Currie v Currie [No 2] - [2017] WASC 312

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: CURRIE -v- CURRIE [No 2] [2017] WASC 312

CORAM: LE MIERE J

HEARD: 12-16 & 19-23 JUNE & 18 & 21 JULY 2017

DELIVERED : 9 NOVEMBER 2017

FILE NO/S: CIV 1237 of 2013

BETWEEN: BRUCE MICHAEL CURRIE
Plaintiff
AND
GRAEME JOHN JAMES CURRIE
First Defendant
ANDREW JOHN CURRIE
Second Defendant

FILE NO/S :CIV 1848 of 2015

BETWEEN :GRAEME JOHN JAMES CURRIE IN HIS PERSONAL CAPACITY AND AS TRUSTEE FOR THE GLENAYR TRUST
Plaintiff
AND
BRUCE MICHAEL CURRIE IN HIS PERSONAL CAPACITY AND AS TRUSTEE FOR THE GLENAYR TRUST NO 2
Defendant

Catchwords:

Equity and trusts - Estoppel - Proprietary estoppel - Promise to convey land - Farming family - Expectation of inheritance - Encouragement - Reliance - Where first defendant resiling from expectation - Detrimental reliance - Where resiling is unconscionable - Relief - Constructive trust

Equity and trusts - Estoppel - Proprietary estoppel - Certainty of assumption - Contractual certainty not required

Practice and procedure - Application to amend defence - After defendants closed their case - Where there is extensive delay - No adequate reason for delay - Prejudice to plaintiff if amendments allowed - Additional costs to litigants and to other litigants awaiting trial dates

Legislation:

Business Names Act 1962 (WA)
Family Provision Act 1972 (WA)

Result:

CIV 1237 of 2013
1. Defendants' application to amend defence refused
2. First defendant estopped from denying he holds the remaining Glenayr Farms properties on trust for the plaintiff. First defendant to transfer remaining Glenayr Farms properties to the plaintiff on condition that plaintiff pays $100,000 to the first defendant and causes any guarantee by the first defendant over the properties to be discharged
3. Counterclaim dismissed
CIV 1848 of 2015
1. Claim dismissed

Category: B

Representation:

CIV 1237 of 2013

Counsel:

Plaintiff:     Mr M D Cuerden SC & Mr J M Burke
First Defendant              :     Mr N D C Dillon
Second Defendant         :     Mr N D C Dillon

Solicitors:

Plaintiff:     MDS Legal
First Defendant              :     AustAsia Legal Pty Ltd
Second Defendant         :     AustAsia Legal Pty Ltd

CIV 1848 of 2015

Counsel:

Plaintiff: Mr N D C Dillon
Defendant: Mr M D Cuerden SC & Mr J M Burke

Solicitors:

Plaintiff: AustAsia Legal Pty Ltd
Defendant: MDS Legal

Case(s) referred to in judgment(s):

Aon Risk Services Australia Ltd v Australia National University (2009) 239 CLR 175
Crabb v Arun District Council [1976] Ch 179
Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 90 ALJR 770
Currie v Currie [2013] WASC 428
Delaforce v Simpson‑Cook (2010) 78 NSWLR 483
Dillwyn v Llewelyn (1862) 145 ER 1285
Donis v Donis (2007) 19 VR 577
Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247
Flinn v Flinn [1999] 3 VR 712
Gillett v Holt [2001] Ch 210
Giumelli v Giumelli (1999) 196 CLR 101
McBride v Sandland (1918) 25 CLR 69
Pascoe v Turner [1979] 1 WLR 431
Ramsden v Dyson (1866) LR 1 HL 129
Riches v Hogben (1985) 2 Qd R 292
Rodda v Ian Rodda Pty Ltd (2015) SASC 95
S & E Promotions Pty Ltd v Tobin Brothers Pty Ltd (1994) 122 ALR 637
Sargent v ASL Developments Ltd (1974) 131 CLR 634
Sidhu v Van Dyke (2014) 251 CLR 505
Sullivan v Sullivan [2006] NSWCA 312
Thorner v Major [2009] 1 WLR 776
Verwayen v The Commonwealth (1990) 170 CLR 394
Walton v Walton (Unreported, Court of Appeal of England and Wales, 14 April 1994)
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
LE MIERE J:

Summary

The first plaintiff, Mr Graeme Currie, farmed in partnership with his wife, Mrs Erica Currie, at Bruce Rock under the name G&E Currie & Sons. Mr and Mrs Currie have four children: Joanne, Peter, Andrew, the second defendant, and Bruce, the plaintiff. Each of the children worked on the farm from time to time. For ease of reference I will refer to the members of the Currie family by their given names, as each of them who gave evidence did, without meaning any familiarity or disrespect.
The Currie farming property (the Currie farm) comprised a number of smaller contiguous properties the subject of separate certificates of title. Those smaller properties were known by reference to the names of previous owners. The registered proprietor of the separate properties was either Graeme, Graeme as trustee of the Glenayr Trust or Coodarin Grazing Co Pty Ltd (Coodarin Grazing Co), the directors of which are Graeme and Erica.
Bruce commenced proceedings (CIV 1237 of 2013) against Graeme claiming that Graeme is obliged to assign or transfer ownership to Bruce of a part of the Currie farm comprised of properties referred to as Glenayr Farms on the principles of proprietary estoppel. Graeme commenced proceedings (CIV 1848 of 2015) claiming that Bruce is indebted to him in the sum of $1,198,700 as a debt or pursuant to a right of subrogation. The sum was paid from the proceeds of the sale of part of the Glenayr Farms properties to pay back part of a debt Bruce owed to Rabobank Australia Limited (Rabobank) which was guaranteed by Graeme. The actions were tried together.
For the reasons which follow I find that Bruce assumed that Graeme would transfer the Glenayr Farms properties to him by will or at some earlier time, this assumption was induced or encouraged by Graeme, Bruce has acted to his detriment in reliance upon the assumption and it would now be against the conscience for Graeme to be permitted to depart from the assumption. There will be a declaration to the effect that Graeme holds the remaining Glenayr Farms properties, that is the Glenayr Farms properties that have not been sold, on trust for Bruce and an order that Graeme transfer to Bruce the legal title to those properties on condition that Bruce pays $100,000 to Graeme and causes any guarantee by Graeme over the Glenayr Farms properties to be discharged. Graeme's cross-claim will be dismissed. Graeme's action to recover the sum of $1,198,700 will be dismissed.

Overview

In about 1997 Graeme and Erica moved from the homestead on the Currie farm to a property in Bruce Rock town (the Bruce Rock house). Graeme brought a property in Cunderdin for Peter to farm and for him and his wife to live on. Joanne had married and lived with her husband on a farm in the Bruce Rock region. Andrew and his wife, Brigitte, moved into the Currie homestead. Bruce moved into a house on the property known as Browns, which was part of the Currie farm.
In late 2002 or early 2003 Graeme, Bruce and Andrew discussed Bruce and Andrew farming on their own and the farming lands and machinery being split between them. Andrew and Bruce were working the Currie farm with the assistance of Graeme. Graeme gave to Bruce a document entitled Currie Group Land Holdings. The document listed the Currie farm land holdings and divided them between Bruce (the Glenayr No 2 Trust) and Andrew (the Ayrtoun Trust). The Ayrtoun Trust and the Glenayr Trust No 2 were each established on 8 April 2003. Andrew is the trustee of the Ayrtoun Trust and Bruce is the trustee of the Glenayr Trust No 2.
On about 20 February 2003 Graeme presented to Bruce and Andrew a document dated 19 February 2003 entitled The Currie Family and discussed it with them. The document said that the land has been divided by Graeme between Bruce and Andrew. The division of the land was set out in a schedule. The document also said the following things: machinery was to be divided equally between Bruce and Andrew; working capital will be arranged by Graeme with the bank and Graeme and Erica would be responsible for the debt but Andrew and Bruce are equally responsible for repayments of the bank loans and overdrafts and any hire purchase or lease repayments; Graeme and Erica require $120,000 per annum tax free payable monthly at $10,000 per month in advance. Andrew and Bruce subsequently agreed to split the farming machinery between them.
Bruce says that in about 2004 he had a conversation with Graeme at Browns, which is one of the properties allocated to the Glenayr Trust No 2 by the Currie Family document of 19 February 2003. Graeme said that that was where Bruce would be living and that was where his future was. On 1 February 2005 Bruce registered the name Glenayr Farms under the Business Names Act 1962 (WA).
In about April and May 2005 Bruce and Andrew took steps towards assuming half of Graeme's farm related debt owed to Rabobank. Bruce established a loan facility of $1.65 million with Rabobank for that purpose. On 1 July 2005 Bruce repaid half of Graeme's debt to Rabobank by drawing down on his Rabobank loan facility in the sum of approximately $1.55 million. Andrew repaid the other half. Bruce took on half of Graeme's debt of $85,599 in respect of various items of machinery. Andrew assumed the other half.
In August 2005 Bruce entered into contracts to purchase land known as Lockes for $1.25 million and increased his Rabobank facility to $3 million for that purpose. Lockes adjoined the existing Glenayr Farms land. As well as providing additional land, Lockes provided infrastructure to facilitate farming the Glenayr Farms properties. In about October 2005 Graeme told Andrew and Bruce that he wanted each of them to pay himself and Erica monthly payments of $5,500. Bruce commenced making those payments.
After the 2005 harvest, Andrew and Bruce started farming separately under the business names Ayrtoun Farms and Glenayr Farms respectively. Each of them assisted the other from time to time by carrying out work or by the use of pieces of machinery.
On 29 March 2006 Bruce and his wife Lara met with Graeme, Erica and Andrew to discuss matters connected with the division of the land and the farming operations. Lara took handwritten notes of the meeting and later typed up a version of her notes entitled Currie Family Meeting 29 March 2006. The notes record, amongst other things, that Lara asked what was the plan for the changeover of land from Graeme's name to Andrew's and Bruce's name and Graeme said it will be handed over when he dies and the reason for this is to avoid having to pay stamp duty and the cost of changing over the mortgages into the boys' names.
Between 2006 and 2010 there were conversations between Graeme and Bruce about Graeme transferring Glenayr Farms properties into Bruce's name. Bruce says that Graeme told Bruce that the Glenayr Farms properties were Bruce's land to do with as he pleased.
Bruce's farming operations were badly affected by drought and frost between 2005 and 2010. In 2011 Bruce was in difficult financial circumstances. He wished to sell Glenayr Farms. Bruce and Graeme signed a selling agency agreement with an agent to sell the properties comprising Glenayr Farms including Lockes. In March 2011 purchasers Geoffrey and Phillip Negri (the Negris) offered to purchase Lockes and other parts of Glenayr Farms. Graeme did not initially sign the transfers. Graeme arranged for Bruce, Andrew and himself to meet a lawyer, Mr Peter Michael, to mediate and discuss succession. The meeting took place on 9 March 2011. Mr Michael recorded an in principle agreement. Graeme denies that an agreement was made. Subsequently Graeme and Bruce signed contracts of sale for Lockes and part of the Glenayr Farms land and settlement of that sale took place. The net proceeds from the sale of the Glenayr Farms properties Ballyhoola, Browns and Warrens of $1,198,700 were paid to Rabobank to reduce Bruce's debt to Rabobank.
By mid‑2011 the relationship between Graeme and Bruce had broken down. In July 2011 Graeme required Bruce to sign a lease in respect of the Glenayr Farms properties which had not sold to the Negris. Bruce did not sign the lease. In December 2011 Graeme gave Bruce notice to vacate the Glenayr Farms properties by 31 January 2012. Bruce signed the lease under protest. On 21 December 2011 Graeme required Bruce to enter into a new lease of the Glenayr Farms properties for 2012. In January 2012 Bruce lodged a caveat over the Glenayr Farms properties. On 19 July 2012 Graeme's solicitors wrote to Bruce's solicitors asserting that Bruce has no entitlement to Glenayr Farms land even on Graeme's death and demanding repayment of the sum of $1,198,700 in respect of the proceeds from the sale of the Glenayr Farms properties that were sold to the Negris and applied to pay off part of Bruce's debt to Rabobank.

