was during this period – November 2006 – that a close friend who worked in the family business passed away, followed a couple of years later by the breakdown of his parents’ marriage. In 2008, Shane suffered a nervous breakdown and was admitted to hospital.

63. It appears that by this time, some factions had formed in the family with Craig and Darien and the Deceased in one camp with the rest in the other camp. The Family Agreement was then entered into in March 2011, followed a few weeks later by the Second Agreement. I have set out the terms of these agreements earlier in these reasons. The Family Agreement was the culmination of a long period of negotiation and numerous family meetings. Shane admitted in cross-examination that:

1. he signed the Family Agreement;

2. he understood what he was signing;

3. he received and understood legal advice (provided at the time from his present solicitor) in relation to the Family Agreement including what it meant;

4. he understood that the Family Agreement fully and comprehensively effected a complete separation of Shane from the farming partnership, which is what Shane wanted;

5. he understood that that complete separation included Shane giving up any opportunity to come to court, and make a claim on the estate of his father;

6. he was not in any doubt as to the benefits that he would get out of the Family Agreement nor what anyone else would get out of it;

7. he was receiving Wanganoo debt free so as to give him an opportunity to farm on his own. Craig and Darien agreed to have the properties they were receiving mortgaged as they were continuing the family farming partnership, being risks that Shane was not prepared to take;

8. the Family Agreement was a good deal in the circumstances. When pressed as to whether, in hindsight it still was a good deal, Shane first said “it could have been a lot better. But it was all right. It was best we could do” but subsequently denied the proposition “it turned out to be a good deal as you look back on it from today.”

68. After the Family Agreement was entered into Shane lived with his mother in Orange. In 2015, he bought a house in Orange, borrowing money from ANZ and also from Sharon.

69. In 2012, he bought a taxi licence for $200,000. He has recently sold that licence for a sum of $85,000.

70. He also recently sold Wanganoo for $1.3 million.

71. His current position may be summarised as follows:

1. he is 68 years old and is single and lives alone;

2. he lives in an unencumbered home he owns in Dalton Street, Orange with an estimated value of $800,000;

3. he has approximately $480,000 in managed funds, from which he draws $1,800 per fortnight;

4. he owns four motor vehicles valued in total at about $100,000;

5. he has recently been assessed as eligible for the pension of $228.30 per fortnight;

6. he has a liability to Sharon of $192,000 in relation to the purchase of his home, which he has been paying off and in February 2024, increased the payments to $500. There was some suggestion that these weekly payments were for interest only;

7. he has some health issues, including a heart condition that necessitates him taking four medications daily and has had a stent inserted. He has lost the tip of his left ring finger in a farming accident in 2000, has a lasting effect on energy levels from a bout of Q fever in the mid-nineties, ongoing issues with skin cancers and soreness in his back, shoulders and neck. He also gave evidence of a bladder carcinoma in 2018 but there do not appear to be any recurring issues associated with this.

72. There was an issue at the hearing as to Shane’s capacity for future work. He admitted that he was still able to earn income from spraying, although he is “limited physically”. I find that Shane still has the ability to carry out some spraying work although this will inevitably decline as he gets older. He will be likely to earn in the order of $40,000 per year over the next few years (likely no more than five years), as he has done previously.

73. Shane provided evidence of his monthly expenditure in a spreadsheet attached to his affidavit of 6 July 2023. The expenditure totalled over $140,000 for the 2023 tax year (year ending 30 June 2023) and was split into what were described as business expenses ($114,470) and personal expenses ($31,680). Not all of the business expenses were in fact business expenses. The spreadsheet was obviously prepared at a time when Shane owned and was operating Wanganoo.

74. Shane’s affidavit of 26 March 2024 updated his financial position after the sale of Wanganoo. In it, he simply stated that his monthly expenditure on “personal expenses remains approximately $3,140”. Shane was cross-examined by Sharon’s counsel as to his current financial position and readily conceded that his expenses are substantially reduced after the sale of Wanganoo.

Craig’s Position

75. Craig filed a summons on 23 March 2023, about one month after Shane filed his summons, seeking an order that provision be made for him under s 59 of the Act out of the estate or notional estate of the Deceased.

76. On 8 August 2023, an amended summons was filed, which maintained Craig’s claim for further provision and in addition sought approval of the release of Shane’s claim in the Family Agreement and in the alternative, sought an order that the burden for any further provision in favour of Shane be borne by Sharon.

77. A statement of claim filed on 6 September 2023, which primarily set out Pamela’s claim, maintained this relief for Craig.

78. In opening submissions dated 12 July 2024, counsel for Craig stated that Craig does not press for further provision other than to raise his financial circumstances as a competing claimant.

79. Craig’s circumstances may be summarised as follows.

80. Craig was born on 3 November 1959 and is currently 64 years old. He is in a de facto relationship with Pamela, although they do not live together full time.

81. He grew up on The Vale. He has been a farmer all of his life. He currently farms a number of properties. He gave evidence that he took over farming the family properties when Shane left in about 2007 and also assisted the Deceased financially in a number of respects. He seems particularly proud of the RC Vale brand of super-fine wool which is sold to a number of European woollen mills.

82. Since the death of the Deceased, he has moved his livestock off The Vale which apparently has reduced his overall ability to earn income.

83. He gave affidavit evidence that he would like to reduce his level of debt so that he can manage the interest payments. He would eventually like to retire as he does hard physical work.

84. As at April 2023, he summarised his assets and liabilities as follows:

Asset	Estimated value
“Marginal”, 89 Dry Creek Road, Lower Lewis Ponds	$4,420,000
“Belmore”, Orange	$2,340,000
One half interest in farm, Cowra Road, Canowindra	$2,250,000
Plant and equipment	$200,000
Total	$9,210,000
Liability	Value
National Australia Bank mortgage over properties at “Marginal” and “Belmore”	$2,640,000
Rural Assistance Authority loan	$40,151
National Australia Bank finance	$47,209
National Australia Bank overdraft	$100,000
One half of National Australia Bank mortgage over Canowindra farm	$2,250,000
Total	$5,077,360

85. He purchased the Cowra Road, Canowindra property with his son Beau on 1 February 2023.

86. He was only briefly cross-examined at the hearing by counsel for Sharon. He appeared to give his evidence in an honest manner, making concessions where appropriate. There was no challenge to his evidence.

87. In cross-examination he accepted that:

1. he was not pressing for further provision from the Deceased’s estate because he accepts that overall, the Will provided adequate provision for his proper maintenance, education or advancement in life;

2. that would be so even if Shane were to be awarded a sum of money out of the estate, which should come out in the normal way – 50% from Craig’s share and 50% from Sharon’s;

3. his net assets, absent his legacy under the Will, total about $4 million, and close to between $5.5 million and $6 million if you include his legacy under the Will.

Sharon’s circumstances

88. Sharon put her circumstances forward as a competing claimant. They may be summarised as follows.

89. Sharon was born on 10 March 1955 and is currently 69 years of age.

90. As at 3 July 2024 her assets were as follows:

Asset	Value
Home at 129 Calala Lane, Calala NSW	$420,000 (estimate)
Superannuation	$108,809.65 (estimate)
ANZ Progress Saver account	$103,798.08
1988 Caterpillar D6H Tracked Bulldozer	$170,500.00
Loan Assets
Loan to Shane Christopherson (brother)	$192,000.00
Loan to the Deceased	$85,000.00
Loan to daughter and son in law	$100,000.00
Loan to the estate of the Deceased	$136,497.89
Loan to the estate of the Deceased (probate and administration fees)	$3,026.84
Total	$1,319,632.46

91. There was an issue in relation to the entry of the loans to the estate. It seemed to be accepted that the figure was wrong and may have been overstated. The position was complicated by the fact that no up to date affidavit was filed setting out the financial position of the estate.

