Evans v Braddock - [2015] NSWSC 249

Supreme Court

New South Wales

Medium Neutral Citation: Evans v Braddock [2015] NSWSC 249
Hearing dates: 9,10,11 and 12 February 2015
Decision date: 19 March 2015
Jurisdiction: Equity Division
Before: Hallen J
Decision:
Order that the further amended Statement of Claim is dismissed.
Orders that the argument on the issue of costs be stood over to a suitable date unless the parties are able to reach agreement on how the costs of the proceedings are to be borne.
Catchwords:
EQUITY - Equitable estoppel by encouragement alleged - Family relationship - Assertion that conversation with father, in about 1983, that Plaintiff son would effectively receive, by Will, one third of certain identified real property amounted to an irrevocable promise or assurance - Where that real property held jointly by father and mother - Alleged silence by mother who was present at time of alleged promise or assurance - Whether court satisfied that any promise or assurance to give property to son - Whether promise or assurance given by mother by silence - Whether son or company acted to his or its detriment in reasonable reliance on alleged promise or assurance - Whether detriment proved - Whether father and/or mother knew of alleged reliance by son or company - Whether any unconscionable conduct by father and/or mother - Revocability of alleged promise or assurance - Subsequent conduct of parties - Onus of proof on son to prove reliance - Son’s alleged reliance upon promise or assurance by both father and mother inconsistent with his and the company’s conduct, years later, and before death of father and mother - Relevance of such conduct - Whether estate of mother bound to give effect to alleged irrevocable promise or assurance

TRUSTS - Common intention constructive trust - Whether elements necessary to be established proved

EVIDENCE - Principles requiring caution when relying on uncorroborated statements said to have been made by deceased person - Father and mother both deceased prior to commencement of proceedings - Relevance of contemporaneous or near contemporaneous documents - Credibility of son’s evidence when events alleged to have taken place many years before claim made - Relevance of conduct of parents inconsistent with alleged promise or assurance that son and company relied upon

FIDUCIARY DUTIES - alleged breach of director’s duties - whether the transfer of real property from company to Governing Director and wife, who was a director, made in breach of director’s duties - Memorandum of Association provided that assets could be used to benefit the company’s employees and their families - Wide powers of Governing Director - Sale of real estate by company to parents - Whether to knowledge of son, also a director of the company
LIMITATION PERIOD - whether 6-year limitation period prescribed by the Limitation Act 1969 (NSW) and the Corporations Act 2001 (Cth) applies by analogy to equitable claim - Unnecessary to decide
Legislation Cited: Companies (New South Wales) Code (1981)
Corporations Act 1989 (Cth)
Corporations Act 2001(Cth)
Fair Trading Act 1987 (NSW)
Limitation Act 1969 (NSW)
Real Property Act 1900 (NSW)
Succession Act 2006 (NSW)
Trade Practices Act 1974 (Cth)
Cases Cited: Accurate Financial Consultants Pty Ltd v Koko Black Pty Ltd [2008] VSCA 86; (2008) 66 ACSR 325
Armagas Ltd v Mundogas S.A. (The Ocean Frost) [1985] 1 Lloyd’s Rep 1
Ashton v Pratt [2015] NSWCA 12
Australasian Annuities Pty Ltd (in liq) v Rowley Super Fund Pty Ltd [2015] VSCA 9
Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [2014] HCA 14; (2014) 88 ALJR 552
Australian Securities and Investments Commission v Maxwell [2006] NSWSC 1052; (2006) 59 ACSR 373
Auzhair Supplies Pty Ltd v Gerace [2014] HCASL 231
Barnes v Alderton [2008] NSWSC 107; (2008) 13 BPR 25,281
Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200
Baumgartner v Baumgartner (1987) 164 CLR 137
Bristol and West Building Society v Mothew [1998] Ch 1
Commonwealth of Australia v Verwayen (1990) 170 CLR 394
Como v Helmers [2011] WASC 179
Day v Couch [2000] NSWSC 230
Delaforce v Simpson-Cook [2010] NSWCA 84; (2010) 78 NSWLR 483
Dillwyn v Llewelyn (1862) 4 De GF & J 517; (1862) 45 ER 1285
Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599
EK Nominees Pty Ltd v Woolworths Limited [2006] NSWSC 1172
Equititrust Ltd v Franks [2009] NSWCA 128; (2009) 258 ALR 388
Evans v Evans [2011] NSWCA 92
Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785
Faraday v Rappaport [2007] NSWSC 34
Flinn v Flinn [1999] VSCA 109; [1999] 3 VR 712
Fisher v Brooker [2009] 1 WLR 1764; [2009] UKHL 41
Foran v Wight (1989) 168 CLR 385
Galaxidis v Galaxidis [2004] NSWCA 111
Gerace v Auzhair Supplies Pty Ltd (in liq) [2014] NSWCA 181; (2014) 310 ALR 85
Gillett v Holt [2001] Ch 210
Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101
Gorton v Commissioner of Taxation (Cth) (1965) 113 CLR 604
Grant v Edwards [1986] Ch 638
Grundt v Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641
Hammond v JP Morgan Trust Australia Ltd [2012] NSWCA 295; (2012) 16 BPR 30,901
Harbour Port Consulting v NSW Maritime [2011] NSWSC 813
Hospital Products Ltd v United State Surgical Corporation (1984) 156 CLR 41
Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160
In re Cawley & Co (1889) 42 Ch D 209
In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547
Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben’s of Australia) (Federal Court of Australia, Tamberlin J, 29 June 1995, unrep)
Milling v Hardie [2014] NSWCA 163
Muschinski v Dodds (1985) 160 CLR 583
Olsson v Dyson (1969) 120 CLR 365
Onassis v Vergottis [1968] 2 Lloyd’s Rep 403; [1968] UKHL J1031-2
Pilmer v The Duke Group Ltd (in liq) [2001] HCA 31; (2001) 207 CLR 168
Pitt v Holt; Futter v Futter [2013] 2 AC 108; [2013] UKSC 26
Plunkett v Bull (1915) 19 CLR 544
Ramsden v Dyson (1866) LR 1 HL 129
Rasmussen v Rasmussen (1995) VR 613
Re Hodgson (1885) 31 Ch D 177
Richard Brady Franks Ltd v Price (1937) 58 CLR 112
Riches v Hogben [1985] 2 Qd R 292
Robertson v Federal Commissioner of Taxation (1952) 86 CLR 463
Schaeffer v Schaeffer (1994) 36 NSWLR 315
Sidhu v Van Dyke [2014] HCA 19; (2014) 251 CLR 505
Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466
Sledmore v Dalby (1996) 72 P & CR 196 CA
Sullivan v Sullivan [2006] NSWCA 312; (2006) 13 BPR 24,755
Svenson v Payne (1945) 71 CLR 531
Thompson v Palmer (1933) 49 CLR 507
Thorner v Major [2009] 1 WLR 776; [2009] UKHL 18
Tory v Tory [2007] NSWSC 1078
Walton v Walton (Court of Appeal of England and Wales, Hoffmann LJ, 14 April 1994, unrep)
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56
Watson v Foxman (1995) 49 NSWLR 315
Webb v Ryan [2012] VSC 377
Weeks v Hrubala [2008] NSWSC 162
Weinstock v Beck [2011] NSWCA 228; (2011) 252 FLR 462
West v Mead [2003] NSWSC 161; (2003) 13 BPR 24,431
Whitehouse v Carlton Hotel Pty Ltd (1987) 162 CLR 285
Willmott v Barber (1880) 15 Ch D 96
Texts Cited: P McClellan, “Who Is Telling the Truth? Psychology, Common Sense and the Law” (2006) 80 ALJ 655
Category: Principal judgment
Parties: Timothy Fitzgerald Evans (first Plaintiff)
Mount Mill Pty Limited (second Plaintiff)
Margaret Gael Braddock (first Defendant)
Sheelagh Kerryn Evans (second Defendant)
Philip King Hawley (third Defendant)
Representation:
Counsel:
Mr M S Willmott SC; Mr D Liebhold (Plaintiffs)
Mr R R Stitt QC; Mr G E Underwood; Mr D W Robertson (Defendants)
Solicitors:
Conomos & Spinak Lawyers (Plaintiffs)
Michael Rogers and Co (Defendants)

File Number(s): 2012/260707

Judgment

Introduction

HIS HONOUR: This is a sad, and unfortunate, dispute involving, principally, the family of Robert Fitzgerald Evans (“Robert”) and his wife, Sheelagh Macquarie Evans (“Sheelagh”), both of whom are now deceased. The first Plaintiff is their son, Timothy Fitzgerald Evans (“Timothy”); the first Defendant is their daughter, Margaret Gael Braddock (“Gae”); and the second Defendant is their only other child, Sheelagh Kerryn Evans (“Kerry”). (Throughout these reasons, I shall refer to the family members, where necessary, after introduction, by the name he, or she, is known within the family. This is for convenience and to avoid confusion, and I hope it will not be thought discourteous.) The other parties involved in the proceedings are the second Plaintiff, Mount Mill Pty Limited (to which I shall refer as “Mount Mill”), a company incorporated in 1957 by Robert, and the third Defendant, Philip King Hawley (“Philip”), who is a solicitor who had acted for Sheelagh from about 2004 until her death and who is one of the executors of Sheelagh’s Will.
Timothy, first, filed a Summons on 21 August 2012, in which he sought a family provision order under the Succession Act 2006 (NSW) out of the estate and/or notional estate of Sheelagh and a declaration that the proceeds of sale of a property located at Eastbank Avenue, Collaroy (“the Collaroy property”) were, and any asset into which those proceeds of sale had been transmitted was, notional estate of Sheelagh.
Initially, the matter came before the Registrar on a number of occasions. On 9 October 2012, the Registrar made an order, by consent, that Timothy file and serve a Statement of Claim. Timothy filed a Statement of Claim on 18 January 2013 (outside the time prescribed by the Registrar’s order). In this document, he was the only Plaintiff named. He filed an amended Statement of Claim on 12 February 2014 in which Mount Mill was joined as the second Plaintiff, and a further amended Statement of Claim on 18 August 2014, upon which he, and Mount Mill, each now relies.
The Defendants filed one composite Defence to the Statement of Claim on 13 February 2013; a Defence to the amended Statement of Claim on 19 March 2014; an amended Defence to the amended Statement of Claim on 20 May 2014; and a Defence to the further amended Statement of Claim on 22 September 2014. It is the Defence to the further amended Statement of Claim upon which they now rely.
On 5 July 2013, when the matter was listed before me for directions, I noted that “although there is a claim for a family provision order, the thrust of the Plaintiff’s case is for a declaration of trust based on an estoppel”. In the events that occurred subsequently, Timothy did not proceed with his claim for a family provision order. He sought leave to discontinue that claim and that part of his case was dismissed on 7 March 2014.