Bruce commences CIV 1237 of 2013

On 13 February 2013 Bruce commenced proceeding CIV 1237 of 2013 against Graeme as first defendant and Andrew as second defendant. I will sometimes refer to Graeme as the defendant because Andrew played no active part in the trial except as a witness. Bruce pleaded that the conduct of the parties, including representations made by Graeme, resulted in a contract to the following effect: Graeme was to transfer the Glenayr Farms properties to Bruce as trustee of the Glenayr No 2 Trust. While Graeme would maintain legal title, the beneficial interest in the land would transfer immediately. Bruce could obtain immediate transfer of the legal interest if he paid the stamp duty and costs of changing the mortgages over to his name; otherwise, the legal interest would be devised to him upon Graeme's death. In consideration, Bruce was to pay Graeme an annuity of $5,500 per month and pay certain other expenses. Graeme was to transfer a portion of the assets of the G&E Currie Partnership (stock and equipment) to Bruce. Bruce would assume half of the debts of the G&E Currie Partnership. Bruce pleaded that the agreement was complete and binding by 2006 although it was later varied on several occasions when Graeme agreed to the annuity being reduced. Ultimately, Bruce was paying $2,000 per month. Bruce has farmed the Glenayr Farms properties since 2005. Based on these matters, Bruce claimed that there is a contract, alternatively, that Graeme is estopped from denying his promises. Bruce seeks a declaration that the Glenayr Farms properties are held on trust for him and an order that the titles to the Glenayr Farms properties be transferred to him.
Before the commencement of the trial, whilst maintaining that there was a concluded contract by 29 March 2006, Bruce abandoned his case in contract because he accepted that the conduct after 29 March 2006 does not meet the test for part performance identified in McBride v Sandland (1918) 25 CLR 69. The agreement was not in writing and is therefore unenforceable as a contract. Bruce maintained that the discussions and agreement reached on 29 March 2006 are relevant to Bruce's proprietary estoppel claim.
Bruce' proprietary estoppel case is that he was induced by his father's representations and conduct over the period from early 2003 up to the meeting with Mr Michael on 9 March 2011 to expect or assume that his father would assign or pass ownership of the Glenayr Farms properties to him together with the plant, equipment, stock, grain and chemicals associated with Glenayr Farms which he did in fact receive.
In his defence Graeme denies there was any contract or agreement, denies that he made any promises to Bruce that he would transfer the Glenayr Farms properties prior to his death and denies that Bruce is entitled to any relief. Graeme made a counterclaim. He claimed that he leased the Glenayr Farms properties to Bruce through several leases, that Bruce failed to comply with the terms of the leases and Graeme suffered loss and damage as a result. At the commencement of the trial Graeme abandoned his counterclaim.

Graeme commences CIV 1848 of 2015

In 2015 Graeme in his personal capacity and as trustee for the Glenayr Trust commenced proceedings CIV 1848 of 2015 against Bruce in his personal capacity and as trustee for the Glenayr Trust No 2. Graeme's claim is based on his guarantee of Bruce's Rabobank facilities. Graeme says that in April 2011 in his personal capacity and in his capacity as trustee for the Glenayr Trust he paid $1,198,700 to Rabobank on behalf of Bruce in his personal capacity and as trustee of the Glenayr Trust No 2. Graeme says that that money came from the proceeds of sale of land owned by Graeme in his personal capacity and as trustee for the Glenayr Trust of land comprised in the Glenayr farm. Graeme says that by reason of those matters Bruce in his personal capacity and as trustee for the Glenayr Trust No 2 is indebted to Graeme in the sum of $1,198,700. Further and alternatively Graeme says he is entitled to recover that sum from Bruce in his personal capacity and as trustee for the Glenayr Trust No 2 pursuant to his right to be subrogated to the rights of the creditor (Rabobank) as against Bruce. Bruce denies that claim and denies that Graeme is entitled to any relief.

Application to amend defence refused

Graeme closed his case on the 10th day of the trial. The court then adjourned for three weeks for the parties to present their closing submissions. After counsel for Graeme, Mr Dillon, had completed his closing submissions he moved to amend Graeme's defence in the terms of a minute of proposed further amended defence dated 20 July 2017 (the Minute). The Minute contained three new paragraphs. Paragraph 55A.1 pleaded that if Bruce acquired at any time up to December 2011 any proprietary interest in any part of the land comprising Glenayr Farms, by entering into a written lease agreement with Graeme in about December 2011, Bruce elected to abandon those interests in favour of being entitled to possession of or to maintain possession of the land as a tenant pursuant to the terms of the lease. Paragraph 55A.2 pleaded that if Bruce has acquired any proprietary interest in the land comprising Glenayr Farms that interest is subject to or burdened with the conditions set out in [55A.2.1] ‑ [55A.2.4]. Paragraph 55A.3 is that alternatively to [55A.2] if Glenayr Farms are held by Graeme on constructive trust for the benefit of Bruce absolutely, then that constructive trust is subject to the same conditions as those set out in [55A.2]. The amendments were opposed by the plaintiff. I refused the proposed amendments.
The question of whether a party should have leave to amend its defence will depend on the relevant court rules and all of the circumstances of the particular case and will necessitate considering a number of factors including the reason for, and length of, the delay in applying for the amendment, prejudice that would be suffered by the opposing party if the amendments were allowed, the costs associated with the delay, the point in the litigation at which the application for amendment is made and prejudice to other litigants awaiting trial dates: Aon Risk Services Australia Ltd v Australia National University (2009) 239 CLR 175.
Proposed [55A.1] pleads that Bruce elected to abandon any proprietary interest in the Glenayr Farms properties by entering into the written lease executed in December 2011. That plea raises potentially difficult questions of law. In his submissions in support of the amendment Mr Dillon submitted that the proposed plea of election is 'in the nature of a Sargent case type election'. Mr Dillon was referring to Sargent v ASL Developments Ltd (1974) 131 CLR 634. That was a case of election at common law. Election at common law is concerned with the choice of a party between alternative rights or remedies. However, the term 'election' is used at common law in a quite different sense, which has no connection with the equitable doctrine of election: Meagher, Gummow & Lehane, Equity Doctrines & Remedies (5th ed) [40‑025]. Mr Dillon did not address that issue. If the amendments were allowed the plaintiff would have had to be given time to consider the issue. That would cause further delay. Furthermore, it would occupy further court time to the detriment of other litigants awaiting trial.
Proposed [55A.2] is that if the plaintiff has acquired any proprietary interest in the Glenayr Farms properties that interest is subject to or burdened with the specified conditions. The conditions, or some of them, are uncertain. For example, condition [55A.2.1.3] is that Bruce is to farm to the satisfaction of his father, Graeme. Is the satisfaction of Graeme to be entirely subjective or, if not, by what criteria is it to be determined? Condition [55A.2.2] is that Bruce is to maintain reasonable family relations with Graeme and Erica and Bruce's siblings. Does that condition involve any element of fault? Is it a breach of the condition if the relations between Bruce and any of Graeme, Erica, Andrew, Peter and Joanne break down without any fault of Bruce and indeed by reason of unreasonable conduct by any of the other family members?

The Aon factors weigh against allowing the proposed amendments. First, the length of the delay is extensive; years, not weeks or months. Importantly, no, or no adequate, reason for the delay was advanced. Secondly, the plaintiff would suffer prejudice if the amendments were allowed. The plaintiff prepared and presented his case without addressing any of the matters raised by the proposed pleadings. For example, if the proposed amendments had been pleaded earlier the plaintiff may have adduced evidence relevant to maintaining reasonable family relations with his mother, father and siblings, such as whether any of them are particularly difficult people to get on with and family dynamics generally. Thirdly, the amendments would cause additional costs. The plaintiff would have to be given an opportunity to respond to the new pleadings. That would involve an adjournment and consequential increased costs. Fourthly, the amendments were advanced after counsel for the defendant had completed his closing submissions. In the circumstances, that is too late in the litigation. Fifthly, allowing the amendments would cause prejudice to other litigants awaiting trial dates. Allowing the amendments would have caused an adjournment and a further hearing to the detriment of other litigants awaiting hearing dates.

The witnesses

The principal testimonial evidence adduced by the plaintiff was the evidence of Bruce, and, to a lesser extent, Lara. The plaintiff also adduced evidence from Mr Sheppard and Mr Hetherington who were officers of Rabobank at relevant times and Mr Vincent, a farm consultant who had advised Bruce in carrying on Glenayr Farms. The plaintiff adduced expert evidence from Mr Johnston, an agricultural consultant. The principal testimonial evidence called by the defendant was the evidence of Graeme. The defendant also adduced evidence from Erica, Andrew and Peter. The defendant adduced expert evidence from Mr Fievez, an agricultural consultant.
The major contest was between the evidence of Bruce and Graeme. Both were extensively and robustly cross‑examined. I had a good opportunity to observe and to listen to the way in which they gave their evidence. Ultimately, I am satisfied that Bruce was a truthful witness. I found Graeme to be an unreliable witness and in many respects not a truthful witness. I will now set out my more detailed findings about the witnesses before setting out my findings on important factual matters.

Bruce

Bruce's counsel, Mr Cuerden SC, says that there was no or no serious or successful attack on the credibility of Bruce. Mr Cuerden is correct in submitting that much of Bruce's evidence was unchallenged. I have some reservations about the accuracy of some of Bruce's recollections. Some of his recollections are probably coloured by his assumption that Graeme would transfer the Glenayr Farms properties to him and his hopes, expectations and feelings of entitlement arising from his belief that over many years Graeme had said words to that effect and conducted himself consistently with such an intention. However, in general Bruce was an honest witness doing his best to recall events that occurred over many years and in some cases in difficult emotional circumstances. In general I accept his evidence.

Lara

Mr Cuerden says, and I accept, that there was no or no serious or successful attack on the credibility of Lara. Lara was an honest witness doing her best to recall events and answer the questions put to her in cross‑examination. Lara made appropriate concessions as to matters she did not remember or in respect of which she was not involved. In general I accept her evidence.