92. The circumstances of the purchase of the bulldozer, and thus Sharon’s ownership of it, were in issue in the case in circumstances where it would appear that Craig as the other residuary beneficiary, did not consent to Sharon buying the bulldozer and was not aware it was being auctioned or when. Counsel for Craig and Pamela relied on the well-known rule preventing an executor as trustee purchasing estate assets without informed consent of beneficiaries or prior order of the court: see, for example, Re Chomley [2014] VSC 220 (Re Chomley).

93. It is not part of these proceedings for me to determine the ownership of the bulldozer and the legal merits of Sharon’s purchase of it. It does not substantially alter Sharon’s financial position because if the transaction was reversed, the money paid by Sharon would be reimbursed to her. It also does not substantially alter the net value of the Deceased’s estate.

94. Sharon currently receives $500 per month from Shane in repayment of her loan to him, or at least payment of interest. She rents out the Calala Lane property for $400 per week. She lives rent free with her sister Traci although she contributes to the costs of building/renovating new accommodation for Gregory Dean.

95. She has a chronic glaucoma condition and her vision is slowly deteriorating. She has a hearing impairment and uses hearing aids.

96. She intends to return to casual contract nursing when her duties as executor are complete.

Determination of Shane’s claim

97. The first issue to consider is whether the release contained in the Family Agreement should be given effect to, including pursuant to s 95 of the Act. Craig contended that the release should be approved. Sharon, by her counsel, made no submission on whether the Court should approve the release.

98. Section 95 of the Act provides:

95   Release of rights under Chapter

(cf FPA 31 (1)–(6))

(1)  A release by a person of the person’s rights to apply for a family provision order has effect only if it has been approved by the Court and to the extent that the approval has not been revoked by the Court.

(2)  Proceedings for the approval by the Court of a release of a person’s rights to apply for a family provision order may be commenced before or after the date of the death of the person whose estate may be the subject of the order.

(3)  The Court may approve of a release in relation to the whole or any part of the estate or notional estate of a person.

(4)  In determining an application for approval of a release, the Court is to take into account all the circumstances of the case, including whether -

(a)  it is or was, at the time any agreement to make the release was made, to the advantage, financially or otherwise, of the releasing party to make the release, and

(b)  it is or was, at that time, prudent for the releasing party to make the release, and

(c)  the provisions of any agreement to make the release are or were, at that time, fair and reasonable, and

(d)  the releasing party has taken independent advice in relation to the release and, if so, has given due consideration to that advice.

(5)  In this section -

release of rights to apply for a family provision order means a release of such rights, if any, as a person has to apply for a family provision order, and includes a reference to -

(a)  an instrument executed by the person that would be effective as a release of those rights if approved by the Court under this section, and

(b)  an agreement to execute such an instrument.

99. Counsel for Shane advanced a number of arguments as to why the release was either not enforceable or alternatively should not be given effect to in the exercise of the Court’s discretion under s 95 of the Act.

100. I consider each in turn.

101. First, Shane contended that Craig has no standing as merely a beneficiary of the estate of the Deceased to bring an application to seek approval of any release purportedly given by Shane. Any such application should have been brought by Sharon as executor. As set out above, Sharon, by her counsel, made no submission on whether the Court should approve the release.

102. No authority was cited by Shane in support of the contention. I do not accept it. There is nothing in the text, context and purpose of s 95, including when considered more broadly in the context of the Act as a whole, to suggest that it was intended that the point can only be taken by the executor. These matters in fact point against the contention.

103. In s 95(2), the Act provides for when proceedings for approval may be commenced. There is nothing in the statute as to who can commence those proceedings.

104. The very purpose of s 95 is that a release of family provision rights is not effective unless approved by the Court. It is not a matter for the parties to define their rights in this area but rather the Court has a primary role in determining whether to give effect to those agreed rights. It is clear that an application to approve a release of rights is not a mere formality: see, for example, Last v Lewis [2022] NSWSC 791 (Last v Lewis) at [26]. It would be a curious result, in my view, if it was necessary for the executor to raise the point for the consideration by the Court and a party to the Family Agreement (Craig) who is also properly opposing by his own proceedings where he relies on his financial position as a competing claimant, any order being made in Shane’s favour, has no standing to do so.

105. In my view, Craig has standing to raise for the consideration of the Court whether the release in the Family Agreement should be effective.

106. Second, Shane contended that clauses 12 and 14 of the Family Agreement obliged the Deceased to transfer the bulldozer to Shane within 90 days of the date of the Family Agreement and he did not do so. The Family Agreement contained an implied term, having regard to clause 17, that the release given by Shane was conditional upon the Deceased complying with his obligations pursuant to the Family Agreement and, as a consequence of the breach, the release was of no effect.

107. Again, however, no authority was cited in support of these contentions, save for a reference to BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 in relation to implied terms.

108. I do not accept this contention. It was not in dispute that the Deceased refused to deliver the bulldozer to Shane. As set out above, the parties recognised this and shortly after the Family Agreement was entered into the Second Agreement was entered into and new rights substituted for the delivery of the bulldozer. The fact that those new rights were not fully complied with – in the sense that the International Truck was not transferred as it was owned by Grant and the proposed access to the bulldozer was not provided – does not alter the position.

109. It is not necessary to give business efficacy to the terms of the Family Agreement, whether viewed alone or in the context of the Second Agreement, to include an implied term to the effect contended by Shane. The Family Agreement and Second Agreement function adequately without the implied term. It was always open to Shane to sue the Deceased for access to the bulldozer and/or for loss suffered by reason of the non-delivery of the International Truck.

110. The Deceased’s breaches do not, in my view, vitiate the release in clause 17. The conduct is, however, relevant in the context of the broader question under s 95 as to whether the release should be given effect to. I deal with this issue later.

111. There was some suggestion by counsel for Craig during the hearing that the Family Agreement was a deed and that there is some significance in this regard to the document being a deed. I do not understand what the significance is and the submission was not overly developed. Although some of the parties described the document as a deed, in substance, it is an agreement: see 400 George Street (Qld) Pty Ltd v BG International Limited [2010] QCA 245 at [7]-[9]. There is nothing on the face of the document to suggest it was intended to operate as a deed.

99. Third, it was contended that because the Second Agreement did not contain any references to the release and the release was of no contractual effect it was not revived by the Second Agreement. I do not accept this contention. The Second Agreement, on its terms, was dealing with one obligation from the Family Agreement. Its terms do not deal with the validity of the release.

100. Fourth, Shane relied on the concept of equitable fraud explained in Bell Group Ltd (in liq) v Westpac Banking Corporation [2001] WASC 315 at [102] per Owen J and the undoubted ability of equity to fashion appropriate relief for such equitable fraud, including partial recission of a release: see Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102 (Vadasz) at 115. It was submitted that this “was a case of misrepresentation in relation to a contractual release constituting equitable fraud. Based on this principle it is submitted that the Court could choose to effectively ignore the release clause.”