The Relief Claimed by the Plaintiffs

In the further amended Statement of Claim, Timothy and Mount Mill articulated the relief sought in the following way:

“1.   A declaration that the defendants or some of them hold an amount equivalent to one-third of the net proceeds of sale of the Collaroy Property on a constructive trust for the first plaintiff and/or the second plaintiff.
2.   An order that the defendants or some of them pay to the second plaintiff an amount equivalent to one-third of the net proceeds of sale of the Collaroy property.
3.   In respect of [the] order referred to in paragraph 2, interest.
4.   In the alternative
(a) A declaration that the second plaintiff is entitled to an equitable charge over the estate of the deceased and/or the proceeds of sale of the Collaroy Property in such amount as is just having regard to the second plaintiff's contributions to the purchase, maintenance and expenses of the Collaroy property; and
(b) An order that the defendants or some of them pay to the second plaintiff a sum that is just allowance for the contributions made by the second plaintiff … to the purchase, maintenance and expenses of the Collaroy property and to the welfare of the deceased and Robert Evans.

5.   In the further alternative, an order that the defendants or some of them pay … equitable compensation to the first plaintiff and/or the second plaintiff.
6.   In respect of any order for equitable compensation, interest.
7.   Costs.
8.   Such further or other order as the Court sees fit.”

Counsel for the Plaintiffs, in summary, stated:

“The plaintiffs have based their several claims on two grounds: proprietary estoppel and common intention constructive trust. The proceeds of sale of the Collaroy property came into Gael’s and Kerry’s hands, as will be noted later, either in their personal capacity or in the capacity of trustees and subsequently executors. It is the plaintiffs’ contention that one third of those proceeds of sale (plus interest) is the minimum relief necessary to make good the detriment arising in the proprietary estoppel claim and this will be further discussed below. With regard to the common intention constructive trust claim, the plaintiffs’ contention is that the proceeds of sale are part of the joint endeavour that is relied on…”

In fact, there was a third basis of the claim, although, I think, by the conclusion of the case, that it may have been subsumed in the claims set out above. The third basis was that the transfer of the Collaroy property, in 1981, from Mount Mill's ownership to the joint ownership of Robert and Sheelagh was made in breach of the duties that each owed, as directors, to Mount Mill.

The Defences Relied upon

In summary, the Defendants denied that Timothy and Mount Mill were entitled to any relief, with the result, they submitted, that the further amended Statement of Claim should be dismissed. They submitted that the elements to be proved for the claims of proprietary estoppel and common intention constructive trust to succeed were not established. They pleaded, in addition, that even if the factual bases of the claims could be established, all of the claims for relief were time-barred. They relied upon the six year limitation period prescribed by the Limitation Act 1969 (NSW) and by s 1317K of the Corporations Act 2001 (Cth), which, they submitted, applies by analogy to equitable claims (Gerace v Auzhair Supplies Pty Ltd (in liq) [2014] NSWCA 181; (2014) 310 ALR 85, at [70]). They also pleaded that the doctrines of laches, acquiescence and prejudicial delay were applicable. Finally, they submitted that there had been no breach of director’s duties by either Robert or Sheelagh.
In broad terms, the Defendants relied upon the failure of Timothy, and of Mount Mill, to take any steps to challenge the transfer of the Collaroy property to Robert and Sheelagh, as joint tenants, until after the death of Sheelagh. They asserted that, even on the Plaintiffs’ case, Timothy knew of the transfer of the Collaroy property from 1983, but he did nothing until he brought these proceedings.
Although each party sought an order for costs in the pleadings, which claim I would normally deal with in these reasons, they requested, at the conclusion of the oral submissions that I not deal with the issue of costs. Each declared that submissions may need to be made to determine the nature of the costs, and how the burden of those costs should be borne. I am prepared to abide the request and I shall make directions to enable any costs issue to be determined after the parties have had an opportunity to consider these reasons.

Background Facts

I begin by setting out some of the background. The facts which lie behind the issues require some elaboration. Some of the events I shall describe date back to the 1950’s and 1960’s, others to the 1980’s and 1990’s. I shall start by identifying the facts that are uncontroversial. I have taken these from admissions made in the pleadings relied upon at the hearing, from the affidavits, or from the submissions, where it is clear that there is no dispute about them.
Robert died on 6 September 2001. He was then aged almost 94 years, having been born in October 1907.
Sheelagh died on 24 August 2011. She was then aged 97 years, having been born in July 1914.
Robert and Sheelagh married in about 1935. Timothy was born in April 1936 and is now almost 79 years of age; Gae was born in July 1940 and is now 74 years of age; and Kerry was born in January 1947 and is now 68 years of age.
Robert left a duly executed Will made by him on 16 March 1994 and a codicil to that Will dated 13 August 2000. The executors named in that Will were Sheelagh, Timothy, Gae and Kerry. This court granted Probate in common form of that Will and codicil to those executors on 17 September 2002. (There were earlier testamentary instruments made by Robert upon which Timothy relies. I shall refer to parts of Robert’s last Will and codicil, and to parts of the earlier testamentary instruments, later in these reasons.)
In the Inventory of Property attached to the Probate document, there was included as property owned by Robert at the date of death, a “Loan to T F Evans $100,000” (Timothy) and a “Loan to Mt Mill - $90,000”. (The amount of $190,000 had, in fact, been loaned by Robert in about 1988. As will be read, Timothy borrowed $100,000 of the amount loaned to purchase Kerry’s shares.)
In the affidavit of executors filed in support of the Summons for the grant of Probate (part of Ex. TFF), the liabilities of Robert’s estate included $192,654, being a debt due to Mount Mill by Robert.
Timothy accepted that neither of the loans identified in the Inventory of Property as debts due to Robert at the date of death had been repaid by him or by Mount Mill. He also stated that Robert’s debt to Mount Mill, which had been identified in the affidavit of the executors, had not been repaid either.
(There was a question raised during submissions about whether the loans were not repayable after six years from the date of the loan, since each appeared to have been a loan repayable on demand. It was submitted that a cause of action for its repayment would have arisen at the time of the advance, not when demand was made for it. The relevant limitation period for the commencement of a claim for the repayment of the loan is six years in accordance with s 14 of the Limitation Act. If more than six years had passed, the debtor would be entitled to plead s 14(1)(a) of the Limitation Act as a defence to the claim. Such a defence would defeat the claim for recovery of moneys lent: Faraday v Rappaport [2007] NSWSC 34, at [102]. Whether the parties to the loan transactions, either expressly or by necessary implication, demonstrated an intention that a demand was required in order to create a liability to repay, was not investigated.
The question identified proved somewhat of a distraction, as senior counsel for each of the parties, ultimately, seemed to accept, and, in any event, I am satisfied, that what the executors of Robert’s Will, Timothy, and Mount Mill, probably agreed to, following Robert’s death, was to treat the loans as off-setting each other. The result was that no amount was to be paid to Mount Mill out of Robert’s estate, and no amount was to be paid, by either by Timothy or Mount Mill, to Robert’s estate.)
In the Inventory of Property, the Collaroy property was disclosed as property jointly held by Robert and Sheelagh (with a disclosed value of $550,000). Thus, it did not form part of Robert’s estate as it passed by survivorship to Sheelagh.
Sheelagh left a duly executed Will that she made on 14 April 2004 and a codicil that she made on 16 February 2011. This court granted Probate in common form of that Will and codicil to Kerry, Gae and Philip on 22 August 2012. (Timothy had been named as an executor in the Will but was removed as an executor in the codicil.) (I shall refer to parts of the last Will and codicil and to parts of an earlier Will made by Sheelagh later in these reasons.)
The gross value of Sheelagh’s estate was estimated to be $513,627. The Collaroy property was not disclosed in the Inventory of Property as part of Sheelagh’s estate at the date of death, as, a few months before, it had been sold by Sheelagh.

Robert had been a grazier. From about 1927, he had conducted a farming business on a property, comprising about 2,200 acres, known as “Coomber”, near Rylestone, in the Central Tablelands region of New South Wales. He had been given “Coomber” by his father. Sheelagh and he had lived there during their marriage, and Timothy, Kerry and Gae grew up there.
In 1956, after completing his schooling and then spending 18 months as a jackeroo, Timothy returned to “Coomber” to work with Robert. He continued to do so until Robert’s death and continues to do so.
At various times, after 1957, Mount Mill purchased other rural properties, namely “Glenmore” (778 acres) in 1960, “Johnson’s Block” (about 430 acres) in the early 1970’s, “Walsh’s Block” (about 192 acres), in 1976 and “Kildare” (528 acres), which adjoined “Glenmore” and “Walsh’s Block”, in 1990.
At, or about, the time Timothy started working on “Coomber”, he purchased land known as Ferndale North. Robert lent him the purchase price of £8,000, which he asserted he had repaid over about 9 years. In the early 1970s, Timothy also purchased a property known as “Mullholland’s Block” (about 400 acres).
All of the properties owned by Mount Mill, and by Timothy, were used as part of Mount Mill’s grazing operations. (Ferndale North was, for a short time, farmed by Timothy alone.) Timothy accepted that Mount Mill had paid £500 per year to him for the use of Ferndale North.
Mount Mill was incorporated on 30 May 1957. It is an Australian proprietary company limited by shares.
On 13 December 1957, Mount Mill resolved to adopt the current Articles of Association. Robert was appointed Governing Director, a position which he held until February 1997. The two other directors of Mount Mill, during that period, were Sheelagh and Timothy.
As was not uncommon at the time of Mount Mill’s incorporation, the express purpose of incorporating Mount Mill was to shield the property and farming assets from death and estate duties, payable on the death of the founder of the company, which, then, were levied on deceased estates by both the Commonwealth and the State Governments: Robertson v Federal Commissioner of Taxation (1952) 86 CLR 463; Gorton v Commissioner of Taxation (Cth) (1965) 113 CLR 604. Under such a scheme, “the founder (in this case, Robert) owned shares which gave him (or her) control of the company for life. The founder could pay salaries and dividends to himself, and others (in this case, Sheelagh and the three children), during his lifetime, at his discretion, but the rights attached to those shares lapsed on death and their value accrued to other shareholders”: Weinstock v Beck [2011] NSWCA 228; (2011) 252 FLR 462, per Handley AJA (with whom Giles JA agreed), at [106]. Also see, Schaeffer v Schaeffer (1994) 36 NSWLR 315, per Handley JA, at 319 - 320.
Mount Mill’s objects are set out in Article 3 of the Memorandum of Association dated 30 May 1957. The objects include:

"To sell lease surrender exchange or otherwise dispose of any real property or grant rights easements or options of purchase thereover and to sell let on lease or hire exchange or otherwise dispose of any personal property or any interest therein belonging to the Company on such terms as may be determined" (Art 3(5));
"To advance money with or without security …" (Art 3(10));
"To provide for the welfare of persons in the employment of the Company, or formerly engaged in any business acquired by the Company, and the wives, widows, and families of such persons, by grants of money, pensions, or other payments …" (Art 3(17));
"To sell, improve, manage, develop, exchange, lease, mortgage, dispose of, turn to account, or otherwise deal with all or any part of the property, rights and effects for the time being of or belonging to the company" (Art 3(26));
"To distribute in specie or otherwise as may be resolved, any assets of the Company among its members, and particularly the shares, debentures, or other securities of any other company formed to take over the whole or any part of the assets and liabilities of this Company" (Art 3(29)).