Other witnesses for the plaintiff

The Rabobank officers, Mr Sheppard and Mr Hetherington were independent witnesses. There was no challenge to their credibility. To a substantial extent their evidence is based upon contemporary documents. I accept their evidence.
Mr Vincent is a farm consultant who advised Bruce and Lara. To that extent he is not an independent witness. However, he gave his evidence in an open and forthright manner. I accept his evidence.

Expert witnesses

The plaintiff and the defendant each adduced evidence from an agricultural consultant. The plaintiff called Mr Johnston and the defendant called Mr Fievez. Each was an expert and independent witness. In general I found Mr Johnston's evidence more compelling. Whilst Mr Fievez's evidence was generally reasonable I found some of his assumptions unwarranted and his approach to some matters not persuasive.

Graeme

Graeme was not a credible or reliable witness. The plaintiff points to a number of matters impacting upon Graeme's credibility. I accept that those matters show that Graeme is not a credible or reliable witness.
First, Graeme failed to discover a copy of Lara's notes of the 29 March 2006 Currie family meeting with his handwritten annotations made shortly after the meeting. He discovered a clean copy of the notes without his annotations. He made no mention of his annotated copy of the notes in his extensive witness statement. The annotated notes show that the account of the 29 March 2006 meeting in his witness statement is wrong in many and significant ways. Graeme gave no explanation for his failure to discover the document. He initially claimed he had given it to his solicitors. When the document was called for, his solicitors stated they did not have the document, or a copy of it. Graeme then said that he had 'brief cases full of notes and my handwriting on it' in his hotel room. It is likely that Graeme did not give the document to his solicitors and did not discover it because it is inconsistent with the evidence he gave in his witness statement and adverse to his case. In any event, if Graeme did not knowingly withhold the document, the document shows that his evidence on an important matter - what was said at the 29 March 2006 meeting ‑ is completely unreliable.
Secondly, Graeme gave incorrect evidence that he was receiving cancer treatment in 2011. In his witness statement Graeme said that he was ill with cancer in 2008 and 2009 and into 2010. He said that Bruce repeatedly pestered him in the period that he was ill and particularly in 2010 to give land to Bruce. Graeme says that as a result of Bruce pestering him he agreed to allow the real estate agent, Mr McTaggart, to see what he could get for Glenayr Farms. Graeme says he was not keen to sell any land. Graeme says he was attending Hollywood Private Hospital for chemotherapy at the time and so agreed to meet with Mr Michael of Allion Legal. Graeme says that he spent a lot of time going backwards and forwards to Perth for cancer treatment in the period January 2011 and in the same paragraph of his statement he says that Mr McTaggart pressed him to sign a contract to sell Browns, Warrens and Ballyhoola to the Negris. In cross‑examination Graeme conceded that he had concluded his chemotherapy and radiotherapy on about 4 August 2010. Then he said it was surgery for his lung or treatment for a hernia. He agreed that neither involved cancer. It is likely that Graeme's evidence that he was receiving cancer treatment in 2011 was contrived to explain or lessen the significance of his conduct in agreeing to the sale of Glenayr Farms properties and the admissions he made to Mr Michael about Bruce's entitlement to the land. At the least, this matter shows Graeme to be an unreliable witness.
Thirdly, Graeme incorrectly claimed that he had asked Bruce and Andrew to sign a lease in around 2005 when Andrew and Bruce took over Graeme's debt to Rabobank. No such documents were discovered or were mentioned in Graeme's witness statement nor in Andrew's witness statement. It was not put to Bruce in cross‑examination that he had been asked to sign a lease in about 2005. The suggestion that Bruce was asked to sign a lease in about 2005 emerged for the first time in Graeme's cross‑examination. Graeme's evidence about the matter had all the hallmarks of evidence being made up as he went along. It is likely that Graeme initially confused asking Bruce to sign a lease in 2005 with asking Bruce to sign a lease in 2011 and then as the cross‑examination proceeded he stuck to the story of a lease being prepared in 2005 and elaborated upon it. At best Graeme's evidence on this matter shows that his recollection of important matters is unreliable. At worst it shows Graeme to be willing to fabricate evidence.
Fourthly, many aspects of Graeme's evidence and conduct were irrational and coloured his perception of events. For example, his description of Bruce or Lara's conduct as deceitful or Bruce as a liar was irrational: see ts 577, 578, 649, 652, 739. Graeme also described his solicitor Mr Michael to be a liar, said that Mr Vincent had an ulterior motive and that succession planners were there to take money off him. Graeme blamed Lara for Bruce's poor financial position because he believed Bruce and Lara lost a huge amount of money through Lara trading in wheat futures. Graeme was incapable of being persuaded away from that conviction notwithstanding the clear evidence to the contrary.
Fifthly, Graeme gave evidence about the discussion of monthly payments at the 29 March 2006 meeting which is completely contradicted by Graeme's annotations on Lara's notes of the meeting. Either Graeme made up his evidence‑in‑chief to support his case or his recollection is so coloured by the overlay of emotion and by his reconstruction of events to support his present beliefs that it is unreliable.
Sixthly, Graeme downplayed his role in the purchase of Lockes. In his witness statement Graeme said that Bruce initiated the discussions about the purchase of Lockes and conveyed the impression that he, Graeme, was unenthusiastic about proceeding with the purchase. He also said that Mr Sheppard was an acquaintance of Bruce implying that he was not independent of Bruce. His defence denied any encouragement to Bruce to purchase Lockes. However, in cross‑examination Graeme acknowledged that he informed Bruce of the opportunity to purchase Lockes, that it was a golden opportunity and he was not against it, that it was an obvious purchase for Bruce and he would have told Mr Sheppard that it was logical for Bruce to buy it and he told Bruce it was an opportunity not to be missed. In cross‑examination Graeme also agreed that his evidence about Mr Sheppard being an acquaintance of Bruce was not true.
My overall impression of Graeme was that he had a poor, if any, recollection of important events such as the meeting at which he presented The Currie Family document to Bruce and Andrew, the 29 March 2006 meeting and the meeting with Mr Michael. Graeme reconstructed events to fit the position he has now adopted that he did not agree to transfer the Glenayr Farms properties to Bruce and he did not induce or encourage Bruce to assume that he, Graeme, would transfer Glenayr Farms properties to Bruce. Graeme's evidence and his reconstruction of events is all coloured by that position.

Andrew

Andrew was a most unimpressive witness. He was belligerent and argumentative in the witness box, was deliberately obstructive and unco‑operative and repeatedly refused to answer straightforward questions.
Andrew's evidence as to what Bruce and Lara said to him about futures trading and losses is contradicted by the evidence of Bruce, Lara and Mr Vincent concerning Bruce and Lara's hedging activities which is entirely consistent with the documentary evidence and inconsistent with what Andrew claims was said to him.
Andrew initially denied having received a substantial loan from his parents in 2013 until it was wrung from him in examination‑in‑chief:
Do you have any loans with your father at this time---No.
If I said to you, you had a loan for 200,000 with him, would that be correct---No.
If I said you had a loan for 200,000 which had been reduced down to $167,000 what would you say to that---Yes. I would say yes, you're - you're getting closer. Yes. I'm not sure of the exact amounts, but I'm paying him back.
...
Did your father lend you any money at the moment---A while ago, yes. A while ago.
How much is presently outstanding on that loan---I'm not sure.
Can you say how much was the loan originally for---I will say $100,000, I think.
Right. Are you able to give us any idea how much is presently outstanding---I would have reduced it down to - about a third of it's left.
Right. A third. So $33,000 left outstanding; is that right---In somewhere there, yes (ts 818 ‑ 819).
In cross‑examination Andrew gave evasive and contradictory evidence about loans he had received from his parents within the last four or five years. He agreed that entries in the Ayrtoun Trust financial statements show that at the end of the 2012 financial year he owed his parents $16,139 and had borrowed an extra $183,000 or $184,000 in the 2013 financial year so that at the end of that financial year he owed his parents $200,000. When he was asked what was the reason for borrowing those monies from his parents Andrew repeatedly said that that was a question for his accountant, that he did not remember speaking to his parents about the loan and he had no specific recollection of the matter. The following cross‑examination proceeded:
Do you have any recollection---I can't be specific.
I'm not asking you specifics. I'm asking you whether you have any recollection of speaking to your parents in the 2013 financial year or either of them about borrowing money from them---I can't recall.
You can't recall it at all---Not at the moment. No.
It's a complete blank---Yes.
Can you think of any reason why you would have - you might have gone to your parents in the 2013 financial year to borrow money from them---I can't recall. No. I'm not sure.
Can you think of any reason other than the need to finance your farm operations---They're your words now like - - - Just - - ----How many times can I answer I can't recall.
Yes. Well, I'm actually asking you a different question. What I'm asking you is if, as your accounts suggest, you borrowed almost $200,000 from your parents in the 2013 financial year, I am asking you whether there would have been any reason for that other than you needing the money to finance your farm operations---Yes. Could have been. I can't recall (ts 886).
When he was asked if he recalled saying in examination‑in‑chief that he had borrowed $100,000 from his father Andrew said:
So I'm not going to sit here and play word entrapment at your pleasure (ts 886).
There were many instances of Andrew not having any recollection of matters one would expect him to remember, such as borrowing in the order of $184,000 from his parents four years ago, but he claimed to recall things said by Bruce or Lara many years earlier.
I find that Andrew was not a truthful or reliable witness. He coloured his evidence to support his father's case.

Erica

Erica gave a detailed witness statement. However, it was obvious in cross‑examination that she had little or no recollection of many of the matters in her witness statement. Erica did not give straightforward answers to the questions put to her. For example, in the course of her cross‑examination Erica asked counsel to explain to her what relevance his question had to what she was trying to put forward or what she was trying to say. When it was explained to her that her role was to answer the questions and not to be concerned about whether they were important she said 'Well, I can't remember accurately anything, quite frankly' (ts 965).
Erica did not recognise and at times contradicted the contents of parts of her witness statement. For example, Erica was questioned about [74] of her witness statement in which she said that there has never been any statement made by Bruce or Lara to her or in her presence that any reason other than poor farming performance existed or was responsible for Bruce's financial difficulties then or since. When she was asked what she meant when she referred to poor farming performance she said she could not answer it. She agreed that the paragraph was in the draft witness statement sent to her by Graeme's solicitors and she thought 'that looks close enough' and signed it. She said she thought there were more important things.
Perhaps the most revealing part of Erica's cross‑examination was when she was questioned about [83] of her witness statement in which she said that in March or April 2011 Bruce came to the house together with two men from Rabobank and that Bruce and the two men were pressuring Graeme to agree to sell the remaining Glenayr Farms properties in order to pay Rabobank back their debt and that Graeme told them in an aggressive manner that he would not agree to sell his land. In [84] and [85] Erica gives further evidence about the discussions at that meeting including Graeme stating words to the effect 'give me what you want me to sign. I might be dead in the morning'. In cross‑examination Erica said, in relation to [83] of her statement, she remembers some people coming to the house but she does not know the people. She then conceded that she did not know what they said because she left the room. In relation to the statement 'give me what you want me to sign. I might be dead in the morning' which she attributed to her husband in her witness statement she said she did not remember that because she was not there. In the end I can place no reliance on Erica's evidence.