101. I infer that the misrepresentation relates to the ownership of the International Truck and perhaps the use of the bulldozer. There was also reference in the written submissions to unconscionable conduct.

102. Assuming for the purposes of the argument (and without deciding) that the Deceased’s conduct amounted to fraud in the requisite sense (noting that there were no pleadings and no clear identification of the allegedly fraudulent conduct), it is by no means clear that the appropriate relief under the guise of partial recission is to not enforce the release.

103. As stated in D O’Sullivan, S Elliott and R Zakrewski, The Law of Recission (3^rd Ed, Oxford University Press) at [19.28], in relation to the principle of partial recission as set out in Vadasz:

The principle only applies where absent the circumstances entitling the claimant to rescind, he would still have entered the contract though on different and perhaps more limited terms. If he would not have contracted at all then the contract must be rescinded in its entirety.

117. There was no evidence in the present case of what Shane would have done absent the misrepresentation. Clause 17 of the Family Agreement only provides for reliance on representations not any counterfactual. Given Shane’s desire to do the best deal he could at the time and get on with his life, it is likely that he would still have given the release absent the promise of the International Truck or use of the bulldozer.

118. In any event, issues of whether the parties can be restored to the position they previously occupied would also arise given that Shane has now on-sold Wanganoo, not to mention the fact that there are other parties to the agreements: see, generally Nadinic v Drinkwater (2017) 94 NSWLR 518 at [127]-[144] per Leeming JA.

119. I am not satisfied that there is any basis to set aside the release. I prefer to resolve the issue through the prism of s 95 of the Act, to which I now turn.

120. I have set out the terms of s 95 above.

121. In the context of the predecessor to s 95, Bryson J said in Mulcahy v Weldon [2001] NSWSC 474 at [10]:

[10]…the question whether the Court should, after specific enforcement, make an order under s 31 would lead to consideration of much the same matters as are raised by the plaintiff’s claim for further provision. If when all circumstances are considered, including the contractual arrangement for a release, the right outcome is that the plaintiff should have further provision, approval under s 31 would not be forthcoming. The fact that the arrangement was made, even though no approval under s 31 had been obtained, has a bearing on whether provision ought to be ordered.

122. In Kelly v Kelly [2019] NSWSC 994 at [71]-[72], Hallen J set out in considerable detail, by reference to authority, general principles relevant to the application of s 95. From his Honour’s lengthy discussion I discern the following relevant matters:

1. the discretion under s 95 is largely unfettered;

2. assuming that there is evidence of the matters in s 95(4), there is no presumptive right to an order, even if all parties agree, but there remains a general discretion, having regard to all of the circumstances, including the matters set out in s 95(4);

3. the parties should put before the Court sufficient material for the Court to consider all the circumstances of the case, including the events leading to the giving of the release, whether it was at the end of the mediation and that there has been no coercion;

4. the Court’s enquiry is not limited to the circumstances as they existed when the agreement for release was signed but includes the circumstances at the time the Court is asked to approve the release;

5. whether it is prudent at the date of giving of the release, for the releasing party to make the release, involves consideration of the advantages and disadvantages of the proposed course;

6. whether the provisions of any agreement to make the release are fair and reasonable is an evaluative decision which must be assessed over time, having regard to all the circumstances, including the value of the rights the claimant would have but for the release. If, when all the circumstances are considered, including the contractual arrangement for a release, the right outcome is that the claimant should have further provision, approval of the release would not be forthcoming;

7. the Court is not required to determine the content of any independent advice given – all that is required is whether independent advice was given and duly considered. If there were evidence of the advice given, the Court could consider the correctness of that advice as part of all the circumstances of the case.

123. Shane relied in writing on the following matters in support of the contention that the Court should not approve the release:

1. the Deceased’s failure, or further or alternatively, wilful failure to comply with his obligations pursuant to the Family Agreement and/or the Second Agreement;

2. the Deceased’s misrepresentation as to the ownership of the International Truck;

3. the content of clause 17 of the Family Agreement;

4. the time that has elapsed since the Family Agreement and the Second Agreement were entered into;

5. Shane’s circumstances at the time of the hearing, or further or alternatively, the circumstances at the same time of the other claimants in the estate of the Deceased;

6. the incongruity of Craig seeking approval but also seeking further provision for himself, despite the fact that he also executed the same release and consented to the orders making provision for Darien despite the fact that she also executed the same release;

7. the fact that the estate has not sought approval of the release;

8. the fact that Craig has not led any evidence as to the financial circumstances of the Deceased at the time of the Family Agreement and the Second Agreement; and

9. in all the circumstances, it was not prudent for Shane to give the release.

124. In oral submissions, counsel for Shane also stressed that, properly analysed, the terms of the Family Agreement were not intended to effect an inter vivos transfer of assets by parents on their children so as to avoid any family disharmony, but rather was directed at two other matters – a settlement of the entitlements of the partners of the Christopherson Partnership as well as providing for the property settlement between the Deceased and Patricia.

125. Counsel for Craig principally relied on the fact that Shane signed the Family Agreement with the benefit of independent legal advice and considered that advice. Some reliance also appeared to be placed on the fact that the Family Agreement was a deed (as set out above, this contention was not developed and in any event falls away if the Family Agreement is in fact an agreement as it seems to be).

126. For the reasons set out below, I am not satisfied that I should approve Shane’s release and I decline to do so. As will also become apparent below, I consider that provision should be made for Shane out of the Deceased’s estate.

127. Dealing firstly with s 95(4)(d) of the Act, it is not in dispute that at the time of executing the Family Agreement, Shane received legal advice and considered it. He well knew what he was signing.

128. The context in which the Family Agreement was executed is, in my view, quite important. It appears to have come as the culmination of many years of family tension which included various of the children, including Shane ceasing to be involved in the Christopherson Partnership, the breakdown of the marriage of the Deceased and Patricia and their subsequent divorce. Shane obviously wanted to have nothing to do with the family business and had not wanted anything to do with it for a number of years, although he had worked hard for many years and had contributed substantially to it. Craig and Darien were to continue farming in the Christopherson Neville Partnership together.

129. Shane obviously wanted an outcome above all else and was thus prepared to do a deal on the best terms that he was then able to so that he could move on.

130. I think there is some force in Shane’s contention that the Family Agreement was not so much about inter-generational transfer of assets but rather dissolution of the pre-existing partnership and providing a means for the Deceased to agree a property settlement with Patricia. The circumstances were quite removed from a mediated outcome in relation to a deceased estate.

131. As will appear below, there was no evidence adduced to show that at the time of the Family Agreement, equality, or even rough equality, was being achieved or sought to be achieved.

132. It is also of some significance that there was no evidence as to the terms of the Deceased’s will at the time, it being clear that the Deceased was still being left with substantial assets as evidenced by the value of his estate at the time of death.

133. As to s 95(4)(a), it was likely to Shane’s advantage to agree to the release at the time of the Family Agreement. It ensured that the Family Agreement was executed, thus enabling the separation to occur, something which Shane obviously wanted.

134. As to s 95(4)(d), it was, looked at in 2011, likely prudent for Shane to make the release. As set out above, it brought to an end many years of apparent disputation. Shane was receiving a property so that he could carry on his own farming activities, which is what he wished. With the benefit of hindsight, having regard to the current position, it was perhaps not so prudent.