Timothy acknowledged, in cross-examination, that he knew that Robert, as the Governing Director, “had the power and control to do what he liked with his company and its assets”: T48.46 - T48.48. In fact, Robert was able to "control the business and management of the Company and [had] authority to exercise all the powers authorities and discretions …expressed to be vested in the Board or the Directors generally or individually and all the other Directors of the Company for the time being, if any, shall be under his control and bound to conform to his directions in regard to the Company's business": Article 51(a) of Mount Mill’s Articles of Association.
Mount Mill had different classes of shares. Until February 1997, Robert held 6 of the issued A class ordinary shares, the only class of shares to which were attached voting rights. He also held 100 F class shares. Timothy held one A class ordinary share, 10,500 B class shares and (in 1957) 9,500 C class shares. Initially, Gae was issued with 500 C class shares (which Timothy later acquired), Kerry was issued with 500 D class shares (which Timothy also later acquired) and Sheelagh was issued with 100 E class shares. Pursuant to Mount Mill's Articles, the B, C, D, E and F class shares had no voting rights, but the holders were eligible to receive dividends at the discretion of the directors and were entitled to a share of the assets on a winding up.
Timothy accepted that “when the shares [in Mount Mill] were issued to [him], it was simply a round-robin of cheques” (T48.50 - T49.02) and that in December 1962, he did not have a lot of money to enable him to pay for those shares.
Between about 1960 and 2000, Mount Mill's income, at least in part, was used to make payments to, or for the benefit of, each member of the family, for personal expenses, such as for living expenses, for the cost of cars, or for housing renovations. There are multiple examples of advances made to one, or other, of the family members, including to Timothy, in the evidence.
In 1960, Timothy married Helen. They moved into a house that had been built for them on “Coomber”. They had three children, Stephen, Anthony and Penelope. Only Stephen has played a part in these proceedings. He started working on the farm in the early 1980’s. Anthony, commenced working on the farm in about 1985.
In 1993, Timothy purchased Kerry’s 500 D class shares for $100,000, which amount he borrowed. (As previously mentioned, this is the amount shown as “Loan to T F Evans” in the Inventory of Property which formed part of the Probate of Robert’s Will.)
Gae states that she transferred her shares to Timothy between 1967 and 1976. She says that she received cheques, as payment for those shares, but is unable to recall the amount she received or whether they were drawn on Mount Mill, or on Timothy’s, bank account. Timothy states that the amount he paid, by instalments, for Gae’s shares, was $3,380.
In February 1997, Timothy was appointed the Governing Director and Stephen, was also appointed a director. Robert and Sheelagh each then ceased to be a director. By a resolution dated 26 February 1997, Robert gifted his 6 A class ordinary shares and 100 F class shares, and Sheelagh gifted her 100 E class shares, to Stephen in trust for Timothy. Timothy then became the sole beneficial shareholder in Mount Mill, with all the issued shares in the company either held by him absolutely, or held by Stephen on trust for him.
By Conveyance dated 25 November 1960 (a copy of which is Ex. TFC), Mount Mill purchased, from Robert, the whole of “Coomber” for £53,650. The purchase price was paid from proceeds lent by Robert to Mount Mill. (Although the Conveyance refers only to the land, the parties agreed that Mount Mill also purchased the livestock, machinery and other plant and equipment used to conduct the farming operations.) There is no evidence that Robert was repaid this amount by Mount Mill.
Mount Mill remains the registered proprietor of the land comprising “Coomber”. It is the entity through which the farming business is conducted.
In April 1965, Mount Mill purchased the Collaroy property for £13,000 (Ex. TFE). Mount Mill was registered as proprietor of an estate in fee simple in that land under the Real Property Act 1900 (NSW). The Collaroy property was purchased as a holiday house for the use, predominantly by Robert and Sheelagh, but also for use by Timothy, Gae and Kerry. Various family members continued to use it as a holiday house until about 2002. Timothy acknowledged that he and his family had the use of the Collaroy property “for short periods”.
By a Contract for Sale dated 25 May 1981, Robert and Sheelagh agreed to purchase, and Mount Mill agreed to sell, the Collaroy property for $165,000. The Contract was executed under the seal of Mount Mill. Subsequently, the Transfer, which was dated 19 June 1981, was executed by Mount Mill, as transferor, under its common seal, attested by Robert, as Governing Director, and, by Robert and Sheelagh as the transferees.
Although the Transfer acknowledged receipt of the agreed consideration of $165,000, there was a dispute about whether, in fact, Mount Mill did receive the consideration disclosed in the Transfer. It will be necessary to return to the circumstances surrounding the purchase and sale of the Collaroy property later in these reasons.
Mount Mill paid some of the annual outgoings, including council and water rates, insurance, utilities, general maintenance and, from time to time, the costs of renovations. (Some of the costs associated with the Collaroy property were also paid by Robert and Sheelagh personally.) There is a summary of amounts evidencing the payments made from Mount Mill’s bank accounts in respect of the Collaroy property for the period between 26 February 1965 and 30 July 1990 (Ex. TFA(7)). The total of the amounts identified in this summary, after May 1981 (the date of transfer to Robert and Sheelagh), according to my addition, is slightly more than $22,000.
On Robert’s death, Sheelagh, by transmission, became the sole registered proprietor of the Collaroy property.
In 2002, Sheelagh moved from “Coomber” to a house, purchased in her name, in Mudgee. The purchase of that property was financed by a loan. Thereafter, the Collaroy property was rented and Sheelagh applied the rental income to repay the loan.
In 2011, Sheelagh decided to sell the Collaroy property. The Transfer, which was dated 10 March 2011, was signed by Sheelagh, as transferor, and her signature thereon was attested by Philip. The Transfer was registered on about 17 March 2011. The gross sale price of the Collaroy property was $1,550,000.
Shortly after the completion of the sale of the Collaroy property, pursuant to a direction to pay dated 16 February 2011, signed by Sheelagh, Kerry and Gae received, equally, the net proceeds of sale of the Collaroy property. Each received $709,679. Neither gave any consideration for the receipt of those proceeds of sale. Each has spent some part of the amount received.
(Despite a paragraph in the Defence to the further amended Statement of Claim, to the effect that Gae and Kerry “each spent the proceeds from the sale of the Collaroy property” and that each holds “none of the sale proceeds on trust”, there is no issue that should an order for payment be made to Robert, or to Mount Mill, there will be sufficient funds to satisfy any order, and that Gae and Kerry will do so, from the balance of the proceeds of sale that each has received (T163.36 - T163.48; T181.15 - T181.16).
Timothy says that it was not until after Sheelagh’s death, and when his solicitor carried out a title search on 16 August 2012, that he found out that the Collaroy property had been sold.

The Wills of Robert and Sheelagh

There was really no dispute about the contents of the various Wills that Robert and Sheelagh had each made, a copy of which was in evidence.
Senior counsel submitted that the testamentary documents to which reference has been, and will be, made, were “not inconsistent”, and that the Plaintiffs “certainly draw some comfort from the nature of those testamentary dispositions to the extent they're not inconsistent with the case put forward by the plaintiff. We can draw some assistance by way of corroboration”: T158.38 - T158.41. It is only necessary, therefore, to refer in detail, to the part of the Wills that provide for the devise of the Collaroy property.
By a Will dated 1 April 1981, Robert did not specifically refer to the Collaroy property (as the Will predated the purchase of the property). After bequeathing all of his shares in Mount Mill to Timothy (upon a certain condition) and leaving a pecuniary legacy of $1,000 to each of his grandchildren alive at the time of his death, he left the rest and residue of his estate, after the payment of debts, funeral and testamentary expenses, to Sheelagh.
There is a codicil to a Will that Robert made on 20 February 1982, but a copy of that Will was not in evidence.
By a Will dated 21 October 1988, Robert purported to devise the Collaroy property to Timothy, Gae and Kerry as joint tenants. (I have used “purported” because it will be remembered that the Collaroy property had been purchased by Robert and Sheelagh as joint tenants.)
By a Will dated 8 June 1990, Robert purported to devise the Collaroy property to Timothy, Gae and Kerry as joint tenants.
By his last Will, dated 16 March 1994, Robert purported to devise the Collaroy property, together with the furniture and furnishings at the property, solely to Kerry. However, by the codicil dated 13 August 2000, Robert revoked the purported devise of the Collaroy property and furniture and furnishings to Kerry, and purportedly made a devise of that property, together with the furniture and furnishings at the property, “unto my children equally”.
By a Will dated 28 July 2000, Sheelagh devised “any real estate and contents I may own at the date of my death to my three said children in equal shares as tenants in common”.
By her last Will, Sheelagh devised her real property at Mudgee, and the Collaroy property as well, to Kerry and Gae as tenants in common in equal shares. The Will stated in Clause 7:

“I DECLARE that I have made the bequests as set out in Clause 5 of this Will as I believe that my son, the said TIMOTHY FITZGERALD EVANS, has been adequately provided for with respect to his absolute ownership of the “COOMBER” Property and the shares of Mt Mill Pty Limited during my lifetime and because there is particular reference in my late husband’s Will wherein he Bequeaths the property at Collaroy, NSW, 2097, to my said daughter SHEELAGH KERRYN EVANS should I have predeceased my Husband and that my said daughter’s welfare shall in all ways possible be looked after by my said son as long as she shall remain unmarried. I now wish to provide for my said daughter by the particular bequest in Clause 5 (b) of this Will.”