Graeme Hewitt

Mr Hewitt was Graeme's accountant from about 1980 until he retired in 2005. Graeme described Mr Hewitt as a family friend. He spoke to Mr Hewitt the day before he gave his evidence. Graeme said that prior to his retirement Mr Hewitt had advised Graeme on all financial matters concerning the farm. Graeme had consulted Mr Hewitt on the issues of succession to his farming properties. Graeme consulted Taylor Smart solicitors after he received a letter of 27 January 2012 from Bruce's solicitors, MDS. Graeme saw Mr Saul Davies of Taylor Smart on about six occasions between receipt of the MDS letter and the letter in response of 19 July 2012. Mr Hewitt attended at least some of those meetings with Graeme. Graeme had discussions with Mr Hewitt during the period 2001 to 2003 about the transfer of the farming operations to be split between Andrew and Bruce. Graeme said that Mr Hewitt was 'heavily involved' so far as Graeme was concerned. Mr Hewitt prepared the Currie Group Land Holdings document for Graeme and the Currie Family document of 19 February 2003. Graeme said that as at December 2004 he was having ongoing continuous discussions with Mr Hewitt about the subject of the split between Andrew and Bruce and he continued to discuss it with Mr Hewitt in 2005.
Mr Hewitt did not give evidence. Graeme did not explain his failure to call Mr Hewitt to give evidence. I infer that Mr Hewitt's evidence would not have assisted Graeme's case.

The Currie family

Graeme was born in 1940. He was 76 years old at the time of the trial. He says that his ancestors have been farming in Western Australia since around 1890. His grandfather Archibald Currie began farming in the Narembeen and Bruce Rock district in or about 1919. Graeme's father, John Currie, commenced farming with Archibald in or about 1929. John acquired land on his own account over the years. Graeme assisted his father on the farm and joined his father full time in about 1956. The Currie farm at Bruce Rock was known as the Ayrtoun farm. Graeme started acquiring land himself which he called the Glenayr farm. John died in 1980. He left his interest in the land to Graeme in his will to be conveyed following the death of Graeme's mother. Graeme's mother incorporated John's land into the trust known as the Glenayr Trust and Graeme became the trustee of the Glenayr Trust. Graeme acquired more land that he added to the Glenayr Trust.
Graeme and Erica have four children: Joanne, born in 1965, Peter, born in 1968, Andrew born in 1970 and Bruce born in 1972. Graeme says that each of the children helped as best they could at the farming activities at all times that they lived on the Currie farm. As the sons grew up and left school they progressively joined Graeme in the farming operations. Each of the sons assisted on weekends when they went to school in Bruce Rock and during school holidays from boarding school at Guildford Grammar School. Eventually each of the three sons worked fulltime on the Currie farm.

The business name G&E Currie & Sons is a trading name of the Glenayr Trust. The land farmed at Bruce Rock was at all material times held either in Graeme's name or the name of Coodarin Grazing Co Pty Ltd.
In 1998 the Currie & Co Trust which had been established by Graeme purchased a property at Cunderdin. Peter and his wife Kim lived on and farmed the Cunderdin property. Graeme says that he agreed with Peter that Peter would pay a lease payment in the amount payable in interest on $600,000 borrowed by the Currie & Co Trust to provide part of the purchase price for the Cunderdin property.
Graeme says that he and Erica moved to their current house in the Bruce Rock township in about 1997. Andrew and his wife Brigitte moved to live in the Currie homestead where Graeme and Erica had formerly lived. Bruce moved into the house on Browns together with his then girlfriend who he subsequently married and divorced.
In 1998 to about 2003 Graeme, Andrew and Bruce worked together on the Currie farm. Andrew and Bruce received wages.
In October 2002 Lara started living with Bruce on the Browns property. They married in February 2006 and have two children who were aged 9 and 6 at the time of the trial. Lara worked as a grains marketer for AWB.

Early succession plan discussions

From 2001 to 2003 there were discussions about Bruce and Andrew renting the farm but that the rent would be paid by the Glenayr Trust. Some of these discussions were between Graeme and Mr Hewitt and some were between Graeme and Andrew and Bruce sometimes with Erica or Mr Hewitt taking part. Mr Hewitt drew a document entitled Glenayr Trust and dated 1 February 2001. It included the following points: 50% split of land, seed, fertiliser, fuel, sheep, operating expenses and income; plant to be shared; banking arrangements for the core debts is the responsibility of G&E Currie only ‑ repayments will be required from net operating profit; working capital will be arranged by Graeme and Andrew and Bruce must arrange and be responsible for all of their credit arrangements; there was to be a lease with payment to be made in wheat or $10 an acre on 17,608 acres; the Glenayr Trust is to pay the lease payment plus some other expenses; drawings are to be divided equally between Andrew and Bruce. There were other provisions about maintaining the land, bank accounts, taxes, capital investment and other matters. Graeme said that those arrangements did not eventuate but agreed that they were discussions about formulating a succession plan. There was no discussion at that time about Andrew and Bruce taking on Graeme's debt to the bank.

The split

In early 2003 Bruce wanted to split from G&E Currie & Sons and farm on his own. He discussed the matter with Andrew. In late 2002 or early 2003 Graeme, Andrew and Bruce discussed Bruce and Andrew farming on their own. Bruce says, and I accept, that Graeme said he would divide the properties between Andrew and Bruce and assign to Bruce a portion of his family property so that Bruce would be able to farm and treat the land as his own. Graeme said he wanted Andrew and Bruce to pay him an annual amount in return for assigning the land to each of them. Bruce says, and I accept, that he assumed as a result of those discussions that he would be assigned a portion of Graeme's land.
Sometime later Graeme presented to Bruce the document titled 'Currie Group Land Holdings'. That document lists the portions of land which were to be assigned to Andrew and to Bruce respectively. Graeme said to Bruce that that was how the land was to be divided between them. Later, in early 2003, Graeme, Andrew and Bruce met with Mr Graeme Hewitt. Mr Hewitt was Graeme's accountant and financial adviser. They discussed that the land would be split between Andrew and Bruce and also discussed the split of farm machinery between them. The decision as to who would be transferred what machinery was not finalised at that meeting. Graeme again mentioned the payment of an annual amount to him but it was not settled at that meeting.

20 February 2003 meeting

On 20 February 2003 Graeme, Andrew and Bruce had a discussion at the Bruce Rock house. They discussed splitting up the Currie farm. Graeme said that he and Graeme Hewitt had split up the land strategically so that the properties that Bruce would farm were joined together and those that Andrew would farm were joined together. Graeme said that in return for Andrew and Bruce being able to farm the land in their own right he wanted Andrew and Bruce to pay him an annual amount. Graeme presented a document entitled The Currie Family and dated 19 February 2003 which consisted of 18 paragraphs and a schedule. The document had been prepared by Mr Hewitt at Graeme's request. The document included the following paragraphs:
1Land has been divided by [Graeme] and a schedule is attached.
2The principle of the division is that both Andrew (A) and Bruce (B) receive equal value after allowing for $100,000 for farm improvements to B's farm.
3The following items are to be divided equally:
- Seed.
- Fertiliser.
- Chemicals.
- Drought Stocks.
- Plant.
- Fencing Stock.
- Fuel.
- Livestock.
- Other tangible items.
4Responsibility for payment of HPA/Lease Liabilities and Bank Loan Repayments is to divided equally. All liabilities must be paid on time.
5Plant must be maintained to present standard. No sales or purchases of plant are permitted for a cost price of more than $5000 without the prior approval of [Graeme] and Bank. …
6Land is to be maintained in good standing and is not to be overcropped or overstocked.
…
11All farm improvements are to be maintained to the present standard. Major development over $5000 per annum is not permitted without the prior approval of [Graeme] and Bank.
…
15Working capital will be arranged by [Graeme] with the Bank and input of [Andrew & Bruce]. The overall responsibility to the Bankers is for the [Graeme & Erica] only, however, both [Andrew & Bruce] are equally responsible for repayments for the bank loans and overdraft, and, HPA/lease repayments.
…
17[Graeme & Erica] agree to be available for taxation purposes and require:
-$120,000 PA tax free payable monthly at $10000 per month in advance.
-All Mercedes Benz and Rodeo Utility (or equivalent) operating expenses including fuel and tyres are to be provided by [Andrew & Bruce] equally.
-All their residential expenses (Rates and Taxes, insurance, pest control, maintenance, telephone, electricity etc are to be paid equally by [Andrew & Bruce].
-Life assurance and superannuation premiums also payable equally by [Andrew & Bruce].
18First priority is to;
-Clear existing bank debts and HPA/lease debts.
-Pay for [Graeme & Erica] as per rate 17 above.
-Maintain the farm property and assets.
The schedule is entitled 'Glenayr Trust Land Allocation as at 19 February 2003'. It allocates between Bruce and Andrew the blocks of land which constituted the Currie farm and stated the acreage of each block. The total acres allocated to Bruce were 8,349 and the acres allocated to Andrew were 9,259. In a subsequent conversation Bruce complained to Graeme that Andrew would receive 938 acres more than Bruce. Graeme said that that was his wish and that was the way it would be.
On 8 April 2003 the Glenayr Trust No 2 was created for the purpose of Bruce carrying on his own farming business. The documents were prepared by Graeme Hewitt and Graeme's solicitors, Taylor Smart. The documents were presented to Bruce and he signed them.
Later in 2003 Bruce said to his parents that he knew an individual who could assist the family with succession planning. Erica said that they did not want to use a succession planner. She said she thought Graeme and the accountant could deal with it themselves.