135. An important aspect of the Family Agreement was, however, that Shane was to receive the bulldozer so that he could use it himself. The Deceased then changed his mind and substitute obligations were agreed, which were not completely honoured. These subsequent events somewhat reduced the prudence of the terms of the Family Agreement from Shane’s perspective.

136. The question of whether the provisions of the Family Agreement (and the Second Agreement) are or were fair and reasonable (s 95 (4)(c)) is more difficult. As set out above, this involves consideration of the position not only of Shane, but all other parties to the Family Agreement. It involves, so far as the evidence permits, consideration of the circumstances at the time of the Family Agreement and since then.

137. Importantly, there is no evidence as to the value of the respective properties being transferred under the Family Agreement or other evidence from which any conclusions can be reached as to how fair and reasonable the terms were at the time of the Family Agreement, looked at from the perspectives of all parties.

138. The position is no clearer today. All that the Court knows is that some aspects of the value of the Family Agreement and Second Agreement from Shane’s perspective – being firstly the ownership of the bulldozer outright and later some use of the bulldozer and the transfer of the International Truck – were not delivered.

139. The most recent estimate of the value of Marginal, the property Craig received is $4,420,000 as at April 2023. Shane sold Wanganoo recently for $1.3 million. Whilst Craig did not receive Marginal unencumbered, given that he took on part of the pre-existing debt and there is no evidence as to what Craig has done to the property in the 10 plus years which may have added to its value, the extent of the disparity in current value suggests unfairness, particularly in the absence of any other evidence.

140. There are a number of additional matters that weigh in favour of approval not being granted.

141. First, the effluxion of time since the Family Agreement was entered into – approximately 13 years. Allied to this there is no suggestion that at the time the Family Agreement was entered into, the Deceased was in poor health and likely to die any time soon: see Last v Lewis at [100] per Robb J. The release was not being given as part of a mediated outcome in relation to the estate of a deceased person whereby family members who are parties to existing litigation and who have been able to consider evidence and receive professional legal advice wish to achieve finality in the distribution of the estate of a deceased person: Last v Lewis at [31].

142. Second, the fact that the Deceased did not comply with the terms of the Family Agreement or, more importantly, the terms of the Second Agreement which was entered into relevantly in place of the obligation to transfer the bulldozer. Whilst I appreciate that it was open to Shane to take proceedings to seek to enforce the terms of the Second Agreement against the Deceased – or seek damages in the case of the International Truck which was not owned by the Deceased and thus could not be transferred – Shane gave evidence as to why he did not do this. The fact that Shane did not get all that was promised to him is relevant to whether the release should now be approved.

143. Third, the fact that no one sought to enforce the release in answer to the claim made by Darien, and indeed, Craig does not accept that the release should be approved so as to prevent his claim at least to the extent he contends that any further provision for Shane should come from Sharon’s share of the residue. Darien’s claim was accepted by all and has been approved by the Court.

144. Fourth, there is disparity in the financial position of Shane and, at least, Craig, in circumstances where Craig has been left a substantial further legacy under the Will. I deal with this issue below in the context of whether an order for further provision should be made in Shane’s favour.

145. For these reasons, I decline to approve the release given by Shane.

Should provision be made for Shane?

146. I turn now to consider whether an order for provision should be made in favour of Shane.

Relevant legal principles

147. The legal principles relevant to a determination of Shane’s family provision claim were not in dispute. I have summarised those principles in several recent decisions including Dighton v Norwood [2024] NSWSC 318 and Bradley v Irvine; Irvine v Irvine [2024] NSWSC 727.

148. In the context of a claim by an adult child, I adopt what Hallen J said in Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474 at [473]:

[473] I have, in many cases, referred to some general principles in relation to a claim by an adult child of the deceased. I repeat the principles that I have set out:

(a) The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.

(b) It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, “… ordinarily the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, and where that is feasible; where funds allow, to provide them with a start in life — such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation”: Taylor v Farrugia [2009] NSWSC 801 at [57] (Brereton J); McGrath v Eves [2005] NSWSC 1006 at [67]–[71] (Gzell J); Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond (2015) 14 ASTLR 442; [2015] NSWCA 42 at [109]–[110] (Beazley P, McColl and Gleeson JJA agreeing).

(c) Generally, also, “… the community does not expect a parent to look after his or her children for the rest of [the child’s life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute”: Taylor v Farrugia at [58] (Brereton J).

(d) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker at 576 (Dixon CJ and Williams J); Kleinig v Neal (No 2) at 545–546 (Holland J); Bondelmonte v Blanckensee [1989] WAR 305 at 309–310 (Malcolm CJ, Nicholson J agreeing); Hawkins v Prestage (1989) 1 WAR 37 at 44–45 (Nicholson J); Taylor v Farrugia at [58].

(e) The adult child’s lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 at [179]–[182] (Templeman J); Crossman v Riedel [2004] ACTSC 127 at [49] (Gray J). Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297 at [43] (Wheeler J, albeit in dissent in the result). In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287 at [74]–[90] (Martin CJ).

(f) The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 149 (Gibbs J, Mason and Aickin JJ agreeing); [1979] HCA 2.

Application to the facts

149. Both Sharon and Craig opposed any order in Shane’s favour.

150. The starting point is that no provision was made for Shane in the Deceased’s Will.

151. I have set out above Shane’s financial position.

152. Shane owns his own home with an estimated value of $800,000 but owes Sharon $193,000, on which it appears that interest is only being paid. He has his lump sum ($480,000) on which is he drawing $1,800 per fortnight. He has recently been assessed as eligible for the pension and it is reasonable to assume that this will increase as his lump sum reduces. Whilst he still has some earning capacity from spraying and general farm work, this will obviously decline with age, Shane now being 68 years old.

153. Ignoring the value of his home, Shane has a little over $300,000 in net assets, plus his motor vehicles.

154. His principal issue is obviously the debt to Sharon – which at the present rate will never be paid off – as well as the normal vicissitudes of life – as he gets older including likely capital works to his home and the like.

155. Whilst it appears that Shane had little contact with the Deceased in the 10 years prior to his death and ceased working in the Christopherson Partnership in about 2006/2007, prior to then he appears to have been an integral part of the Christopherson Partnership working full time in its operations for nearly 30 years. As Sharon was at pains to point out, the quality of the wool which Craig is currently able to produce, and of which he is so proud, is due to the efforts of all who worked in the Christopherson Partnership in the years prior.

149. Whilst Shane enjoyed a quite good relationship with his father for a number of years it does not appear to be in dispute that the Deceased was a difficult man, aggressive, threatening and cruel. Shane worked through this behaviour for many years until it finally became too much for him.

150. As part of the Family Agreement, Shane gave up his interest in several of the partnership properties in return for receiving Wanganoo. Given the lack of any valuation evidence it is impossible to know how fair this was. What evidence does exist at least provides a basis to question its fairness.

151. Having regard to all of these matters, particularly the considerable historical involvement of Shane in the partnership, a just and wise testator would have included Shane in his testamentary bounty. The community would expect him to do so.

152. I turn now to consider whether I should make an order for provision and, if so, in what amount.

153. In terms of competing claimants, it appears that Shane is probably in the worst financial position compared to Sharon, Craig and Darien, being the only siblings whose financial position was in evidence.