Introduction to Additional Findings of Facts

Having set out the facts which were not seemingly the subject of any dispute, I turn now to other background facts which it is necessary to determine because they are not agreed. Unravelling these facts will provide the answers to the present case.
It is necessary to come to a concluded view about the circumstances surrounding the purchase of the Collaroy property, and then its sale, by Mount Mill, to Robert and Sheelagh since these events are of some importance. It will be necessary to determine the facts cautiously because the events occurred so long ago.
Similarly, it will be necessary to carefully consider the evidence of the conversations upon which the substance of the Plaintiffs’ case is based, it being accepted by counsel for the Plaintiffs that there is no contemporaneous document in evidence, and no other direct corroboration, which supports the making of any promise or assurance as is relied upon by the Plaintiffs.
It will also be necessary for the Court to determine what conduct of the Plaintiffs, if any, was in reliance on any alleged promise or assurance made to Timothy, and whether any detriment was suffered by either of the Plaintiffs.
Also, because the conversations about the Collaroy property are said to have been with Robert and/or Sheelagh, it is necessary to bear in mind the need for careful scrutiny to which that evidence should be subjected since those conversations are said to have been with a person who is deceased at the date of the hearing: Plunkett v Bull (1915) 19 CLR 544, per Isaacs J at 548 - 549. Neither is available, at the hearing, to admit, or directly deny, Timothy’s specific allegations.
McLelland CJ in Eq cited Plunkett v Bull in Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785, at 789, in which case, his Honour wrote that "in a claim based on communications with a deceased person, the court will treat uncorroborated evidence of such communications with considerable caution". Whilst there is no absolute legal requirement for it, the court should look for some corroboration: Re Hodgson (1885) 31 Ch D 177, at 183; Day v Couch [2000] NSWSC 230, at [9]; Weeks v Hrubala [2008] NSWSC 162, at [20]).
Whelan J in Webb v Ryan [2012] VSC 377, at [22], referred to the difficulties in assessing evidence, in such circumstances, stating:

“An important matter which may arise in these kinds of cases is the difficulty of assessing evidence concerning things allegedly said by a person who is dead. The court can never be certain it knows all the circumstances, and more often than not one may be sure that the court knows few of them. It is impossible to hear what the other party to the conversation, the deceased, says about it. There is a significant risk of reconstruction. There are dangers in relying on evidence of what may have been a casual observation made to a person who at the time had no reason to remember the exact words used. In the light of these concerns, a substantial burden is placed upon an applicant whose case relies upon such evidence. Such evidence must be very carefully examined.”

As was observed by McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315, at 318 - 319:

“Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances … Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.”

In that case, his Honour was talking of a cause of action founded on s 52 of the Trade Practices Act 1974 (Cth) or s 42 of the Fair Trading Act 1987 (NSW): see the discussion by McDougall J in Harbour Port Consulting v NSW Maritime [2011] NSWSC 813, at [10] - [18]. However, as McLelland CJ in Eq also pointed out, the views apply to all types of litigation.
I also remember what was said by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56, at [48]:

“When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2).”

The credibility of a witness and his, or her, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The “Ocean Frost”) [1985] 1 Lloyd’s Rep 1, per Robert Goff LJ, at 57. Also see, In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547, per Black J, at [7].
A court, in cases involving events which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200, per Jagot J, at [1247]. Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160, per Kenneth Martin J, at [157].
In this regard, I have also found useful what Lord Pearce wrote, in his dissenting speech in Onassis v Vergottis [1968] 2 Lloyd’s Rep 403, at 431:

“Credibility involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness, and motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process and in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”

The circumstances of this case, make what was written by Tamberlin J in Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben’s of Australia) (Federal Court of Australia, Tamberlin J, 29 June 1995, unrep), at 122 - 123 (in a passage cited with approval by the High Court when it upheld his Honour’s decision: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599, at [15]) appropriate to remember:

“[Given the lapse of time] between the events and conversations raised in evidence and the hearing of the evidence before me, the only safe course is to place primary emphasis on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence. In circumstances where the events took place so long ago, it must be an exceptional witness whose undocumented testimony can be unreservedly relied on. The witnesses in this case unfortunately did not come within that exceptional class. The discussions referred to in evidence were capable of bearing quite opposed meanings depending on subtle differences of nuance and emphasis, and a proper appreciation of the significance of those matters must necessarily be considerably diminished over such a long period of time.”

Finally, I should mention an article by the former the Chief Judge at Common Law, P McClellan entitled “Who Is Telling the Truth? Psychology, Common Sense and the Law” (2006) 80 ALJ 655, in which he wrote, at 665, quoting a passage from the “Guidelines Relating to Recovered Memories” (2000) of the Australian Psychological Society:

“Memory is a constructive and reconstructive process. What is remembered about an event is shaped by how that event was experienced, by conditions prevailing during attempts to remember, and by events occurring between the experience and the attempted remembering. Memories can be altered, deleted and created by events that occur during and after the time of encoding, during the period of storage, and during any attempts at retrieval.”

In relation to the events surrounding the purchase, and then the transfer of the Collaroy property, there are some contemporaneous, or near contemporaneous, documents available. The documents were in evidence and were relied upon by one party or the other.
In this case, there is no sound basis for refusing to accept, at face value, the contents of the contemporaneous, or near contemporaneous documents, relied upon, to which documents I now shall turn. The parties proceeded upon the basis that the documents were genuine and that they accurately reflected the steps actually taken or the events that had occurred. I shall also do so. (Unless otherwise recorded, a copy of the documents formed part of the affidavit evidence.) I shall now turn to these documents.

Additional Findings of Fact

In relation to the purchase of the Collaroy property, a journal entry, apparently in Robert’s handwriting, regarding cheques drawn, contains a notation, dated 2 April 1965, which states “Mt Mill Ltd - Loan to help buy Collaroy house - £9,000”. There was no evidence that Robert was repaid.
At the hearing, Timothy tendered three original cheque butts for cheques drawn on the bank account of Mount Mill (Ex. TFE), each of which is in Robert’s handwriting. The first in time, dated 1 March 1965, shows the amount £1,267, and bears the notation “Dalziel & Vivers Pty Ltd Deposit on [Collaroy]”. The second, dated 6 April 1965, shows the amount £11,746/7/3, and bears the notation “Cutler Hughes Harris & Garwin [Solicitors], Balance on Collaroy house (£11,700) and rates (£46/7/3)”. The third, dated 26 April 1965, shows the amount £89/18/5, and bears the notation “Cutler Hughes Harris & Garwin Solicitors acting on [Collaroy] purchase”.
The first document relevant to the events surrounding the Transfer of the Collaroy property to Robert and Sheelagh is described as an “Aid Memoir” (sic). It is a typewritten document, which appears to be a copy of a document, created some months earlier (23 April 1981), with typewritten alterations which, I infer, were added on, or about, 2 June 1981. That document, as amended, which appears to have been created by Ralph Larkins, Solicitor, is in the following form (after amendment):

“AID MEMOIR (sic) FOR R.F. AND S.M. EVANS June 2nd, 1981.
1.   Mount Mill Pty. Limited makes an interest free loan to Mr Evans of an amount of money to cover -
2.   Loan should be interest free.
3.   Prior to 30/6/1981 Company should resolve to forgive the loan.
4.   The exact amount of loan will be determined when valuation of property is to hand and Sale and Transfer is able to proceed.
5.   Loan can be effected by cross cheques i.e. Company draws cheque in favour of R.F. Evans by way of loan for say (on above figures) $170,000.00 and he pays the same to credit of his Bank Account and at the same time he draws a cheque in favour of Mount Mill Pty. Limited for say $160,000.00 $165,000.00 and he pays that to credit of account of Mount Mill Pty. Limited for and in satisfaction of purchase price of property by Mr. And Mrs. Evans.
6.   The balance of loan of namely $4,000.00 $5,000.00 will be retained by Mr. Evans to cover expenses as above.
7.   Adjustment of Rates Municipal Water and Land Tax if any can be left in abeyance.
8.   Mr. and Mrs. Evans acknowledge that Ralph Larkins as solicitor acting for both Seller and Buyer will not in any way investigate the Title to the property being sold and purchased.
On basis that purchase price now   $165,000
and expenses now          4,165
Total:            $169,165

but amount of loan (should not be $165,000) but subject to discussion with Bob Hunter should be either $170,000 or $169,500.”

(I should mention that in 1980 Robert James Hunter (referred to as “Bob Hunter”) is described as the “Principal Accounting Officer” in the firm of Chartered Accountants who prepared the financial records of Mount Mill and in 1981 he is described as the Secretary of Mount Mill in 1981 (Ex. TFL).)
The next document is a copy typewritten letter, dated 4 June 1981, from Mr Larkins to Robert. It is in the following terms:

“I confirm my telephone call to you the other evening advising that valuation of property is $165,000.
I enclose herewith copy of valuation for your information.
I also enclose herewith a further copy of Aid Memoir (sic) duly amended in red by way of up dating (sic) having regard to change in purchase price, variation of stamp duty and valuation fee.
Subject to my conference with Bob Hunter which I hope will be to-morrow morning, Friday, June 5, I draw your attention to the undermentioned on the enclosed Aid Memoir (sic) as updated by me in red -
1. In relation to paragraph 3, whether this date or 30/6/82 might be a more appropriate date for forgiveness of loan from company?
2. I will advise you of Bob’s comments on my note at end of Aid Memoir (sic) as to which of the three amounts set out therein would be the appropriate loan figure from the company to you.
I shall be in touch with you further, probably by phone and after you have had the benefit of reading this letter.”