Division of machinery

In late 2003 and 2004 Bruce investigated the value of Graeme's machinery to assist in dividing the machinery equally between he and Andrew. On 29 December 2004 Bruce sent a letter to Graeme, Erica, Andrew and Bridgette. The letter commenced: 'As we approach the first stage of the separation of G&E Currie & Sons, I thought I should put some things in writing so everyone understands what I'm trying to achieve from the division'. The letter went on to say there needed to be a fair provision for the lack of infrastructure on Bruce's allocated land and the division of land must be equalised. In early 2005 Andrew and Bruce agreed on the division of the machinery.
In about mid‑2005 Glenayr Farms and Ayrtoun Farms, that is Bruce and Andrew, each assumed half of the debt of G&E Currie & Sons. Bruce and Andrew each obtained a facility with Rabobank, and drew down on the facility to pay out the debt owing by G&E Currie & Sons. Graeme made the arrangements with Rabobank for these transactions. The transactions are explained in a credit submission prepared by Mr Sheppard of Rabobank on instructions from Graeme. The submission says that the Glenayr Trust No 2 had been created to accommodate the split of the farming entity of the Glenayr Trust in conjunction with the Ayrtoun Trust and that each of the new entities was to assume a portion of the current limit of $3,000,000 of the Glenayr Trust and an increase in working capital requirements to ensure completion of their programme for the 2005 season. Glenayr Trust No 2's facility was for $1,650,000. The submission, prepared by Mr Sheppard on information given to him by Graeme says:
Farmlands have been willed to each of the sons by their father and they have already split the actual area that they are working into two separate operating farms and machinery and stock have also been designated to each new entity.
However the actual ownership will not be changed at this time but will be gradually switched as and when directed by their financial advisers to give them maximum taxation advantage.
Bruce's loan, like Andrew's, was guaranteed by G&E Currie & Sons and the land, which was still in Graeme's name, was security for the loans.
Graeme signed the guarantee in his personal capacity and as trustee for the Glenayr Trust and as director for Coodarin Grazing Co. Erica signed as director of Coodarin Grazing Co. On 1 July 2005 the sum of $1,551,659.05 was transferred from Bruce's Rabobank account to Graeme's Rabobank account. This sum represented half of Graeme's total debt owed to Rabobank.
In cross‑examination Graeme appeared to assert at times that Bruce and Andrew paid off Graeme's debt to the bank as the purchase price for the plant and equipment they received. At other times Graeme asserted that the assets Andrew and Bruce received - plant, crops in the ground, seed, fertiliser and other things ‑ corresponded to the amount Andrew and Bruce paid to the bank to repay Graeme's debt. However, it is clear, not only from Bruce's evidence but also from Graeme's evidence, Andrew's evidence, the Rabobank credit submission and the circumstances that the amounts paid by Andrew and Bruce to repay Graeme's debt to the bank was not paid for the purchase of plant and machinery or any other assets. The thrust of Graeme's evidence in cross‑examination is not that Andrew and Bruce each paid him approximately $1.5 million to purchase assets but rather that the value to Andrew and Bruce of taking over the plant and machinery and farming the lands exceeded the amount they paid to the bank to repay Graeme's debt.

Lockes

Sometime in 2005 Erica told Bruce that a neighbour, Peter Locke, was looking to put his farm known as Lockes on the market. A meeting took place at the Bruce Rock house at which Graeme, Erica, Bruce, Andrew, Mr Hewitt and Mr Sheppard were present. Graeme said that the purchase of Lockes would be a good opportunity for Bruce because Lockes already had the infrastructure he needed and if Bruce bought Lockes he would not need to spend any money on infrastructure like sheds.
On 16 August 2005 Bruce received a fax from Rabobank concerning his financial capacity to purchase the Lockes property. When tenders were called to buy the Lockes property it was divided into three parcels ‑ A, B and C. Bruce decided to tender for two parcels ‑ A and B. Bruce's tenders were successful. Parcels A and B (Lockes) were purchased by Bruce as trustee for the Glenayr Trust No 2. Rabobank increased Bruce's facility limit by $1.25 million to $3 million for the purpose of purchasing the property including stamp duty and legal costs. The security remained as previously except that Lockes was added as security. The acceptance of the bank increase in facility was signed by Bruce, Graeme in his personal capacity and Graeme in his capacity as trustee for the Glenayr Trust and as a director of Coodarin Grazing Co and by Erica as a director of Coodarin Grazing Co.
In October 2005 there were further discussions about the split of the farming lands. Graeme said that he wanted Bruce and Andrew to each pay him and Erica $5,500 a month. Andrew and Bruce said they would. In October 2005 Andrew and Bruce started paying their parents $5,500 per month.
Bruce's purchase of Lockes settled on 28 February 2006. He paid approximately $1.117 million from his Rabobank account at settlement and took possession of the land at about that time.
In early 2006 Bruce engaged Richard Vincent of Consult Ag as a farm consultant. In February 2006 Mr Vincent said to Bruce that his debt level was too high and he needed to make immediate arrangements with Graeme to discuss putting a proper succession plan into action so that he could secure his future. Mr Vincent said that the absence of having a major asset in Bruce's name was troubling Rabobank and if only a portion of the land was transferred to Bruce it would provide him with the security to deal with the bank.

29 March 2006 meeting

On 29 March 2006 there was a meeting at the Bruce Rock house. Bruce called the meeting. It was attended by Graeme, Erica, Andrew, Bruce and Lara. Lara kept handwritten notes during the meeting which she typed up after the meeting.
In his evidence‑in‑chief given by witness statement Graeme said the following about the meeting:
The meeting … was not at all convivial. … Some of the matters set out in Lara's notes were discussed but they were not agreed upon at that meeting. Some of the items set out under the heading 'Things Agreed upon' were … agreed. … The remainder of the matters on Lara's notes were matters raised by Lara or her simply discussions. Lara did ask me how long I expected to live. I may have said 'maybe to 73 or 75'. There was no discussion about payments ending at age 73. I said that the payments would need to be made while Erica and I were alive and that either or both of us could live until we were 90 years old. I remember Lara asking me if I would transfer the land into Bruce and Andrew's names. I said that I would not transfer the land while I was alive and that Andrew and Bruce would get the land from Erica and my wills. … I was incensed when I received the so‑called minutes of meeting prepared by Lara. I considered that the notes were rubbish and not worthy of a response.
Graeme's evidence‑in‑chief about the 26 March 2006 meeting is contradicted in relation to almost every significant point by his annotations on the copy of Lara's typed notes which became exhibit 516. In cross‑examination Graeme agreed that his annotations were made on a copy of the notes shortly after he received them. I reject Graeme's evidence about the meeting. I also reject Andrew's evidence about the meeting. Andrew's evidence is inconsistent not only with the evidence of Bruce and Lara, which I generally accept, but is also inconsistent with Graeme's annotations to Lara's notes. Andrew said that Graeme said that Bruce was going to have to pay the $60,000 per year until he and Erica are dead and buried. Graeme's annotations say that he said they would be paid until age 70.
Based on Graeme's annotations to Lara's notes, Bruce's evidence and Lara's evidence, I find that the following things were agreed or discussed at the meeting. Bruce and Lara said that they were in a poor equity position, and acknowledged they should not have bought Lockes having an equity of only 56% and they are now in a very difficult situation and cannot afford to borrow any more money. There were discussions and agreement was reached about the AWB 2005 final distribution, tax matters, a life insurance bill and matters concerning the G&E Currie account. Lara asked about the timeframe on Graeme and Erica's payments of $5,000 per month from Bruce and Andrew. Graeme advised that it was written in his will that Bruce and Andrew would make payments until Graeme is 70 to 73. Graeme's handwritten annotation says 'aged 70'. Graeme said that they believed that they would not live much longer than 75 and that they did not have super. Lara mentioned that super is very important and that they may live until they are 90 and should be paying for this. Graeme acknowledged that super is important and that he was looking to set something up at that time. Lara asked what was the plan for the changeover of land from Graeme's name to Andrew and Bruce's names. Graeme said it will be handed over when he dies, the reason for this is to avoid having to pay stamp duty and the cost of changing over the mortgages into both the boys' names. Andrew, Bruce and Lara understood there would be a cost, Graeme said that if they wanted the land changed over then they will have to pay the stamp duty. The things to be done by everyone by the next meeting included that Graeme would phone his solicitor and get him to mail a copy of his will to him for all of them to confirm the details relating to the farm. Lara's note stated that she and Bruce do not want to see Graeme and Erica's will, that would not be right, but they did want to know the details of the farm succession and have that in writing separate from the will for all of them to be aware of.
The notes record a number of points under the heading 'The understanding Andrew and Brigitte and Bruce and Lara have of the succession plan' which Graeme confirmed in cross‑examination. First, they appreciate very much the opportunity that Graeme and Erica have given them to go farming in their own right. Secondly, they do not want Graeme and Erica to suffer in a monetary way at all but they do want a fair and reasonable transfer. Thirdly, they appreciate the hard work and dollars that Graeme has put into the farm and they expect Graeme to appreciate the work that they have put in over the years as well to get to where they are now. Fourthly, they understand that a monthly payment of $5,500 from both trading entities are to be paid until Graeme and Erica reach the age of 70 ‑ 73. Graeme's annotation is 'age 70'. Fifthly, from this age the payment will cease and Graeme and Erica will provide for themselves by way of a super fund or other means. Sixthly, they also understand that these payments are enough for Graeme and Erica to live off for all of their expenses and there will be no need for Graeme and Erica to approach either of the boys for any further money. Graeme noted 'we expect consideration for emergencies without having to beg'.
Under the heading 'Request from Bruce and Lara and Andrew and Brigitte' are the following points. First, we would like for a succession plan to be written up separate from Graeme's will that all parties agree to and sign so there is no misunderstanding at any stage as to where everyone stands. Graeme's annotation is that 'that was already done two years ago and signed, look at your copies'. In cross‑examination Graeme said that he was referring to the document he gave to Bruce and Andrew in February 2003.
In about February and March of 2006 Andrew and Bruce finalised the transfer of machinery from Graeme to Andrew and Bruce.

In 2006 Andrew agreed to pay Bruce $120,000 over a four year period to compensate Bruce for the greater acreage and infrastructure received by Andrew in the split of the Currie farm. In April 2006 Bruce increased his Rabobank loan facility by $150,000 to a total of $3.15 million to provide additional working capital.