154. In relation to Sharon, she is 69 years old, not currently working but with an intention to return to contract nursing once she has fulfilled her duties as executor. She has superannuation of over $100,000 and assets of $750,000 (excluding loans) and $1.3 million if loans are included. Sharon receives half of the residuary estate which is valued in the order of $1.7 million. Even if a modest provision is made for Shane, she will be quite well off for her situation in life.

155. In relation to Craig, he has net assets of over $4 million, absent what he will receive under the Will. He is 64 years old and operates a number of successful farming operations. If the financial position of Pamela, Craig’s de facto is taken into account, it is obviously even more improved.

156. In relation to Darien, she deposed in her affidavit of 1 June 2023 to having cash at the bank in the amount of $39,166, ownership of Tulgeywood valued at $2.2 million and a home at Orange worth $596,000, a motor vehicle worth $7,000, home contents worth $20,000 and superannuation of $12,000. Her liabilities were then $320,000. She is now approximately 72 years old. It is agreed she will receive provision of $400,000.

157. Counsel for Craig contended at the hearing that the Court could have no clear view about the value of the Deceased’s estate. As I understood the argument, it principally rested on the recent activities of Sharon in applying for a subdivision of The Vale and the lack of any up to date evidence of the value of the land and of the other dealings that have occurred in relation to the estate. Sharon was cross-examined in relation to all of this, including her motivations in applying for the subdivision, whether she was intending to keep some of the land for herself, the quantum of legal expenses which Sharon had paid on behalf of the estate, and the fact that Sharon had purchased from Pickles the bulldozer which had previously been an asset of the estate.

158. Counsel for Craig relied heavily on the prohibition against self-dealing, including as set out in cases such as Re Chomley . I got the impression that Craig was obviously quite concerned that some parts of The Vale that he currently uses (or wishes to use) might be sold and an amendment application was made by Craig during the hearing and then withdrawn seeking orders that certain lots be transferred to Craig even though he is a residuary beneficiary with no entitlement to receive any particular estate assets.

159. Sharon gave evidence that she submitted the subdivision application because it was likely that estate assets would need to be sold to pay debts. This contention was not challenged and seems obvious. Whilst she had not received any detailed advice as to the likely costs of carrying out the subdivision, if approved, the outlay to date was relatively modest and she had been told that the sale price of smaller subdivided lots would likely be greater than the individual lots. Again, this evidence was not disputed.

160. This is not the occasion to make any findings in relation to Sharon’s conduct as executor. No formal allegations were made against her. It is also not necessary to make any findings in relation to the matters raised to determine Shane’s claim for provision.

161. I am comfortably satisfied on the evidence that the value of the estate is several million dollars and is well capable of supporting a relatively modest order for provision in Shane’s favour.

162. Shane sought an order for provision of $600,000. In my view this is a little excessive. A sum of $300,000 is appropriate. This will allow Shane to clear his debt to Sharon and a further capital sum of about $100,000 to be used against the vicissitudes of life.

163. I see no basis for this to come out of Sharon’s legacy as contended for by Craig. There is no basis to do so and Craig admitted as much in cross-examination.

164. I therefore propose that Shane receive an order for provision in the sum of $300,000.

Pamela’s claim

The relevant facts

172. Pamela has been in a relationship with Craig since about 2010. She admitted they are a de facto couple although she maintains her residence in Sydney, travelling to Orange every few weeks when she can, having regard to her work commitments in Sydney as a child and family health nurse.

173. The facts relevant to her claim are to the following effect.

174. In 2015, whilst she was in Sydney with Craig, he received a call from the Deceased to the effect that Triskelion had obtained orders from the Supreme Court to foreclose on The Vale Homestead block if $320,000 was not paid to them. Apparently the Deceased had previously applied for a new loan with the NAB to refinance the Triskelion loan but had been refused because of his age.

175. After some discussions the Deceased said to Pamela:

I will give you a half share in The Vale Homestead in return for you paying out Triskelion and allowing me to stay there.

176. It emerged in cross-examination that indeed there were some considerable discussions between the initial discussion and the discussion in which the Deceased told Pamela that he would give her a half share in The Vale Homestead. During these discussions it was proposed that Pamela would loan the money to the Deceased with security over The Vale Homestead. She retained a solicitor, Mr Petar Dobrich, to advise and act for her.

177. Pamela agreed that what was proposed was a commercial loan at the interest rate that Pamela was paying on her home loan or, in default, an extra 4%, together with a goodwill payment of $5,000 a year or part thereof. An additional requirement was a right of carriageway and easement for services over Lot 24 to enable secure access to The Vale Homestead, it being appreciated at the time that without this easement The Vale Homestead would be landlocked.

178. Pamela was shown an email from Mr Dobrich to the Deceased’s solicitors and Triskelion’s solicitors dated 27 May 2015 setting out the loan terms. Pamela said that she could not recall this email and thought it was sent without her instructions.

179. Pamela then took out a new loan for $290,000 secured against her house in Sydney. Craig contributed $10,000 and the Triskelion loan was paid out. Half of The Vale Homestead was transferred to Pamela as tenants in common. The easement from the nearest road was also created to ensure The Vale Homestead would be not landlocked.

180. It would appear that at the time of Pamela’s purchase of the half share of The Vale Homestead it was valued at $450,000. Pamela contributed more than half the value of the land. Craig undertook to reimburse Pamela $65,000 being the difference of the amount of the mortgage and the value of the half interest. A loan contract between Pamela and Craig was entered into for $60,000, which Craig has now repaid to Pamela. He still owes her $5,000 separately. The loan contract records the loan as an “Investment interest only loan”. The annual percentage rate payable is stated to be “the higher of either 4.53% or the variable rate payable by [Pamela] under her home loan from St George Bank secured by her home.” The loan is stated to be repayable on the earlier of the sale of The Vale Homestead or five years from 10 July 2015.

181. The “Purpose of Loan” is stated to be “to assist you to provide monies to your father, for him to use to pay out loans owing to Treskillion [sic] Finance.”

182. At a later point in time, when Pamela was apparently concerned about what would happen to the other half of The Vale Homestead after the Deceased died and asked the Deceased about this, in response to which he apparently said “you will be well looked after for having allowed me to stay in my home.”

183. On other occasions the Deceased said to Pamela “you worry too much, it will all be okay” and further, in 2017 in the context of Pamela being interested in acquiring an investment property near Orange, the Deceased apparently adamantly assured Pamela that she was inheriting the other half of The Vale Homestead saying to her “you were always getting it”. Based on this assurance, Pamela did not buy the investment property.

184. Pamela paid interest on the loan she took out and was not able to derive any benefit from her half share of The Vale Homestead. She also says she did not ask the Deceased to pay rent or contribute to expenses because of his promises.

185. Pamela was extensively cross-examined by counsel for Sharon. She gave her evidence in a direct and forthright manner. She struck me as a witness seeking to do her best to assist the Court. I am however, conscious of what Legatt J observed in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) at [22] that it is best to avoid the fallacy that just because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.

186. In considering her evidence, it must be remembered that the conversations she contends she had occurred as early as 2015 – some nine years ago – and are thus subject to the ordinary vagaries and frailty of human recollection. This frailty is magnified by the overlay of litigation.