The next document is a copy handwritten letter, dated 5 June 1981, from Mr Larkins to Robert. It is in the following terms:

“Since writing you yesterday the 4th I confirm that I conferred with Bob Hunter this morning. The result of our meeting was:
(1)   He advised that the loan from the Company should be $170,000.
(2)   Forgiveness by the Company of your debt by way of Loan should not occur in the year ending 30.6.81. (indecent haste) but suggested a Board Meeting in his office with both you and Tim (say January-February-March 1982 (“when your [sic] down for the cricket”) at which meeting the Company would resolve to forgive the debt.
(3)   Contract of Sale Mount Mill Pty Ltd to you and Sheelagh of … Collaroy for the sum of $165,000.00 was executed under the Common Seal of the Company as will the Transfer. The Contract bears date the 25th May 81 being date of Valuation. The Transfer will be dated the date you in fact pay the Company $165,000 in accordance with the procedure set forth in the “Aid Memoir” (sic).
Now Robert after you receive the cheque from Mount Mill Pty Limited for $170,000 and have paid back loan $165,000 you will have credit in your account of $5,000.00 out of this sum of $5,000. Please, at your convenience, ask your Bank to arrange a Telegraphic Transfer for the sum of $4165.00 for credit a/c “Ralph Larkins Trust a/c – no. xxxxx – Bank of NSW. Spit Junction NSW” This amount is detailed in Aid Memoir (sic).
The balance to your credit out of the deal of $835 should, after due deliberations be spent wisely but not returned to the Company.
Please also let me know the date when you paid the Company $165,000.00 as that will be the date of Transfer.
Please forgive me if my instructions to you appear pedantic but such deals can be confusing. I am certain the Bank manager will assist.”

The next document is a copy cheque butt, (No. 591580), bearing date 19 June 1981, which includes the notation “R F Evans Loan $170,000.00”. It may be inferred, from a subsequent document, that the cheque was drawn on Mount Mill’s bank account.
The next document is a copy of a receipt, dated 22 June 1981, which confirms the receipt, from Robert, into Mr Larkins’ Trust account, of an amount of $4,165 “on account of Stamp Duty, fees and costs you from Mount Mill Pty Ltd – purchase Collaroy property”. (A copy of the Memorandum of Costs from Mr Larkins states how the amount of $4,165 was disbursed.)
The next document appears to be a copy of the front cover of a bank book, with a notation in Robert’s handwriting, which states:

“Mount Mill Pty Ltd
23/12/80 to 25/6/81
19/6/81
Cheque 580
Showing loan to me
$170,000 for Collaroy House”

The next document (Ex. D4) is the Mount Mill “Balance Sheet as at 30th June 1981”, which shows, under the heading “Sundry Debtors” “R F Evans $172,193”. On the front cover, there is a notation, in Robert’s handwriting, stating “Showing my debt to Company after purchase of Collaroy House”.
The next document is a copy typewritten letter dated 3 July 1981 from Mr Larkins to Robert. It is in the following terms:

“Purchase of dwelling house … Collaroy – Mount Mill Pty. Limited to Robert Fitzgerald Evans and Sheelagh Macquarie Evans.
I am now writing to confirm that all has gone well with this purchase and that the present position is as follows namely -
1.   Purchase Price -
The property was purchased by you and Sheelagh under Contract of Sale dated May 25, 1981, for the sum of $165,000.00.
2.   The said sum of $165,000.00 was paid by you on behalf of yourself and Sheelagh to Mount Mill Pty. Limited on June 19, 1981.
3.   Stamp Duty -
The Commissioner of Stamp Duties has accepted the valuation of Ian Fox dated May 25, 1981, in the sum of $165,000.00 and the Contract for Sale was duly stamped on that figure.
4.   Transfer -
The transfer from the Company to you both of the property was dated June 19, 1981, which date is recorded as the settlement date and the date from which you both become the owners.
5.   Registration of Transfer -
This remains outstanding but the Transfer with the Title Deed will be lodged with the Registrar General some time next week. It will probably be four to eight weeks before registration to you both is effected and before I can pick up the Title Deed showing the Registered Proprietors as both of you as Joint Tenants.
6.   Neither Municipal Rates nor Water Rates nor Land Tax (if any) were adjusted as at date of settlement, June 19, 1981. This adjustment is a matter between yourself and the Company.
7.   Notices of Sale or Transfer -
Notices of Sale have been sent by me to the Warringah Shire Council, the Water Board and the Valuer General. After these Notices of Sale have been recorded by these three Statutory bodies all future Municipal Rates, Water Rates and Valuer General’s Notices will be sent to you both as owners.
When the Title Deed is uplifted by me I will then have available the following to hand to you both namely -
1.   Certificate of Title in your names.
2.   Copy of Memorandum and Articles of Association of Mount Mill Pty. Limited.
3.   Copies of Balance Sheet and Accounts as at June 30, 1980, to which is attached a summary of the present share capital of the Company.
Perhaps it is better that I retain these in my Safe Custody Box at the Bank of New South Wales, Spit Junction, until an appropriate time when you are down in Sydney.”

The next document is one described as “Reports, Balance Sheet and Supporting Accounts of Mount Mill for the financial year ending 30 June 1980” (Ex. D3). On the front cover of this document, in Robert’s handwriting, the following statements appear:

“Showing Collaroy house as Company asset, which is wrong. No company money went into the Collaroy house. In any case, the Company was mine and formed by me.”

A copy of the Balance Sheet of Mount Mill for the financial year ending 30 June 1996 disclosed Robert as a debtor to the company ($192,654.30). The Directors Report and the Statement by Directors was signed by Robert, Sheelagh and Timothy.
The Defendants rely upon what is said to be an admission in a letter dated 25 October 2011, from Timothy’s solicitor, addressed to Kerry, as one of the executors of Sheelagh’s estate, which letter included:

“In relation to the Collaroy property, this property was purchased originally by Mount Mill Pty Limited and later transferred to our client's parents as joint tenants. The purchase price for the Collaroy property was treated as a loan from Mount Mill Pty Limited and during [Robert’s] lifetime the loan by Mount Mill Pty Limited was forgiven."

Timothy’s evidence was to the effect that all but the part of the paragraph quoted, relating to the forgiveness of the loan by Mount Mill, accurately recorded the true facts. He denied that he had told his solicitor that the loan had been forgiven (T91.26 - T91.29).
Despite the denial by Timothy, and despite senior counsel for the Plaintiffs suggesting that the solicitor who prepared, and sent, the letter might be called (T109.08 - T109.25), this did not occur. Whilst senior counsel for the Defendants submitted, faintly, that the court should accept the fact asserted, namely the forgiveness of the loan, I am satisfied, on the whole of the evidence, that the loan referred to, in fact, was not forgiven in 1982 or 1983. I have dealt with my conclusion regarding how the executors of Robert’s Will, Timothy and Mount Mill treated the various loans by way of set-off earlier in these reasons.
On the third day of the hearing, the Plaintiffs tendered the Balance Sheet, Income Account and Investments Schedule for Robert, for the financial year ending 30 June 1981 (Ex. TFM). This document confirms that Robert was prepared to have the whole of the purchase price and associated costs and expenses of the Collaroy property ($172,193) treated as having been borrowed, from Mount Mill, solely by him, and to have Sheelagh’s interest in that property treated as a gift to her by him.
Senior counsel for the Plaintiffs did not suggest that the sale price of $165,000 was less than market value. In any event, whilst a copy of the valuation was not produced, it is clear from the contemporaneous documents written by Mr Larkins, that a valuation had been carried out to enable the purchase price to be ascertained, that the purchase price accorded with the valuation, and that the Commissioner for Stamp Duties had accepted the valuation in stamping the Contract.

Timothy’s Evidence

For the reasons I have identified above, it is necessary to consider Timothy’s evidence carefully, since, as he correctly acknowledged, he is the only person who is able to give any evidence of the conversations that he had with Robert and Sheelagh about the Collaroy property.
It was not in dispute that Timothy had the onus of proving each of the necessary elements required to establish the case pleaded.
In their written submissions filed following the conclusion of the evidence, the Defendants submitted that the court would need to determine, at least, the following facts in dispute:

(i) whether Timothy had knowledge of the transfer of the Collaroy property before the property was transferred from Mount Mill to Robert and Sheelagh;

(ii) whether Timothy approved or consented to the transfer of the Collaroy property from Mount Mill to Robert and Sheelagh;

(iii) whether Robert made any “promise” or “assurance” to Timothy in 1983 that the Collaroy property “will be left to you and Gael and Kerry one third each”;

(iv) whether Sheelagh made any “promise” or “assurance” to Timothy in the same terms as that allegedly made to Timothy by Robert;

(v) whether Timothy had a continuing belief, after the alleged “promise” or “assurance” was made, that he would receive a one third share of the Collaroy property upon the death of both Robert and Sheelagh.

Timothy was extensively cross-examined. This was unsurprising because the Plaintiffs’ case depends upon the acceptance of his evidence. I had the opportunity to observe him closely whilst he was giving his evidence. He was almost 79 years old at the time of the hearing. He had an impressive command of some of the details of his own case. When asked, he stated that the affidavits that had been relied were all, truthful, accurate and complete; that he had a good memory; that he had a good recall of the events recorded in his affidavits; and that he could remember the details of the conversations that he had with Robert and Sheelagh accurately and completely: T30 - T31. Whilst giving his evidence, I did not observe signs of any cognitive deficits.
Having considered his affidavit and oral evidence very carefully, I have concluded that his recollection, about some of the events, is unreliable, and his evidence, in part, was tailored, not necessarily intentionally, to what he perceived to be the best advantage for his case. In stating this, and despite the strong attack against credibility in submissions made on behalf of the Defendants, I do not conclude that he deliberately attempted to fabricate evidence, or to mislead the court.
Rather, I consider that there was clearly a very strong emotional overlay to the case; that Timothy is convinced of the righteousness of that case and has a strong belief in the Plaintiffs’ cause and what he sees as his entitlement, with the result that these matters have affected some of the evidence given by him. That emotional overlay is even more significant since he is contending, principally against his two sisters, that a promise was made, and relied on, and in circumstances where he is seeking to make good his sense of disappointed hope.
I have borne in mind that throughout the proceedings, Timothy and Mount Mill were legally represented. It seems reasonable to infer, as I do, that Timothy’s two affidavits, to which I shall refer, were prepared with the assistance of his lawyers. Therefore, in expressing these conclusions, naturally I have also considered the possibility of fault lying with the person(s) who drafted the affidavits rather than with Timothy (especially since he asserted that the statement regarding the forgiveness of the debt in his solicitor’s letter was incorrect). However, I do not believe that such fault exists because the variations demonstrated by documents created prior to the commencement of these proceedings, some in Timothy’s own hand, are so marked and are of such substantial significance. They contradict some important parts of the evidence upon which Timothy must have given instructions. In addition, I cannot say that I found some of Timothy’s evidence on the disputed matters convincing. I am unable to safely rely on all his evidence.
In his affidavit in chief, Timothy relied, principally, upon the following conversations with Robert, which conversations he stated in his only affidavit in chief read at the hearing (at paragraphs 53 and 73):

(a) In about 1983:

“Mount Mill has transferred the Collaroy property into both my name and your mother’s name. It will be left to you and Gael and Kerry one-third each.”