Bruce wants to sell land

On 11 February 2007 Bruce and Lara wrote to Graeme. The letter said, amongst other things, that after having two bad years in a row and at the same time minimising costs as much as they could they are still in a very tight financial position and thought that they could only give it one more year and need an above average year that year to not have to look at selling some land. They asked Graeme to consider selling 1,000 ha to help them achieve a sustainable farm. They said they would prefer to sell McCalls and Taylors paddocks instead of Lockes because they still needed the infrastructure on Lockes to continue farming. They asked if that would be an available option if it came to it the following year. The letter said:
We also need to know the plans for the land that we're farming. Currently we have a massive debt with no security. We are concerned that we are paying $250,000 a year in interest costs to Rabo without any plans in place to gain the security against the loan. Can you please tell us what progression plans of handing over the land you have? So that we know that we are paying a loan to gain an asset, not just waiting for you to die which could be in 20 years time. From what we can see is that if you were to hand over the land then if we were to go under we would not affect the rest of the family and vice versa because Rabo could not touch anyone else's land. The main issue with the land is the fact that we are paying a debt/interest to Rabo with no ownership of an asset or plan to acquire an asset.
Bruce and Lara said they found it difficult to explain the finer details of their budget and had asked their consultant if he would be willing to go over it with Graeme. They asked if Graeme would be willing to go with Bruce to see their consultant and discuss their figures. Bruce and Lara received no response to the letter except that Graeme agreed to meet and did meet with Bruce and their consultant, Mr Vincent.
Graeme met with Bruce and Mr Vincent on 27 February 2007. Mr Vincent spoke about industry benchmarks for the level of equity for a farmer to have. Mr Vincent said that a level of 50% to 60% was very difficult for a farmer and was a lead indicator of difficulties for a farming business. In Bruce's case the purchase of Lockes had put he and Lara at less than 60% equity. Mr Vincent said that a period of profit and good yields was needed to pay this debt and to increase the equity buffer. Mr Vincent described to Graeme, Bruce and Lara's turnover and operating costs. Mr Vincent referred to Bruce and Lara's drawings, the amounts they paid on finance costs, the amounts that they paid for leases over Sedgewicks (lands leased by Bruce) and Lockes (the parcel of Lockes not purchased by Bruce, which he leased) and the annual payments being made to Graeme and capital payments. Mr Vincent said that the figures illustrated the difficulties that Bruce's farming enterprise had. Mr Vincent discussed the budget in 2007. Mr Vincent asked Graeme what his succession plans were for his children. Graeme said that Andrew had his own trust for operating his farm. Graeme said that he owned the land farmed by Andrew and this land would go to Andrew. Graeme said that, as to Bruce, Graeme owned the land that Bruce farmed and this was the land that was to go to Bruce. Graeme said that his will reflected what he had told Mr Vincent about his succession plans. Mr Vincent said to Graeme that a method of transferring to Bruce the land that was farmed by Bruce over a period of time would be to start transferring the land in stages so that over a period of say five years the land was transferred. Graeme said that the land ownership structure was complicated with the land being owned by trusts and land holding companies and he would therefore need to talk to his accountant to map it all out. Graeme said that his land had been split between Peter, Andrew and Bruce and that Andrew still owed $90,000 to Bruce from the arrangement that had been entered into due to the inequity of the split and this would have been paid by Andrew to Bruce in three payments of $30,000 each. Graeme gave Mr Vincent the name of his accountant, David Hewitt, who had taken over the accountancy business from his father Graeme Hewitt. Graeme told Mr Vincent that he should get the land ownership details from David Hewitt.
Later that day Mr Vincent contacted David Hewitt. David Hewitt provided Mr Vincent with details of Bruce's land. Mr Vincent told Bruce that David Hewitt had provided him with details of the land and that most of the blocks were in Graeme's name with the rest being in the name of his trust. Bruce said that he would go back to Graeme with the information and discuss the transfer. However, ultimately nothing came of the meeting. Graeme did not take any steps to transfer the land to Bruce.
In April 2007 Graeme agreed to reduce the monthly payment to $4,500 because of Bruce's difficult financial circumstances. In April 2010 Graeme agreed to reduce the monthly payment to $4,000.
Bruce says that between 2006 and 2010 he recalls that he had about half a dozen conversations with Graeme about the fact that he wanted Graeme to put at least part of Glenayr Farms into Bruce's name. The substance of each of the conversations was the same. Bruce said that he wanted to look into the costs that he would be required to pay to have the land transferred into his name and that putting at least part of the land into his name would provide him with some security and would enable him to be in a better position in dealing with Rabobank. Graeme said that he was prepared to consider transferring the properties but did not give any specifics as to how that would take place. I accept Bruce's evidence.
In a conversation with Ryan Hetherington of Rabobank in 2010 Mr Hetherington said to Bruce that there was a real difficulty with the bank agreeing to finance requests in circumstances where Bruce did not have any farming property assets other than the heavily encumbered Lockes. As a result of his conversations with Mr Hetherington Bruce spoke to Graeme about his concerns and those of Rabobank about his low level of equity. In June or July 2010 Bruce met with Graeme at the Bruce Rock house. Andrew was also present. Bruce said that he had a large debt against his name with no asset to show Rabobank and that made doing business with the bank difficult. Graeme said that he was going to transfer the Browns block into Bruce's name and the Osbornes block into Andrew's name. He said he would attend Rabobank in Perth to arrange that transfer. It never happened.
About two or three months later, at Bruce's request, Graeme visited Lara to discuss the land situation. Lara told Graeme about their dire financial position and that they needed to do something to alleviate the pressure they were under. Lara asked Graeme whether he would be upset if they sold some of the land. Graeme said that the land was theirs to do with as they pleased. However, Graeme said that instead of selling the land they should buy more sheep. He also said that if they could wait until the end of the year he had some mining investment that would come through and that would provide him with the means to assist them.
In October 2010 Graeme agreed to reduce the monthly payment to $2,000.
Bruce and Lara decided to sell Glenayr farm because of their dire financial situation.

Some Glenayr Farms properties are sold

On 6 January 2011 Bruce met with his parents at the Bruce Rock house. Bruce said 'I am out of farming'. He said he wished to sell the farm. Graeme said he would help Bruce out as much as could but he did not have enough money to prop it up. Graeme said he would sell the land to get Bruce out of the situation. Graeme mentioned using the real estate agent, Glen McTaggart. Bruce asked Graeme to contact Mr McTaggart. Bruce said he proposed all of Glenayr Farms be sold. Graeme said he would contact Mr McTaggart. Graeme contacted Mr McTaggart and made an appointment for Mr McTaggart to meet with Graeme, Andrew and Bruce.
On 10 January 2011 Mr McTaggart attended the Bruce Rock house. Graeme, Erica and Bruce were there. Bruce said to Mr McTaggart that the farming operation was financially screwed and he had reached a position where it would be necessary to sell land. Bruce said it was his preference to sell all of the land but he was open to selling portions if need be. Mr McTaggart said it would be best to give the public the option to either buy the whole farm or particular lots. Graeme said he agreed to the proposal because it was Bruce's wish to sell the property to repay the bank debt.
Subsequently, Bruce and Graeme signed an exclusive selling agency agreement with Mr McTaggart's firm Landmark. On 21 January 2011 Mr McTaggart met with Bruce and Graeme at the Bruce Rock house. Mr McTaggart showed his proposed advertising campaign. Graeme agreed.
On or about 4 March 2011 Bruce was informed that Geoffrey and Phillip Negri had offered to purchase the properties known as Warrens, Browns, Ballyhoola and Lockes.
On or about 8 March 2011 Graeme telephoned Bruce. Graeme said he wanted to discuss the sale of the farm. Bruce asked what was going on. Graeme said he wanted to have a succession meeting with a lawyer, Peter Michael. Bruce agreed to attend the meeting.

Meeting with Michael 9 March 2011

Graeme met with Mr Michael alone on 8 March 2011. Graeme said that he went to Mr Michael because he wanted to put in place an agreement that would govern his relationship with Bruce and Andrew going forward. Mr Michael's handwritten notes show that Graeme told Mr Michael that most of the farm was in Graeme's name, that it was divided between his sons Andrew and Bruce and that Graeme had left the farm in 2005. Mr Michael noted 'Landmark have an offer for about 1/2 of Bruce's land (some Bruce's ‑ some Graeme)'. That is a reference to the offer Landmark had received from the Negris for the purchase of Lockes and the blocks known as Browns, Warrens and Ballyhoola. Graeme described those blocks as 'Bruce's land' notwithstanding that they remained registered in his, Graeme's, name. Mr Michael noted that Graeme told him his sons were paying $2,500 a month each for Graeme and his wife to live on which was not enough. Mr Michael recorded 'decision making with Bruce re sale, one offer in place to be determined by Bruce'. I infer that Graeme informed Mr Michael that it was for Bruce to decide whether to sell the Glenayr Farms properties and it was for Bruce to determine whether the offer to purchase Browns, Warrens and Ballyhoola as well as Lockes should be accepted. Another note made by Mr Michael is that Graeme wanted to retain the blocks known as Lollars and Bedells. I infer that if the sale of Browns, Warrens and Ballyhoola was completed Graeme wished to retain Lollars and Bedells for himself and therefore the remaining blocks, Millers East, Taylors, McCalls and Boas would be retained by Bruce.
The following day Mr Michael met with Graeme, Andrew and Bruce. Mr Michael prepared a memorandum entitled 'Currie Family, meeting held at Allion Legal, Wednesday 9 March 2009'. Mr Michael sent a letter of 10 March 2011 to Graeme entitled 'Succession' in which Mr Michael said he enclosed 'a resolution that we believe was agreed'. The enclosure is the 'Currie Family, Meeting held at Allion Legal, Wednesday 9 March 2009' memorandum. The memorandum records that those present were Graeme, Andrew, Bruce and Mr Michael. The memorandum says that issues were discussed in regard to the land ownership of the farming land at Bruce Rock and the entitlement to the farmland through various documents and through various legal principles. Mr Michael recorded:
Most of the farmland is in Graeme's name (a small portion of Bruce's land is in his own name).
Andrew and Bruce have been farming for most of their lives and in 2005 and 2006 each became entitled to a set portion of the land on the understanding that this land would be farmed exclusively by each of Andrew and Bruce with the entitlement that they would become the owners of the land upon the death of Graeme.
In cross‑examination Graeme, after some evasion, said that that is what he, Graeme, had told Mr Michael the previous day. The memorandum went on to say that Bruce was contemplating the sale of some or all of the land and needed assurance that he is able to deal with the land as if he was the owner. The memorandum then states that Graeme, Bruce and Andrew resolved the following:
1.Andrew and Bruce were each able to make decisions in regard to the ownership of the land as if they were the owner, notwithstanding that the land remains in Graeme's name.
2.Bruce has the sole power to make the decision in regard to the sale of part of his farmland on an offer presented by Landmark at the meeting.
3.Bruce is entitled to make future decisions in regard to the sale of the balance of the land or the sale of all of the land in one piece, subject to and conditional upon the following clause.
4.Upon either of Andrew and Bruce selling more than 75% of the farmland currently occupied by them, then each must pay to Graeme and Erica a lump sum of $500,000 which then releases that son from the obligation to make any further payments to the parents.
5.It is agreed that the land is encumbered to Graeme and Erica in regard to payments that are currently being made for support.
6.Graeme should review his Will to make certain the Will accords with the provisions set out herein. In particular, the farm land must be left in the Will to each of the boys subject only to the payment of the $500,000 upon sale and not subject to any other encumbrances.
7.Graeme would consider transferring of the farm land to each of Andrew and Bruce so the land is not then left by Will.
In cross‑examination, Graeme said that point 1 could well be accurate, point 2 was accurate but point 3 was inaccurate. Points 4 and 5 are accurate, point 6 was not agreed and point 7 was a suggestion but not agreed. I do not accept Graeme's evidence. I find that the memorandum, including the seven points agreed, accurately record what was said and agreed at the meeting.

Sale to Negris completed

A day or two after the meeting Bruce called upon Graeme at the Bruce Rock house. Graeme referred to Mr Michael's memorandum. Graeme said that Mr Michael was a liar.
On 11 March 2011 Mr McTaggart telephoned Bruce. Mr McTaggart said that Graeme did not want to sign the offer made by the Negris and he would talk to Graeme about it. On 15 March 2011 Bruce telephoned Graeme. Bruce said he had accepted the offer on Lockes, Ballyhoola, Browns and Warrens. Graeme said how dare Bruce sell the land without him, he was not happy to sell the land. There was an argument between Graeme and Bruce. Bruce drove to Graeme's house. There was a heated argument. They continued the argument outside. Whilst standing next to his ute, Bruce pulled out an unloaded gun and pointed it at Graeme. Bruce put the gun away, got in his ute and drove off.
On 21 March 2011, at Mr McTaggart's instigation, Graeme signed the offer from the Negris to purchase Browns, Warrens and Ballyhoola. Settlement of the sale of these properties and Lockes occurred on 21 April 2011. The net sale proceeds of $1,198,700 was paid to Rabobank to reduce Bruce's debt to Rabobank to $1.1 million.
Bruce and his family remained on the Browns property pursuant to a peppercorn lease agreement with the Negris. Bruce continued to farm the remaining blocks of Glenayr Farms.