187. Pamela admitted in cross-examination that she had been careful to record in her affidavit all of the matters that are relevant to her claim. She contended that the Deceased “promised me all the time” and reassured her right from the beginning that she would be looked after.

188. Pamela denied that she raised with the Deceased what would happen to the other half of the house, as set out above, because she had no belief at the time that she would get the other half. She said that she was always concerned, and always sought reassurance which she got “that she would be well looked after”.

189. It was not until the alleged conversation in 2017, according to Pamela, that the Deceased expressly told her she would be getting the other half, prior to then “he insinuated that I’d always be – be looked after”.

190. It emerged in cross-examination that at the time of this conversation in 2017, Pamela was experiencing some bullying at work in Sydney and she was considering moving up to Orange. The property was not to be an investment property. Pamela’s interest in the property in Orange only extended to making an inquiry of a real estate agent. She said that she was only looking, and it would have depended on her selling her home in Sydney and the value of the sale. A “propertyvalue.com.au” printout in relation to the Orange property was also shown to Pamela providing a low confidence estimate of current value of $1.2 to $1.3 million.

191. Pamela denied the proposition that she did not come away from the 2017 conversation with the Deceased with any certainty that she would be getting the other half of The Vale Homestead. She also denied that if she thought she was getting the other half she would not have just relied on the Deceased but would have ensured that was recorded in a document appropriately dealt with through a solicitor.

192. Pamela was cross-examined about what she says she would have done had the other half not been promised to her – namely, she would have asked the Deceased for rent or a contribution for expenses. It was suggested that she never would have asked her father-in-law for rent. She denied this proposition.

193. After the Deceased passed away, Pamela no doubt became aware of the Deceased’s Will leaving her a legacy of $100,000. It is not in dispute that she then consulted Mr Dobrich, the solicitor who assisted her in relation to her contribution towards the payout of the Triskelion loan and transfer of a half share of The Vale Homestead.

194. Pamela said in cross-examination that she was upset upon learning that she had received only $100,000 and then went to see Mr Dobrich “as a friend, I never paid him”. On 8 August 2022, Mr Dobrich wrote to Mr John Carpenter, the solicitor for the Deceased’s estate, in the following terms:

We act for Mrs Pam Burne, who is one half owner of property and dwelling in (Lots 21&22) 1276 Gowan Road, Lower Lewis Ponds near Orange and the Estate is the other one half owner. We understand that a quarter share in the home is to go to the deceased’s daughter Sharon and the other quarter share to the deceased’s son Craig. The parties are all well acquainted with each other and seek to maintain good relations at all times.

Our client respectfully seeks that she be consulted should the estate seek to make any changes or alterations to the property or if anyone is to occupy the home in the interim, in order to facilitate good communications.

Our client is interested in acquiring the other one quarter interest in the Estate in the home to go to Sharon. Are you able to advise in this regard.

(emphasis added)

195. On 9 August 2022, Mr Carpenter responded to Mr Dobrich in the following terms:

Dear Colleague, We are still awaiting a grant of probate in relation to this estate. Your clients interest in the lots is already known and noted and the executrix is aware of same. The implication from you letter is that Craig would be interested in receiving as part of his 50% distribution of the estate, a quarter share in these lots. He has already expressed an interest in several other lots of the total rural lands held by the estate and once probate has been granted, our client Sharon Wright as executrix, will be working with Craig to achieve this. Sharon also has indicated she is interested in receiving some of the estate land as part of her entitlement including the "Home Blocks". Part of that process will require a valuation of the lands that Craig wishes to acquire, including his one quarter contingent interest in lots 21 and 22 if this forms part of the lands to be distributed to him (or to Sharon). Our client is keen to work with Craig and your client to achieve and equitable distribution of the estate and one which is practical in terms of Craigs current farming activities on adjoining lands and how further lands a to be received from the estate can best be managed a part of his overall farming activities. We will contact you again when probate has been obtained.

(emphasis added)

196. There was further correspondence between Mr Dobrich and Mr Carpenter in September 2022. On 12 September 2022, Mr Dobrich wrote:

Dear Colleague,

We are instructed that the executrice of the Estate (that only owns half of the home) has advised our client, the other half owner, that she is now intending on moving her personal belongings into the property from Belmore. This is creating the very strong impression that apparently she is intending to try and fully occupy the property, to the exclusion of our client. This is objected to by our client, given that the Estate has not been finalised, and any such unagreed occupation will complicate matters.

We request that you raise with your client her obligations as Executrice, and the estate's obligations to our client as half owner. It would be better if you client does not move into the home.

We await your early advises [sic].

197. Mr Carpenter responded later that day to the following effect:

Dear Petar,

Our client has moved back to Orange so as to be available for administration of the estate. We are awaiting a grant of probate which was filed on the 11th July. The administration of the estate will be quite complicated involving meetings with your client, and her partner Craig to discuss the allocation of lands, valuations, and your clients proposed purchase of the estates share in the “home blocks”. It may also be necessary to commence litigation against one of the siblings who at this stage refuses to communicate regarding the discharge of a mortgage on some of the titles.

Our client has been temporarily occupying the old homestead, sleeping on the floor in a swag in front of the fire which is the only heating. She wants to install a pump so she can have running water, and a flushing toilet and move some of her stored furniture, a lounge and a bed into the home to make it more comfortable. This is not five star accommodation, indeed it is hardly fit for occupation.

She does not intend by this to establish permanent occupation and is well aware of your clients wish to purchase the estates share of the property. The cooperation of your client and Craig will be an essential part of the timely administration of the estate. Your client does not need to occupy the home. Our clients occupation can do no harm and Sharon has and will effect some improvements which will only enhance its liveability.

In the circumstances, could you kindly prevail on your client to be understanding of Sharon’s circumstances and the needs of the estate to have her located locally (and ideally on the property) so as to be able to meet with valuers, myself and Craig and your client for the efficient administration of the estate.

(emphasis added)

198. Mr Dobrich then wrote on 14 September 2022:

It is important that the Executrice not confuse her personal decisions and ambitions with her duties as Executrice. These could be misconstrued as taking advantage of Estate assets for her personal gain.

If she is choosing to relocate to Orange, there are no doubt other accommodations for her personal use available.

We are informed that the Estate is not running any business that needs intense local attention, but rather that this is a usual type estate administration, with its own internal challenges for resolution in due course.

Our client, as a half owner of the property, is anxious to be able to occupy, and is seeking that the personal effects of the Estate be moved into one half of the house to create empty space for our client to use. In the alternative our client can attend to this. Please advise as to which is preferable.

Our client is not seeking any improvements to the property be made at this stage.

Our client is not seeking to be involved in or create difficulties in the administration of the Estate, but simply seeks recognition of her entitlements in the interim.

(emphasis added)

199. Pamela denied in cross-examination that she provided any instructions to Mr Dobrich to the effect stated in the above communications from Mr Dobrich. She said in relation to the first email: “he did that himself” and “I didn’t instruct him to do anything”. She agreed that although she spoke to Mr Dobrich at the time, she told him “I don’t know what to do” and “I was meant to get the other half of the house”, and he went ahead and wrote the email, which she did not see until after it was sent.

200. I am quite troubled by this evidence from Pamela. I do not accept Pamela’s evidence that she told Mr Dobrich that she was meant to receive the other half of the house but he then went ahead, without Pamela’s knowledge, and expressed her interest in purchasing the interest which was left to Sharon. It is inherently unlikely that a solicitor would act in this way.