(b) In about June 1995:

(I said) “Did you change your will to leave Collaroy to Kerry?” (He said) “Yes”. (I said) “That is not what you had promised.”

In relation to the conversation said to have taken place in 1983, other than stating the relatively few words that he stated had been uttered by Robert, Timothy provided no context whatsoever. During oral submissions, when I raised this as a “problem” with senior counsel for the Plaintiffs, he seemed to accept, or at least understand, correctly in my view, that this could be so: T212.32 - T212.36.
Timothy also stated, in his affidavit in chief, that following the conversation in 1983, he “was shocked and disappointed” and that “[i]t had never occurred to me that Collaroy would not remain part of Mount Mill”.
Timothy stated that he had no knowledge of the contents of the letters from Mr Larkins (a copy of which he had annexed to his affidavit) until after his father’s death. He maintained, under oath, that he had no knowledge of the transfer of the Mount Mill property to Robert and Sheelagh until 1983, when Robert had told him about it. This is despite the assertion in his affidavit, that from the late 1970’s, Robert had limited his “productive participation” to office work, including doing the cash book, paying bills and wages, and doing the banking, and that during the periods that Robert and Sheelagh went to the Collaroy property, it was he (Timothy) who “was responsible for the office work as well as the farming work”. Later, in the same affidavit, he had also stated, however, that Robert “exercised almost total control over Mount Mill” until about 1990.
In relation to the conversation said by Timothy to have taken place in June 1995, the only context provided in his affidavit was that it had occurred “following a conversation with my wife”. Timothy’s wife, Helen, gave no evidence, and what the conversation between them was about is not disclosed. Accordingly, again, there is no context. Only the words said to have been spoken by Timothy are stated.
Furthermore, there is no response, by Robert, in answer to the statement “That is not what you had promised”, said to have been made by Timothy, given in Timothy’s affidavit. It is highly unlikely that no response was made by Robert. Yet, the statement by Timothy as to what he said is all that the evidence reveals.
It was not until his only affidavit in reply, made on 30 January 2015, less than 2 weeks before the hearing, that Timothy gave evidence that the “subject [of the Will] came up again in or about the late 1990s (sic)”, at which time Robert is alleged to have said: “I will do what I said I would do previously and change my will back so that Collaroy is left three ways. As I mentioned in an earlier will, following my death I would like you to look after Kerry’s welfare if need be”.
In the same affidavit, Timothy added, also for the first time, that in about late 2000, Robert also said “[e]ach of your mother and I have made wills that leave Collaroy to you and your sisters equally as originally promised”.
I am not able to accept that either of these conversations, with Robert, in fact, occurred. As stated, neither was referred to in Timothy’s affidavit in chief. To omit each of these conversations from that affidavit is a serious omission. In relation to the second conversation, because there had been a specific reference in his earlier affidavit, to the codicil made by Robert in August 2000, and the Will made by Sheelagh in July 2000, but not to the conversation said to have taken place, the omission is even more serious and even less explicable.
In relation to Sheelagh, all that Timothy asserted in his affidavit in chief was that she had been present during the first of the conversations and that she did not say anything. In his oral evidence in chief, leave for which was granted, he added (T24.33 - T26.02):

“…Do you recall in your affidavit that you gave evidence of conversation with your father in 1983 in the kitchen at Coomber?
A. Yes.
Q. You said "your father said Mount Mill has transferred the Collaroy [property] into both my name, and your mother's name. It will be left to you, and Gael and Kerry one-third each"?
A. Correct.
Q. You said that your mother was present?
A. Yes.
Q. This took place, you say, in the kitchen at Coomber?
A. Yes.
Q. Were you[r] parents standing or sitting?
A. Sitting at the kitchen table.
Q. How big is the kitchen table or was it?
A. It's about 5 foot long and 2 foot wide.
Q. In relation to your mother and father, were they sitting opposite each other, side by side or what?
A. They were sitting on one side and I was on the other.
Q. How close were they together?
A. As close as normal chairs are.
Q. When your father was speaking, did you look at your mother?
A. Yes. She was listening to him.
OBJECTION
HIS HONOUR: Mr Evans, I think if you could focus on who was doing what. I think Mr Willmott asked you whether you were able to observe your mother. The answer is either "yes" or "no".
WITNESS: Yes.
WILLMOTT
Q. When your father was speaking did you notice where your mother was looking?
OBJECTION
HIS HONOUR: He can say where she was looking directly; to the side, up in air, or at book
WITNESS: [She] (T55.20) was looking at my father.
WILLMOTT
Q. How long did she remain looking at your father for?
A. While he was speaking.
Q. Did she look at anywhere else?
A. Yes, at me occasionally.
Q. When was that?
A. When my father wasn't talking.
Q. Did you notice anything about your mother?
A. Nothing unusual.
Q. Did she have anything in her hands?
A. No.
Q. There was no papers or anything else in front of her or, anything like that?
A. No.”

Timothy relied upon the following conversations with Sheelagh, also set out in the affidavit to which I have referred:

(a) In or about October 2004:

(She said) “Gael and Kerry had told me that you had been given Coomber and lots of houses. I am tired of being pressured about Collaroy all the time. I have changed my Will and am leaving Collaroy to your sisters. I am embarrassed and sorry. (I said) “Why did you do this?” (She said) “Gael and Kerry told me that Vicki Yeates (my mother’s solicitor) was sick and I should see someone else about my will and that they will look after me now. You were given Coomber and they got nothing.”

(b) When he found that Sheelagh had changed her Will in 2004:

(I said) “That’s not right. I was supposed to get 1/3 of the Collaroy property.”

(I said) “The Collaroy property was transferred from the company without my knowledge or approval.” (Philip said) “Mount Mill who your father’s company and he could do what he liked.”

Timothy added in his oral evidence in chief, leave for which was granted, at T26.04 - T26.28:

“Q. I want to ask you in relation to the meeting you had with Mr Hawley and this deals with your affidavit in reply, you say that you were certain that she said to Mr Hawley "After my father transferred Collaroy out of the company, he promised that Collaroy would be left to me and my sisters in equal shares". At the time of this meeting, your mother was present?
A. Yes.
Q. This meeting was in Mr Hawley's office I understand?
A. Yes.
Q. Were you all sitting down?
A. Yes.
Q. Where was your mother sitting in relation to you when you said these words?
A. I can't recall.
Q. It was all in the same room?
A. Yes.
Q. Around the table?
A. I'm pretty sure it was.
Q. When you said those words, did you mother say anything?
A. No.”

During cross-examination, Timothy acknowledged that another, different, version of the first conversation said to have occurred with Robert, in Sheelagh’s presence, had been given by him. In an affidavit sworn on 2 April 2013 (which affidavit he did not read in these proceedings), filed in support of his claim for a family provision order, he had stated (the relevant paragraphs of which are set out in Ex. D5):

“26. On or about 1983, my father said to me, words to the following effect:
‘I will be leaving Collaroy a third each to your two sisters and to you’

[Sheelagh] was present during that conversation.”

He had earlier stated, in the same affidavit:

“23. In about 1981, Mount Mill transferred the Collaroy property into both my Father’s name and the deceased’s name. Exhibited to me at the time of swearing this affidavit and marked TFE 94-95 is a copy of the executed transfer form. My father did not tell me about the transfer at the time. After the transfer took place, my father said to me that “you will get a third of the Collaroy property.” My father also said to me at that time “Mount Mill has transferred the Collaroy Property into both my name and your mother’s name.”

The difference between the two versions of the conversation said to have taken place with Robert was explored in cross-examination, during which Timothy gave the following evidence (at T31.39 - T31.50; T36.38 - T37.33):

“Q. You don't have any doubt that the words that he said was "Mount Mill has transferred the Collaroy property to both my name and your mother's name. It will be left to you and Gael, and Kerry one third each". That, you say, was precisely what your father said?
A. Yes.
Q. Is that your sworn evidence?
A. Yes.
Q. Have you ever said anything different about what your father said on that occasion?
A. No.
…
Q. My question to you is which of the statements between paragraph 26 of the affidavit of 2 April 2013 and paragraph 53 of your affidavit of 23 October 2014, which statement is true and which statement is false?
A. 53 is true and 26 is false.
Q. 26 is false, you say, because you say your father did not say "I will be leaving Collaroy", et cetera, you say he did not say that. Is that now your evidence?
A. No, it's just that the
Q. No, please. Is that now your evidence that your father did not say, in or about 1983 "I will be leaving Collaroy, a third each, to your sisters and to you". Your father did not say that, is that your sworn evidence?
A. That's what I'm saying, yes.
Q. Mr Evans, when you came to swear this affidavit may we take it that you read it carefully?
A. Yes.
Q. And may we take it that you knew that this conversation was a very important part of your case?
A. Yes.
Q. How does it come about, Mr Evans, that you swore a false statement about such a crucial event? How did you come to swear a false affidavit?
A. I was mistaken.
Q. I beg your pardon?
A. I made a mistake.
Q. What was the mistake that you made?
A. Well, the wording wasn't quite correct.
Q. But you see, you were the only one present weren't you, your mother and father are now dead. You are the only one that's still alive?
A. Yes that's right.
Q. And you say you made a mistake. Is that what you want his Honour to believe that you made a mistake?
A. I didn't get my wording quite right.
Q. Come Mr Evans, you knew perfectly well that this was a crucial part of your case and you say now you just didn't get your wording quite right, is that what you want his Honour to believe?
A. Well, I'm just saying that my wording is more accurate in the latest affidavit than the first one.”