Bruce signs a lease

On 2 May 2011 Bruce had an argument with Graeme. Bruce asked Graeme if he would still allow Bruce to sell the rest of the land or assign the properties to him. Graeme said: 'Who gets their inheritance from a person before that person dies?' Graeme said he would hand over the land when he dies. Bruce called Graeme a 'fucking arsehole' and said this was making him ill and told Graeme to go to hell. At the end of the discussion Graeme said 'you're finished' or words to that effect.
On 22 July 2011 Erica delivered to Bruce a lease of the remaining properties comprising Glenayr Farms and said that Graeme wanted a lease in place for tax purposes. Bruce did not sign the lease.
On 27 November 2011 Bruce wrote to Graeme. In the letter Bruce asked a number of questions about whether he would receive the remaining land he had been farming in Graeme's will, whether he could treat it as his own until such time that it is put in Bruce's name and could he lease the land and make improvements. By letter of 15 December 2011 Graeme responded. Graeme said, amongst other things:
You have refused to sign the Lease for Glenayr Farms that I gave you earlier this year, despite the fact that Rabobank required that Lease for their funding purposes, of which you are aware. Accordingly, as you have no lease, I require you to vacate Glenayr Farms no later than 31 January 2012.
In relation to his will, Graeme said that all of his property or property under his control or the trust remain his and he was free to deal with the property as he sees fit.
At the time Bruce received the letter he was in the middle of harvest. On 19 December 2011 Bruce went to Graeme's house. Bruce gave Graeme the lease which he had signed. Bruce says he signed the lease because he felt he was under pressure to do it. He was worried Graeme would kick him off the land and as he was in the middle of harvest and was also getting ready for the 2012 crop. He was concerned that would be for nothing. Bruce told Graeme that he had spent a lot of money on preparing for the 2012 crop when he handed to Graeme the signed lease.
On 21 December 2011 Bruce saw Graeme at the Bruce Rock house. Graeme handed Bruce a letter. The letter said that the lease signed by Bruce expires on 31 December 2011 and that Graeme would be willing to negotiate a lease for the following year. The lease concerned some modifications from the previous document. Bruce said the lease was unworkable. Bruce left.

Bruce lodges caveat

In January 2012 Bruce lodged a caveat over the remaining Glenayr Farms properties registered in Graeme's name. In the statutory declaration made by Bruce in support of the caveat he stated that as a result of the facts set out in the declaration he believes that he has a beneficial interest in the caveated land. In the statutory declaration Bruce referred to conversations and dealings with Graeme and said:
As a result of the dealings between Graeme and myself and what Graeme told me from 2003 to 2006, I assumed from March 2006 and thereafter that the [land] was mine, I was able to treat it as my own and the legal title would be transmitted to me when Graeme died. Based on what Graeme said to me between 2003 and 2011, I understood that this was also his intention and our agreement.
Bruce set out things that he had done in reliance upon his assumption that the land was his and in part performance of his agreement with Graeme.
On 19 July 2012 Graeme's solicitors, Taylor Smart, wrote to Bruce. The letter said, amongst other things, that in or about 2005 Graeme agreed at the request of Andrew and Bruce:
(a)to allow Andrew and Bruce to have use of the farming properties of Graeme and to farm those properties in their own right;
(b)to divide the properties into two portions of close to equal proportions and give Andrew the right to use and farm one portion (Glenayr farm);
(c)to accept an annuity from Bruce of $5,500 per month; and
(d)to divide and transfer the plant, stock and equipment previously owned by Graeme or his associated entities to Bruce and Andrew in exchange for Bruce and Andrew agreeing to take over a portion of the liabilities of the Glenayr Trust trading as G&E Currie & Sons.
The letter went on to say the agreement was varied to the extent that it agreed that Bruce would sign a lease over the property, that Bruce signed a lease in or about 2011 but has refused to sign a further lease. The letter said that at no time was there any agreement that the Glenayr farm was to be transferred to Bruce on Graeme's death or at any time prior to his death and Graeme denies that Bruce has any beneficial ownership of Glenayr farm or is entitled to the legal title to be transferred into his name. The letter said that Graeme has instructed the solicitors to issue a 21 day notice in relation to the caveat.

Secondly, Mr Dillon submitted that Bruce sought to blackmail Graeme by threatening suicide if his father did not transfer land as requested by Bruce. The evidence relied upon by the defendant is Bruce's statement in his witness statement that he had an argument with Graeme on 2 May 2011 in the course of which Bruce said:
Do you know how much damage this is doing to me and my family? I said I was suicidal.
It was not put to Bruce that that was an attempt to blackmail his father. I find it was said by Bruce in the course of a heated argument after Graeme had signed the offer to sell some of the Glenayr Farms properties to the Negris. It is not appropriate to consider or apportion the blame between Graeme and Bruce for that argument. Bruce was upset and had recently started taking anti‑depressants and was not coping with all that was going on at the time. I find that Bruce's statement was not an attempt to blackmail his father to transfer land to him, Bruce.
Thirdly, Mr Dillon submitted that Bruce fell out with his brother Andrew to the point of engaging in offensive conduct. In their evidence Bruce and Andrew traded allegations of offensive conduct. I find it unnecessary to resolve those allegations. I find that Andrew took his father's side after the breakdown in the relationship between Graeme and Bruce and in the conflict between Graeme and Bruce. Andrew's antipathy to Bruce was apparent throughout his evidence.
Fourthly, the defendant says that Bruce said to Andrew 'I've got the rest of my life to make sure my parents end up with nothing'. The evidence of that is Andrew's evidence which is denied by Bruce and uncorroborated. I have found Andrew to be an unreliable witness. I do not accept his evidence that Bruce spoke those words.
Fifthly, Graeme relies upon Bruce commencing these proceedings in which he seeks relief that would deprive his parents of half the income to fund their retirement. Bruce commenced these proceedings because Graeme had resiled from the promise or assumption he encouraged and sought to evict Bruce from the land. In these proceedings Bruce seeks to enforce the assumption which Graeme induced or encouraged. The bringing of such proceedings is not disentitling conduct.
Sixthly, Graeme says that Bruce hindered any relationship with his parents and family. The fracture of Bruce's relationship with his parents and Andrew is principally a result of Graeme resiling from the assumption he encouraged, Graeme's conduct in giving Bruce notice to quit the Glenayr Farms and Bruce commencing these proceedings to enforce the assumption Graeme encouraged. None of that is disentitling conduct by Bruce. Insofar as other matters have contributed to the breakdown in the relationship between Bruce and his parents and Andrew they are not matters which amount to disentitling conduct.
The second matter relied upon by Graeme to establish that it would not be unconscionable for him to resile from the assumption is that enforcing the assumption would prejudice the interests of Erica to receive the $60,000 per annum payments and potentially her broader rights under the Family Provision Act 1972 (WA) should she decide to challenge Graeme's will. Erica was present at the 29 March 2006 family meeting. She knew, and did not say or do anything to dissent from, the succession arrangement agreed at that meeting. It is not unconscionable that Graeme be held to promises and encouragement which Erica agreed or acquiesced to.
The third matter which the defendant says makes Graeme resiling from the assumption not unconscionable is that to enforce the assumption would be prejudicial to the interests of Peter, Andrew and Joanne. Peter's position is that he accepts that having been given an opportunity to farm on his own by his father that was all he could expect from his parents. Enforcing the assumption does not prejudice Peter.
The defendant says that Andrew would be prejudiced because he has conducted himself on the basis his opportunity to farm the Ayrtoun Farms properties is on conditions set out in [55A.2] of the Minute. Ordering that the Glenayr Farms properties be transferred to Bruce is not relevantly prejudicial to Andrew. It may well be prejudicial in the sense that if Graeme does not transfer the lands to Bruce he may leave the lands to Andrew in his will. However, the fact that Andrew may benefit from the assumption not being enforced does not amount to a relevant prejudice from the assumption being enforced.
The defendant says that Joanne would be prejudiced by enforcing the assumption because under Graeme's wills she is required to await his and Erica's death before being entitled to transfer of the residential property in Bruce Rock. Enforcing the assumption does not relevantly affect Joanne. It causes no relevant prejudice to Joanne.
The relationship between Graeme and Bruce, like many relationships between father and son, is complex. Bruce has not been entirely without fault. Bruce's conduct to some degree contributed to his loss of any prospective succession or inheritance, by pressing for a legal transfer of land and acting angrily when his father failed to progress those plans and in relation to the sale of some of the Glenayr Farms properties to the Negris Graeme resiled from his agreement to sell the land. However, this must be set against the fact that Bruce has engaged in significant detrimental reliance since 2002 or 2003 with the expectation, induced by Graeme, that he would succeed to ownership of the Glenayr Farms properties. The fact that the relationship was brought to a premature end raises for consideration the notion that any equitable interest to which Bruce has now become entitled will have been accelerated. This gives rise to a consideration relevant to the assessment of Bruce's entitlement. However, Bruce's conduct has not been such as to disentitle him to equitable relief. Bruce is entitled to relief.