201. The response to the initial email also casts considerable doubt on Pamela’s evidence in this regard. Mr Carpenter wrote on 9 August 2022 that “your client’s interest in the lots is already known and noted and the executrix is aware of same”. Far from being a frolic of Mr Dobrich, Sharon was apparently already aware of Pamela’s interest. There was also further correspondence predicated on Pamela’s desire to purchase the other half.

199. This evidence has significance on at least two levels. First, it casts doubt on Pamela’s memory and potentially her honesty as a witness. Second, and perhaps more importantly, the substance of the communication – an offer to purchase Sharon’s interest – is flatly inconsistent with any belief on Sharon’s part that she was to be left the other half of The Vale Homestead.

200. There is no reason for Pamela not to assert her claimed interest at the time. The failure to do so, at a time unaffected by litigation, tells quite strongly against Pamela’s case in this regard.

Relevant legal principles

204. Pamela’s primary claim was based on a proprietary estoppel by encouragement.

205. The relevant principles were not in dispute.

206. As Meagher JA (with whom Leeming and Payne JJA agreed) observed in Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220 (Q v E Co) at [15], proprietary estoppel by encouragement “is founded in an assumption as to the future acquisition of ownership of property which has been induced by a representation or promise upon which there has been detrimental reliance by the plaintiff. Whether any, and if so what, representation has been made is to be judged ‘objectively according to the impact that whatever is said [or done] may be expected to have on a reasonable representee in the position and with the known characteristics of the actual representee.’”

207. As was recently observed by Ward P (with whom Leeming and Kirk JJA agreed) in Kramer v Stone (2023) 112 NSWLR 564; [2023] NSWCA 270 (Kramer v Stone) at [77], 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 in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 428-429.

… [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.

208. In Carter v Brine [2015] SASC 204, at [326], Blue J set out the following summary of the matters to be satisfied in a claim of proprietary estoppel by encouragement:

[326] The elements of 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);

5. the 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).

209. It must be appreciated that these elements or matters should not be applied in a mechanical fashion, but rather provide a useful check: see Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247 at [166] per Gleeson JA (Beazley P and Leeming JA agreeing).

210. In considering the nature of the representation and the level of certainty required, I proceed on the basis that the law in this regard is as recently stated by Ward P in Kramer v Stone at [84]-[87]:

1. the weight of appellate opinion is that there are less stringent certainty requirements for a representation or promise in proprietary estoppel, as distinct from the certainty requirements for estoppel by representation or promissory estoppel;

2. while an express representation or promise is not necessary, it is necessary to carefully identify the alleged representation or promise and this is to be assessed by reference to the circumstances of each case;

3. a promise may be definite in the sense that there is a clear promise to do something even though the something promised is not precisely defined;

4. uncertainty of the kind that would prevent the creation of a contract would not necessarily prevent the intervention of equity;

5. the representation or promise has been said to be sufficiently clear “if it is reasonable for the representee to have interpreted the representation in a particular way being a meaning which it is clearly capable of bearing and upon which it is reasonable for the representee to rely”.

211. In Thorner v Major [2009] 1 WLR 776; [2009] UKHL 18, Lord Walker of Gestingthorpe stated at [56] that “to establish a proprietary estoppel the relevant assurance must be clear enough. What amounts to sufficient clarity…is hugely dependent on context.” These remarks were referred to with approval by Bathurst CJ (with whom Bell P and Leeming JA agreed) in Trentelman v Owners of Strata Plan No 76700 (2021) 106 NSWLR 227 (Trentelman) at [124].

212. As regards to the elements of reliance and inducement, reliance is a fact to be found, and it is not necessary that the relevant assumption be the sole inducement operating on the mind of the party setting up the estoppel: see Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 (Sidhu v Van Dyke) at [58] and [71]. It need only be a contributing cause: Sidhu v Van Dyke at [71]-[73] and [90].

213. The test for reliance is that a plaintiff must show that he or she “would have acted differently” but for the assumption: see Sidhu v Van Dyke at [90]ff per Gageler J; Kramer v Stone at [92] per Ward P; Q v E Co at [88] per Meagher JA.

214. This is tested by asking what the plaintiff would have done if, the promise or assurance having been made, the plaintiff had been told that it would not be kept: see Q v E Co at [89] per Meagher JA.

215. The question of causation is ordinarily appropriately framed as being: “despite any other contributing factors, would the party seeking to establish the estoppel have adopted a different course (of either action or refraining from action) to that which [that party] did had the relevant assumption not been induced”: see Sidhu v Van Dyke at [93] per Gageler J.

216. The standard of proof for detrimental reliance is an objective standard: see Sidhu v Van Dyke at [69] per Gageler; Kramer v Stone at [199] per Ward P.

217. In terms of detriment – this is not presumed but must be established on the balance of probabilities. The relevant detriment is not the loss flowing from the mere non-fulfilment of a representation or promise, but rather what must be established is that the plaintiff has suffered (or will suffer) detriment if the defendant is permitted to resile from his or her representations or promises. The concept of detriment is neither narrow nor technical and is assessed at the time a party seeks to depart from the assumption or expectation: see Kramer v Stone at [94]-[96] per Ward P.

218. Detriment sufficient to support an estoppel by encouragement need not involve expenditure of money on the property the subject of the estoppel or otherwise, or be capable of financial quantification. Detriment may flow from having significantly changed the course of one’s life. The detriment must be sufficiently substantial such that it would be unconscionable for the party who gave the assurance to depart from it. There may be cases in which an estoppel is established but the disproportion between the detriment and the expectation is so great that conscience does not require the party estopped to make good the assurance: see Q v E Co at [125]-[127] per Meagher JA and the cases there cited.

219. Authority forecloses any attempt to quantify all forms of advantage and disadvantage when making a comparison between the relying party’s position in fact and their position as it might have been in the absence of reliance on the encouraged expectation: see Q v E Co at [156] per Meagher JA.

220. As Gageler J observed in Sidhu v Van Dyke at [92] “there can be no real detriment if the party asserting the estoppel would have been in the same position in any event.”

221. The element of unconscionability currently involves a holistic approach encapsulated by Allsop P in Delaforce v Simpson-Cook (2010) 78 NSWLR 483 at [3]:

[3]…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); S W Symons (ed), J N Pomeroy, A Treatise on Equity Jurisprudence 5th ed, Vol 3 (1941) San Francisco, Bancrof-Whitney at 179–188 [802]–[803]; R Meagher, J Heydon and M Leeming, Meagher, Gummow and Lehane's Equity: Doctrine and Remedies 4th ed (2002) Sydney, Butterworth LexisNexis at 556–560 [17–065]–[17–070] and 567–568 [17–110].

Determination of Pamela’s claim

222. The starting point is to determine what relevant representations were made by the Deceased to Pamela.

223. In this regard, I bear in mind the difficulties faced by a plaintiff relying on spoken words as a foundation for their claim, by reason of the well-known and oft cited observations of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at [318]-[319]. Words spoken must be proved with a degree of precision and human memory of what was said in conversations is fallible, with fallibility increasing over time, particularly where disputes or litigation intervene. The Court must feel an actual persuasion as to the cause of events: BM Sydney Building Materials Pty Ltd v AWT Building Group (Aust) Pty Ltd [2019] NSWSC 421 at [51] per Hammerschlag J.