This evidence raises a real doubt whether Timothy recalled, with precision, the words used by Robert.
Timothy was also asked some questions about the assertion in his affidavit in chief, which was read in the proceedings, that he did not know about the transfer of the Collaroy property until 1983. I shall set out relevant parts of the cross-examination (commencing at T38.16 and ending at T45.04):

“Q. Look at paragraph 55 of that affidavit. This is what you swore in your affidavit. Paragraph 55 this is immediately following the conversation about which you say you made a mistake. You say "I was shocked and disappointed." Is that statement true?
A. Yes.
Q. Because you go on to say "until that point I had no knowledge that Collaroy had been transferred out of Mount Mill." Is that statement true?
A. Yes.
Q. Do you want his Honour to believe that until 1983 you had no knowledge that the Collaroy house was transferred to your mother and father out of the possession of Mount Mill? Is that what you want his Honour to believe?
A. I didn't know until
Q. Is that what you want his Honour to believe?
A. Yes.
Q. That you did not know and when you found out in 1983 you were shocked and disappointed, is that your evidence?
A. Yes.
Q. Is that evidence true?
A. Yes.
Q. So that what you're saying there in paragraph 55 is that until this conversation in 1983, you had no knowledge that the Collaroy property was transferred into your mother and father's name. Is that your sworn evidence?
A. Yes.
Q. Mr Evans, that evidence I suggest, is false and false to your knowledge. What do you say about that? And the reason that it's false is that you knew long before 1983 that this property had been transferred away from Mount Mill?
A. No.
Q. Isn't that the truth?
A. No, I didn't know.
Q. You didn't know? Long before 1983 that the property had been transferred away, is that your evidence?
A. Yes.
Q. Is that what you want his Honour to believe?
A. Yes.
…
Q. Did you write to Mr McGeogh and say to him "I think it would be useful to clarify the position with regard to the house at Collaroy"?
A. Yes.
Q. And in that context were you seeking to put facts to McGeogh which you thought would be relevant both to the house at Collaroy and the house at Mudgee?
A. Um, certainly about the house at Collaroy, yes.
Q. What you went on to say was "Collaroy was originally acquired by Mount Mill in 1965." That statement was accurate was it?
A. Yes.
Q. You go on to write to him and say "and transferred to my mother and father in 1981."
A. Yes.
Q. Was that statement to McGeogh accurate?
A. Yes.
Q. Then you said, "I agreed to this transfer." Was that statement true?
A. Well, after speaking to my father, yes.
Q. So that in 1981 you agreed to the transfer on a particular condition?
A. No, I didn't agree to it in '81. I agreed to it when my father told me what he had done.
Q. Is that your considered answer?
A. Yes.
Q. Are you swearing to his Honour that you did not know in a date earlier than 1983 about the fact that the Collaroy property was acquired by your mother and father from Mount Mill, is that your evidence?
A. Yes.
Q. You see, what you said to Mr McGeogh is that "I agreed to this transfer on the condition that I would retain a one third share of this property." So you actually agreed to the transfer did you not?
A. No, what I agreed to was when my father told me he transferred I agreed to accept one third.
Q. No, you said I agreed to this transfer?
A. Well, it had already been transferred, so.
Q. Mr Evans, do you not understand the words that I am putting to you "I agreed to this transfer". Is that statement correct?
A. As I said I didn't agree to it prior to him telling me he transferred it.
Q. Is that statement true?
A. Yes. I accepted what he told me.
Q. Just so I'm clear about what it is that you are saying about your knowledge of this transfer, is it your evidence that you did not know until 1983 of the transfer?
A. Yes.
Q. Might I approach. (Mr Stitt and Mr Willmott approached the witness box.) Mr Evans, would you look at this document. Is that your handwriting?
A. Yes.
Q. And is that your signature?
A. Yes.
Q. (Mr Stitt and Mr Willmott returned to the bar table.) Do you remember writing a letter to your mother and to Mr Philip Hawley?
A. Yes.
Q. And in that letter did you set out the true facts as you understood them to be?
A. Yes.
Q. Relating to the Collaroy property?
A. Yes.
Q. And you knew, of course, that Mr Hawley was a solicitor?
A. Yes.
Q And you were writing to your mother trying to get clarity and precision into this whole Collaroy property question, were you not?
A. I just wanted to explain to Mr Hawley what I, my interpretation of what happened.
Q. What you set out in that letter was also a statement of events in which you were involved in relation to the Collaroy property?
A. Yes, right.
Q. Let me read to you what you sent to Mr Hawley and to your mother. Let me read to you what you wrote and tell me whether it is true: "When Collaroy belonged to the company, it would have ultimately come to me." Is that statement true to your belief when you wrote it?
A. Yes.
Q. I'll read it again so you're at no
A. I was referring to Mount Mill.
Q. No, "when Collaroy belonged to the company" - that's Mount Mill "it would have ultimately come to me"?
A. Yes.
Q. Was that a statement which you believed to be true?
A. Yes.
Q. Then you said: "Then in 1980 when dad told me he was transferring it to into yours and his names as joint tenants" just stopping there, is that statement true?

I note what was said by Corboy J in Como v Helmers [2011] WASC 179, at [78]:

“Cases in which courts have recognised a proprietary estoppel in a domestic or family context generally involve acts of reliance and the prospect of detriment that extend beyond what would ordinarily be attributable to natural love and affection and/or the recognition of family ties and obligations. It is that extra dimension in the facts that will often mark the departure or proposed departure from a representation or assumption as unconscionable. It will also stamp the relevant representation or promise with the clarity required for an estoppel and indicate that what was said or done was intended to affect legal relations between the parties.”

Common Intention Constructive Trust

It is clear that the elements required to be established to found this claim overlap with the elements required to be established for equitable estoppel. Each is concerned with equity's intervention to provide relief against unconscionable conduct. The constructive trust in this context is based on a common intention that the other party is to have an interest in the property, which is acted upon to the detriment of the alleged beneficiary. There is an intention that the other party is to have an equitable interest in the land. In equitable estoppel, the main emphasis is that the landowner has to have acted in an unconscionable manner taking the entire set of circumstances into account. There is no clear intention that the other party is to have an equitable interest in the land. The other important difference lies in the remedies.
In Grant v Edwards [1986] Ch 638, Browne-Wilkinson V-C said, at 656:

“In both, the claimant must to the knowledge of the legal owner have acted in the belief that the claimant has or will obtain an interest in the property. In both, the claimant must have acted to his or her detriment in reliance on such belief. In both, equity acts on the conscience of the legal owner to prevent him from acting in an unconscionable manner.”

A common intention trust is based on actual intention, which is either expressly stated by, or is to be inferred from the conduct of, the parties. The elements to be established are that:

(a) the parties formed a common intention as to the ownership of the beneficial interest in the identified property;

(b) the party claiming a beneficial interest must show that he, she, or it, has acted to his, her, or its, detriment;

(c) it would be a fraud on the beneficiary for the trustee to assert that the claimant had no beneficial interest in the property.

The legal principles in relation to a constructive trust were set out by Deane J in Muschinski v Dodds (1985) 160 CLR 583, at 619 - 620:

“Like most of the traditional doctrines of equity, it operates upon legal entitlement to prevent a person from asserting or exercising a legal right in circumstances where the particular assertion or exercise of it would constitute unconscionable conduct: cf. Story, Commentaries on Equity Jurisprudence, 12th ed. (1877: Perry ed.), vol. 2, par. 1316; Legione v. Hateley. The circumstances giving rise to the operation of the principle were broadly identified by Lord Cairns L.C., speaking for the Court of Appeal in Chancery, in Atwood v. Maude: where “the case is one in which, using the words of Lord Cottenham in Hirst v. Tolson, a payment has been made by anticipation of something afterwards to be enjoyed [and] where ... circumstances arise so that future enjoyment is denied”. Those circumstances can be more precisely defined by saying that the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do: cf. Atwood v. Maude, and per Jessel M.R., Lyon v. Tweddell [footnotes omitted].”

In Rasmussen v Rasmussen (1995) VR 613, Coldrey J, at 615, wrote:

“In determining whether there is a common intention that a claimant was to have a beneficial interest in the property the court will look firstly for direct evidence of any express communications between the parties or the making of admissions by them. In addition, the common intention may be inferred from the conduct of the parties, for example, contributions to the cost of the property claimed or its maintenance. Such conduct is also of factual importance in determining whether a claimant has acted to his or her detriment. However, what is to be enforced is an actual intention inferred as a matter of fact.”

The real question is the question of unconscionability and in this regard the Court is guided by equitable principles.
The principles were considered by the High Court in Baumgartner v Baumgartner (1987) 164 CLR 137, per Mason, Wilson & Deane JJ, at 148:

“His Honour pointed out that the constructive trust serves as a remedy which equity imposes regardless of actual or presumed agreement or intention "to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle" … In rejecting the notion that a constructive trust will be imposed in accordance with idiosyncratic notions of what is just and fair his Honour acknowledged that general notions of fairness and justice are relevant to the traditional concept of unconscionable conduct, this being a concept which underlies fundamental equitable concepts and doctrines, including the constructive trust [Footnotes omitted].”

Campbell J put the matter succinctly in West v Mead [2003] NSWSC 161; (2003) 13 BPR 24,431, at [58] - [59], and [62]:

“Before any particular asset can become subject to a constructive trust in accordance with the Baumgartner principle, one needs to have a joint relationship or endeavour, and an asset acquired in the course of, and for the purposes of, that joint relationship or endeavour …
In accordance with this approach, a plaintiff needs to establish that there is indeed a joint endeavour between the parties, in which expenditure is shared for the common benefit. It is also necessary to identify what the scope of that joint endeavour is. It is a question of fact, for any couple, what the scope of the joint endeavour they are engaging in is …
Part of the justification for imposing the Baumgartner constructive trust is that the parties have jointly been building up assets, on the basis that those assets will be available for the joint endeavour in [the] future. Part of the reason why it can be unconscionable to let the legal title lie where it falls, if the relationship fails, is that each knew that the other was contributing to a common pool on the basis that the pool, and assets acquired from it, would be used for their ongoing common benefit. It is unconscionable for the party who ends up, at the end of the relationship, with a disproportionate share of the assets which were built up during the relationship, to keep those assets when he or she knew that that was the basis on which the assets were being built up.”

Since I do not accept the evidence of the conversations relied upon by Timothy, it is not necessary to discuss the principles relating to the Limitation Act, laches or acquiescence.