The measure of relief

In Giumelli v Giumelli at [6] and [40] - [48] Gleeson CJ, McHugh, Gummow and Callinan JJ held that, because the fundamental purpose of equitable estoppel is to protect the plaintiff from the detriment which would flow from the defendant's change of position if the defendant were to be permitted to resile from his or her promise, the relief granted may require the taking of active steps by the defendant including the performance of the promise and the performance of the expectation generated by the promise. In Sidhu v Van Dyke at [82] French CJ, Kiefel, Bell and Keane JJ said that that holding is supported by the leading decisions to which this category of equitable estoppel is usually traced. The authorities their Honours referred to included Dillwyn v Llewelyn (1862) 145 ER 1285, Ramsden v Dyson (1866) LR 1 HL 129 and Riches v Hogben (1985) 2 Qd R 292 which are cases of proprietary estoppel.
In Sidhu v Van Dyke at [84] French CJ, Kiefel, Bell and Keane JJ said:
If the respondent had been induced to make a relatively small, readily quantifiable monetary outlay on the faith of the appellant's assurances, then it might not be unconscionable for the appellant to resile from his promises to the respondent on condition that he reimburse her for her outlay. But this case is one to which the observations of Nettle JA in Donis v Donis are apposite:
'[H]ere, the detriment suffered is of a kind and extent that involves life-changing decisions with irreversible consequences of a profoundly personal nature … beyond the measure of money and such that the equity raised by the promisor's conduct can only be accounted for by substantial fulfilment of the assumption upon which the respondent’s actions were based.'
The observations of Nettle JA in Donis v Donis are apposite in this case. In Sidhu v Van Dyke at [85] French CJ, Kiefel, Bell and Keane JJ said that while it is true to say that the court as a court of conscience, goes no further than is necessary to prevent unconscionable conduct, where the unconscionable conduct consists of resiling from a promise or assurance which has induced conduct to the other party's detriment, the relief which is necessary in this sense is usually that which reflects the value of the promise. Their Honours went on to hold that in the circumstances of that case there was no reason to conclude that good conscience did not require that the appellant be held to his promises [86]. In this case good conscience requires that Graeme be held to his promises or assurances.
Graeme says that if Bruce has acquired any proprietary interest in the Glenayr Farms properties then that interest is subject to or burdened with a number of conditions or alternatively the court should impose such conditions on the relief it grants. One condition is that the legal title to the land would only transfer to Bruce on the death of Graeme and Erica. The circumstances may be such that the equity raised by the promisor's conduct can only be accounted for by granting relief by declaring a constructive trust or ordering the transfer of property during the defendant's lifetime, notwithstanding that the relevant representation was that the property would be transferred by will upon the defendant's death or there was no representation as to the timing of the transfer, if the defendant has unconscionably disavowed or resiled from the assumed or expected position during his or her lifetime: Flinn v Flinn, Rodda v Ian Rodda Pty Ltd.
The declaration of a constructive trust is to give effect to Bruce's proprietary entitlement. In Rodda v Ian Rodda Pty Ltd Nicholson J said:
To the extent Stuart has a proprietary entitlement, it will be because the title to the property, the subject of that entitlement, is now and perhaps has been for some time, at least in equity, in Stuart. That is, it is no longer Ian's property and, given Stuart's proprietary interest, should not be regarded as otherwise available to form part of Ian's estate divisible amongst his beneficiaries on death. Nevertheless, if Stuart's reasonable expectation was only to receive the farming business or part of it, either in specie or by way of equivalent value, upon retirement by or inheritance from Ian, the giving of a proprietary remedy now will involve this element of acceleration of the benefit the subject of the disappointed expectation. This is not a disentitling factor but a matter going to assessment [304].
Nicholson J went on to say that the court is not to search for the 'minimum equity' to do justice in the circumstances and is not to measure or weigh the detriment minutely in order to convert it into some equivalent of cash or kind but there must be a sufficient proportionality of any interest or remedy ultimately granted when compared with the prejudice or detriment suffered by the plaintiffs and the overall justice of the case [305]. Nicholson J said that the starting point for the remedy is the fulfilment of the expectation engendered [306].
The starting point for the remedy is the fulfilment of the assumption induced. Relief is to be moulded to recognise practical considerations, such as the need for clean break, and to take into account any injustice the party estopped would suffer. The issue of the appropriate remedy in this case, having regard to the need for proportionality, should take into account the following. Bruce's assumption prior to 2011 was that he would, in time, assume legal ownership of the Glenayr Farms properties. However, this was on terms that this was to be at a time of Graeme's choosing, either during his lifetime or upon his death and Bruce was to pay an annuity to Graeme until he achieved a certain age and provide other benefits to Graeme for an indeterminate period. In 2011 Graeme effectively gave Bruce some of the properties by applying the proceeds of the sale of the land to the Negris to reduce Bruce's debt to Rabobank.
To the extent Bruce has a proprietary entitlement, it will be because the title to the Glenayr Farms properties is now and has been for some time, in equity, in Bruce. That is, the Glenayr Farms properties are no longer Graeme's property. Nevertheless, if Bruce's assumption was only to receive the properties by inheritance from Graeme, or at an earlier time with Graeme's agreement, the giving of a proprietary remedy now will involve the element of acceleration of the benefit the subjection of the assumption.
The notion of acceleration is relevant to the appropriate remedy; any proprietary remedy to which Bruce is to be entitled will operate to deprive Graeme of part of his interest and to advantage Bruce, during Graeme's lifetime and at a time earlier than otherwise might have been the case had Graeme adhered to his promises and representations.
The expectation engendered in Bruce was that he would work and treat the Glenayr Farms properties as his own and Graeme would assign or pass legal title to him by will or at some earlier time. The principal condition was that Bruce would pay to Graeme and Erica $66,000 per year, an amount which Graeme later agreed to reduce. There is controversy about how long the payments were to continue. At the Currie family meeting of 26 March 2006 Lara asked about 'the timeframe on Graeme and Erica's payments of $5,000 per month' and Graeme advised that it was written in his will that he would make payments until Graeme is 70 - 73. Graeme also said that if one of them was to pass away then payments would be halved up until the age of 70 ‑ 73. Graeme's annotations to Lara's notes state somewhat inconsistently that the payments were to continue to Graeme to age 70 and if one of them was to pass away then payments would be halved up until the age of 75 plus. Bruce has been maintaining the payments up to now. Graeme is now 77 years old. Erica will turn 77 later this year. The expectation engendered by Graeme was that the monthly or annual payments would have ceased by now. However, Bruce has not paid to Graeme the monthly payments in the amount of $5,500 as was agreed in October 2005. If Bruce had paid Graeme $5,500 per month until Graeme turned 73, Graeme would have received about $100,000 more than he has received. It is true that Graeme agreed to reduce the monthly payments because of Bruce's financial circumstances. However, the fact remains that Graeme has received substantially less than he would have done if the payment condition had been adhered to.
In my view Bruce's equity will be satisfied by the transfer of the remaining Glenayr Farms properties to Bruce subject to Bruce making a payment to Graeme to account for Bruce receiving full ownership of the properties and Graeme losing any entitlement to the properties, or benefits under the succession agreement between Bruce and Graeme, at an earlier time than Bruce was entitled to insist upon. The appropriate relief is to declare that Graeme holds the remaining Glenayr Farms properties on constructive trust for Bruce and further that Graeme is to transfer the freehold of those lands to Bruce subject to Bruce causing any guarantee by Graeme of any loans or facilities of Bruce to be discharged and Bruce paying Graeme $100,000.

Counterclaim

The counterclaim by Graeme in CIV 1237 of 2013 was not pressed. It will be dismissed.

Claim against Andrew

Andrew was joined as a defendant on the basis that Bruce pleaded that the discussions at the 29 March 2006 meeting and the actions and conversations otherwise pleaded in the statement of claim gave rise to an agreement between Bruce, as trustee for the Glenayr Trust No 2, Graeme and Andrew on the terms pleaded in the statement of claim. Andrew was joined because it was pleaded that he was a party to the contract. No relief was sought against him. The plaintiff abandoned his claim in contract before the commencement of the trial. In his opening submission counsel for the plaintiff confirmed that no relief by way of proprietary estoppel was sought against Andrew.

Graeme's claim ‑ CIV 1848 of 2015

In CIV 1848 of 2015 Graeme claims to be subrogated to Rabobank's rights in respect of part of Bruce's debt to Rabobank which was guaranteed by Graeme and which was repaid from the proceeds of the 2011 sale to the Negris of land registered in Graeme's name.
Graeme's claim in CIV 1848 of 2015 cannot succeed because I have found that Bruce has a proprietary interest in the land that was sold. However, in case the matter should proceed further, I will set out in a summary fashion my findings on the assumption that Bruce's proprietary estoppel claim has failed.
Graeme's pleaded case is as follows. Bruce, in his personal capacity and as trustee for the Glenayr Trust No 2, borrowed $3.15 million from Rabobank. Graeme agreed to guarantee all monies which should be due and owing from Bruce in his personal capacity and as trustee for the Glenayr Trust No 2 to Rabobank and to pay Bruce's debt to Rabobank on demand. In 2010 or 2011 Rabobank informed Graeme that demand had been made to Bruce for a reduction in the level of Bruce's debt to Rabobank and Rabobank would call upon Graeme's guarantee if Bruce did not reduce the level of debt. Bruce informed Graeme that his financial position was so bad that Rabobank would sell Graeme's land if Graeme did not voluntarily do so. Bruce's agent informed Graeme that Graeme had to sell land to raise funds to reduce Bruce's debt otherwise Rabobank would sell the land. Bruce failed to pay the sums required to meet the demands of Rabobank to reduce the level of his debt. On or about 21 April 2011 Graeme in his personal capacity and in his capacity as trustee for the Glenayr Trust paid the sums of $393,017 and $805,683 respectively to Rabobank on behalf of Bruce. Those funds came from the proceeds of sale of land owned by Graeme in his personal capacity and as trustee for the Glenayr Trust. Graeme says that by reason of those facts and matters Bruce, in his personal capacity and as trustee for the Glenayr Trust No 2 is indebted to Graeme in the sum of $1,198,700 and further or alternatively Graeme is entitled to recover the sum of $1,198,700 from Bruce in his personal capacity and as trustee for the Glenayr Trust No 2 pursuant to Graeme's rights of subrogation of Bruce's debt.
In his opening submissions counsel for Graeme, Mr Dillon, said that the claim in debt arose in two ways. Graeme lent the money or alternatively paid the money for the benefit of and at the request of Bruce. Mr Dillon says that there is an assumption of law that where somebody provides money to another person for their use, at the request or with their acquiescence, that person is fixed with an obligation to repay the funds on demand.
Senior counsel for Bruce, Mr Cuerden, submitted that Graeme has not pleaded a case based on a loan and that Graeme's pleaded case is confined to a claim to be subrogated to the rights of Rabobank. It is unnecessary to consider that matter. Insofar as Graeme's claim in debt or in subrogation is based on the facts pleaded in his statement of claim, Graeme has not established those facts. I find that Doug Sheppard or other officers of Rabobank did not tell Graeme that Bruce's debts guaranteed by Graeme had to be reduced and it would be best if Graeme sold the land otherwise Rabobank would sell it. I find that the real estate agent, Mr McTaggart, did not tell Graeme that Bruce's financial position was such that Rabobank would sell Graeme's land from under him if he did not agree to sell it to reduce Bruce's debts with Rabobank.
Graeme did not loan the net proceeds of sale to Bruce and had no expectation of repayment by Bruce. Graeme said in evidence that he sold the land to pay down part of Bruce's debt because Bruce was his son. Graeme went on to give evidence which suggested there was some discussion about Bruce making repayment. I do not accept that evidence.
I accept that Graeme paid the proceeds of the sale of the land to Rabobank at the request of and for the benefit of Bruce. It was a gift, an advance on his inheritance. Graeme sold the land for the express purpose of discharging part of Bruce's debt because of Bruce's difficult financial circumstances. Graeme agreed in cross‑examination that he did so because Bruce is his son.

Furthermore, the subrogation claim cannot succeed. Senior counsel for Bruce, Mr Cuerden, submitted, and I accept that a surety's right to be subrogated to the rights of the creditor arises only once the debt has been paid in full. Subrogation does not lie where the debt has not been paid in full because the surety cannot compete against the creditor for payment of the unpaid balance of the debt. The net proceeds of sale were paid to repay part of the debt. The debt was not repaid in full.
Further, it was an express term of each guarantee given by Graeme that he must not, without Rabobank's prior written consent, claim the benefit of any right, power, remedy or security held by Rabobank until the Guaranteed Money and all other money owing under the guarantee has been paid in full to Rabobank. It was not.
No restitutionary right arises before the debt is discharged in full. Any such alleged right is inconsistent with the established principles of subrogation and the express terms of the guarantees given by Graeme.
In any event, if the 2005 facilities were extinguished and replaced, that occurred with Graeme's express agreement. There are no rights left to which he might be subrogated.
Graeme's claim must be dismissed.