224. Corroborating evidence – particularly from objective contemporaneous material – usually assists a plaintiff in such a case. The need for corroboration is even more acute in the present case, in circumstances where the claim is based on communications with a deceased person. In such situations, the Court will treat uncorroborated evidence of such communications with considerable caution and will regard as of particular significance any failure of the claimant to bring forward corroborative evidence which was, or ought to have been, available: see Eggins v Robinson [2000] NSWCA 61 at [26] citing Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 789 per McLelland CJ in Eq.

225. I have set out above Pamela’s affidavit evidence as to her conversations with the Deceased.

226. Prior to Pamela providing funds to pay out the Triskelion loan and receiving a half share of The Vale Homestead, the only conversation she had with the Deceased was to the effect that she would be given a half share of The Vale Homestead, as in fact occurred. On Pamela’s affidavit evidence, nothing appears to have been said – either generally or specifically – to the effect that Pamela would be further looked after or would receive the other half share of The Vale Homestead. This is perhaps unsurprising given that the transaction documented with the involvement of lawyers was for the transfer of a half share in The Vale Homestead.

227. In cross-examination, Pamela said several times that the Deceased said to her on a number occasions that “she would be looked after” or words to that effect. She also suggested that these statements, or reassurances, were given to her by the Deceased right from the very beginning. In this sense the evidence appears to be in addition to what Pamela had said in her affidavit evidence. This is notwithstanding the fact that Pamela agreed that she had been careful to set out in her affidavit all matters relevant to her claim. I am not satisfied that any such statements were made to her prior to the money being advanced. Even if such general statements were made, however, they do not assist Pamela to make out the alleged estoppel.

228. On Pamela’s affidavit evidence it seems tolerably clear that she had no understanding in relation to the other half of The Vale Homestead at the time she provided funds to pay out the Triskelion loan. Nothing was said to her that would have led her to have any belief. This is not surprising given Pamela’s approach at the time, which included the involvement of a solicitor in negotiating and documenting the transaction, including her loan with Craig. It would be expected that the documentation recorded the transaction.

229. Pamela’s lack of belief is supported by what occurred sometime later – after the half share was transferred to her – when she asked the Deceased what will happen to the other half share when he died. His response was quite general – to the effect that Pamela would “be well looked after”. Such a statement by the Deceased falls short, in my view of reasonably leading Pamela to believe that she would receive the other half share of The Vale Homestead. His statement is equally, or perhaps more consistent, with what was contained in the Will – namely a legacy of $100,000 to Pamela. Nothing at all is said about any proprietary interest. It is similar to the statements made in Layton v Martin [1986] 2 FLR 227 at 238-239 per Scott J.

230. At the time that Pamela advanced the money to enable the Triskelion loan to be paid out and she received her half share as tenant in common of The Vale Homestead, she could have had no understanding that she would receive the other half. Even if the general statements that she would be looked after were made at this early stage, they could not have reasonably led Pamela to believe that she would receive the other half.

231. Taken at their highest, such statements – whenever made – are no more than general statements by the Deceased that he would do something later in his life for Pamela as a thank you for her helping him out. The $100,000 bequest in his Will is quite consistent with the Deceased looking after Pamela.

232. Turning now to the alleged conversation between Pamela and the Deceased in 2017, I am not actually persuaded that the Deceased said anything to Pamela to the effect that he would be giving the other half of The Vale Homestead to Pamela, or if he did, that she actually relied on such a statement.

233. There is nothing to corroborate this having been said. Craig provides no corroboration. In fact, his evidence is that his father had always promised him The Vale which is much more plausible given the family association with the property and the fact that Craig was using the property as part of his successful farming business. Given the close relationship between Craig and Pamela, Craig’s failure to corroborate Pamela’s evidence is telling.

234. The Will is also inconsistent with the promise having been made. The other half had not been left to Pamela. It had been left to Sharon and Craig as residuary beneficiaries.

235. Pamela’s offer, including via Mr Dobrich, to buy Sharon’s quarter of The Vale Homestead once she knew of the terms of the Will is also quite inconsistent with the promise having been made or Pamela believing it. As set out above, I do not accept Pamela’s evidence that Mr Dobrich was on a frolic of his own with this correspondence. As set out above, Pamela’s interest in buying Sharon’s quarter interest in The Vale Homestead did not just come via Mr Dobrich, as Mr Carpenter replied that Pamela’s interest in purchasing was already known to the estate. There was then subsequent correspondence predicated on Pamela’s interest in purchasing Sharon’s interest in The Vale Homestead. The offer to buy cannot be reconciled with an expectation she was to receive the other half.

236. Even if, contrary to the above, something was said to Pamela after the original purchase that led her to believe that she would be receiving the other half, I am not satisfied that Pamela acted in reliance on such a belief or would suffer any detriment if such a representation was departed from.

237. The potential purchase of another property in Orange is speculative in the extreme. Pamela only made an inquiry of an agent. Whether she would have been successful in buying the property is far from clear. On her own evidence, it also would have depended on whether she could have sold her Sydney property and how much she got for it. None of these matters were explored in evidence. There is nothing to suggest this was a real opportunity lost.

238. I also do not accept that Pamela would ever have sought to occupy The Vale Homestead herself or charge the Deceased rent or seek a contribution to expenses from him.

239. Prior to 2017 she never sought to do such things. This was at a time when she could have had no expectation she would be getting the other half.

240. The transaction never really was, in my view, a truly commercial one. The context was always that Pamela was helping out her de facto’s father in circumstances where her de facto (Craig) did not have the money to bail the Deceased out and unless someone did, there was a significant risk that the property would be sold by Triskelion, thus resulting in the family losing an asset that had been in the family for generations.

241. The loan agreement between Craig and Pamela for the difference between the money Pamela advanced and the value of the half share is consistent with this.

242. The purpose of the loan makes it clear that Craig needed the money to help his father out and Pamela was loaning the money to him to do so.

243. I have not lost sight of the fact that the transaction was originally to be a loan at commercial rates with security and that an easement to provide access to The Vale Homestead was created. These matters do not cause me to conclude that Pamela would ever have sought to act in her own personal interest (and perhaps contrary to Craig’s) in charging the Deceased rent etc.

244. Accordingly, Pamela’s claim fails at many levels. It should be dismissed with costs.

Costs

245. Given the number of issues at play, and the fact that Pamela had her own discrete claim, it is appropriate that I give the parties an opportunity to be heard on costs.

246. My preliminary views on costs are:

1. Pamela’s claim should be dismissed with costs;

2. Craig’s claim should be dismissed with costs;

3. Shane’s costs should be paid out of the estate on the ordinary basis; and

4. Sharon’s costs should be paid out of the estate on the indemnity basis.

Orders

247. The orders of the Court are:

1. Direct the parties to confer and to seek to agree orders to give effect to these reasons, including as to costs.

1. Direct the parties to provide agreed orders, or competing orders, to my Associate by no later than 19 September 2024.

2. In the event that there is no agreement as to orders, direct the parties to provide to my Associate by no later than 19 September 2024, any submissions and supporting material, such submissions not to exceed 5 pages, whereupon the remaining issues will be determined on the papers.

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Decision last updated: 09 September 2024