Breach of Duty by Directors

I have earlier referred to the allegation of breaches of duty by Robert and Sheelagh. It seems to me that the following principles are relevant:

(a) A director of a company, as a recognised category of fiduciary, owes fiduciary duties to a company as a separate legal entity, and not to that company’s shareholders or creditors: Pilmer v The Duke Group Ltd (in liq) [2001] HCA 31; (2001) 207 CLR 165, at [18]; Australasian Annuities Pty Ltd (in liq) v Rowley Super Fund Pty Ltd [2015] VSCA 9, at [57] and [221]. It follows that, a director must exercise his or her powers in the general interests of the company: In re Cawley & Co (1889) 42 Ch D 209, at 233. A director’s duties include a duty to act in good faith and in the interests of the company, a duty to avoid conflicts of interest, and a duty not to exercise powers for an improper purpose: Australasian Annuities Pty Ltd (in liq) v Rowley Super Fund Pty Ltd, at [58]. These duties also include a duty not make a profit out of his trust or act for his own benefit or the benefit of a third person without the informed consent of his principal: Bristol and West Building Society v Mothew [1998] Ch 1, at 18.

The “no conflict rule” is, in substance, that a fiduciary is under an obligation, without informed consent, not to promote his or her personal interest by making or pursuing a gain in circumstances where there is a conflict, or real or substantial possibility of a conflict, between those personal interests and those to whom the duty is owed: Pilmer v Duke Group Ltd (in liq), at [78]. The “no profit rule”, in substance, provides that a fiduciary cannot obtain a profit from his or her fiduciary position without the principal’s consent. The two rules may overlap.

(b) The existence and scope of the duties that a director owes to a company are defined and limited by the company’s constitution: see Whitehouse v Carlton Hotel Pty Ltd (1987) 162 CLR 285, at 292; Levin v Clark [1962] NSWR 686, at 700 - 701. The duty “must be moulded according to the nature of the relationship and the facts of the case”: Hospital Products Ltd v United State Surgical Corporation (1984) 156 CLR 41, per Mason J, at 102. Thus, one must assess any duty and any conflict in the context of the circumstances of the company and its objects.

(c) In a company like Mount Mill, which was a closely held family company, where the Governing Director was given such wide powers and the objects included benefitting family members, the requirement to prevent self-interested dealing is less acute: Australian Securities and Investments Commission v Maxwell [2006] NSWSC 1052; (2006) 59 ACSR 373, at [103].

(d) A court does not presume impropriety and where the transaction is within the powers of the directors, the onus is on the party who challenged the action of the directors to establish that they did not act bona fide for the benefit of the company: Richard Brady Franks Ltd v Price (1937) 58 CLR 112, per Latham CJ, at 135.

Limitation Period Applicable to Breach of Director’s Duties

As stated, the Defendants relied upon Gerace v Auzhair Supplies Pty Ltd, at [70], submitting that the Plaintiffs had not pleaded any facts that might constitute concealed fraud or any other unconscionable conduct on the part of the Defendants with the result that the Defendants were not precluded from relying on the 6-year limitation period set by the Limitation Act and s 1317K of the Corporations Act, which applies by analogy to equitable claims.
In the recent decision of Issa v Issa [2015] NSWSC 112, White J commented on Gerace v Auzhair Supplies Pty Ltd, including paragraph 70 upon which the Defendants have relied. His Honour stated, at [56]:

“… it is not at all clear that the authorities to which his Honour referred show that when a claim is brought in equity’s exclusive jurisdiction to which no statutory limitation period is directly applicable, but where there is an analogous claim to which a statutory bar is applicable, the bar will always be applied by analogy unless reliance by the defendant on the statute would in the circumstances be unconscionable, as distinct from doing so unless the application of the statute by analogy would be unjust”.

His Honour concluded, at [79], that:

“If the circumstances of the case make it unjust to apply the statute of limitations by analogy to prevent a plaintiff from obtaining an equitable remedy arising from the defendant’s breach of fiduciary duty so that it would be against conscience for the court to apply a rule founded on the analogy, it is arguable that it would be unconscientious for the defendant to rely on the analogical application of the statute.”

Because of the conclusion to which I have come in regard to the alleged breach of directors’ duties, it is unnecessary to further consider this aspect of the defence raised

Determination

I have dealt with the family and the creation of Mount Mill earlier in these reasons. It is within the context described that the Plaintiffs’ case must be determined.
The Plaintiffs' claim is not a "typical" equitable estoppel claim which sometimes arises amongst members of rural families, such as in Giumelli v Giumelli, Flinn v Flinn [1999] VSCA 109; [1999] 3 VR 712, and Thorner v Major, in which a family member, or other person, works on a family farm for reduced wages for many years in reliance on a promise that the farm will be given to him at some time or left to him by will. Nor is it a claim in which a person expends money, effort and other resources on improving another’s property in reliance on a promise from the property-owner that the person expending the money, effort or other resources will obtain a proprietary interest in the property. Nor is it a claim made by family members to reflect care arrangements for the care and accommodation of an elderly relative. Like many of those cases, however, this is a case where what is alleged as having been a promise or a common intention has not been recorded in writing.
In relation to the equitable estoppel claim, I am not satisfied that the words attributed to Robert, and said to have been heard by Sheelagh, identified by Timothy in his affidavit in chief read in the proceedings, were, in fact, said. The different versions of the conversation, as well as other contradictory evidence, lead me to doubt that the words stated in Timothy’s affidavit were said by Robert. Accordingly, I am not satisfied that there was a clearly articulated promise, or assurance, as alleged by Timothy.
The suggestion of a “promise” made by Robert and/or Sheelagh did not find its way into any pre-litigation correspondence written by Timothy. One would have expected him to put the allegation of a promise at the forefront of his explanation of the events surrounding the transfer of the Collaroy property. His allegations are also inconsistent with the correspondence and other documents written, and relied upon, in about 1996 and 1997. In this regard, “subsequent events throw retrospective light upon the meaning of past events”: Thorner v Major, per Lord Hoffman, at [8].
However, even if the words alleged were said in the precise terms stated, isolated from any context as they were in the affidavit, and not explained otherwise, the question is what would objectively have been conveyed by the terms of the conversation. I am not satisfied that Timothy could reasonably have taken it to be a promise, or an assurance, that he would receive a one third share of the Collaroy property on the death of the survivor of Robert and Sheelagh. Accordingly, the words, if said, could not, have reasonably, given rise to the expectation that Timothy said he held following the conversation.
To my mind, any assumption held by Timothy that Robert was communicating, and Sheelagh (assuming she heard it and did not say anything), was implicitly agreeing with, by way of promise or assurance, that one third of the Collaroy property would pass to Timothy, was unreasonable and unjustified. The words, if spoken, appear to have been no more than a statement of Robert’s, and Sheelagh’s (assuming she heard it and did not say anything), then intention. What was being spoken of was an intention to leave property by a will, an intention that Timothy must have appreciated could change over time.
There are no circumstances revealed by Timothy that, in my view, could reasonably lead to the conclusion that the words, if spoken, were tantamount to an irrevocable promise or assurance.
There is no evidence that after 1983 (assuming that to be the date of the conversation relied upon by Timothy), Robert told Timothy that he had, in fact, made a Will in which the Collaroy property had been left to Timothy, Gae and Kerry. There is no evidence that Robert or Sheelagh showed any Will to Timothy, at that, or at any other, time. I have earlier concluded that I am not satisfied that the other conversations to which reference was made in Timothy’s affidavit in reply occurred.
The subsequent conversation, alleged to have occurred with Robert in 1995, followed a discussion between Timothy and his wife, Helen. The terms of that conversation, or what preceded it was not explained. Again, there is no context.
In relation to Sheelagh, there is no acceptable evidence of any conversation in which she told Timothy that she had made a Will in which the Collaroy property had been left to Timothy, Gae and Kerry. Thus, this is not a case in which it could be said that, in accordance with an alleged promise relied upon, Robert or Sheelagh made a Will to fulfil that promise and that either told Timothy that he and she had done so.
To the contrary, there are examples in the evidence of Robert and Sheelagh changing their testamentary intentions and disclosing that change to one, or other, of their children. The events of 1996 and 1997 relating to the applications to the Rural Assistance Authority, well known to Timothy, demonstrate that clearly so far as he is concerned.
Furthermore, Timothy’s evidence about what he “hoped” is noteworthy. I am unaware of any particular event that could have marked the transition from such a hope to an expectation. In any event, I am not even sure that it was a reasonable hope, bearing in mind the existence of Gae and Kerry, at least one of whom might require assistance from her parents, in circumstances where Robert’s long held testamentary intention was that Timothy would inherit all of Robert’s and Sheelagh’s shares in Mount Mill. This would provide him with significant property.
Even if I am wrong about this, the equity involved in a claim of estoppel operates by considering whether it would be contrary to good conscience (measured according to the standards of equity) for the promisors to disappoint the expectation that the promisees have. The relevant time for the consideration is the time that the promisors (accepting Sheelagh’s involvement) seeks to disappoint that expectation. As stated above, this allows the court to consider, and take into account, all the conduct up to the time of Robert and Sheelagh disappointing the expectation. What is required is that Timothy and Mount Mill point to, and the court accepts, the reason why the impugned conduct is said to be unconscionable: Tory v Tory [2007] NSWSC 1078, at [58].
Any expectation (as opposed to a hope) that Timothy showed that he held from time to time, and the extent to which Robert and Sheelagh knew about it, or induced or encouraged it, are relevant to deciding whether it would be contrary to good conscience for Robert and/or Sheelagh to disappoint the expectation said to be held by Timothy. In this regard, the events of 1996 and 1997 are telling, and the established facts satisfy me that Timothy, in truth, held no expectation that he would come to receive a one third share of the Collaroy property at the death of the survivor of Robert and Sheelagh.
Thus, looking backwards from the moment when the alleged promise fell due to be performed, and asking whether, in the circumstances which have actually happened, it would be unconscionable for the alleged promise not to be kept, the answer must be in the negative.
This also gives rise to another problem. If Robert and Sheelagh made a promise, or gave an assurance, that the Collaroy property would be devised equally to their three children, the question would still arise whether the Plaintiffs needed to establish that they assumed that each of Robert and/or Sheelagh was, or were, not free to withdraw that promise or assurance: EK Nominees Pty Ltd v Woolworths Limited [2006] NSWSC 1172, per White J, at [231] - [267]. Because of other evidence, I am unable to infer that Timothy assumed that Robert and Sheelagh would not change his or her mind as to how the Collaroy property should be devised.

Timothy did not give any evidence that he had assumed that Robert and/or Sheelagh was, or were, not free to withdraw any promise, or assurance, given. To the contrary, the evidence reveals that Timothy accepted that each could do so, as all seemed to have done in Robert’s conversations identified in the correspondence to the Rural Assistance Authority and as evidenced in Robert’s and Sheelagh’s Statutory Declarations.
In any event, I do not consider that Timothy or Mount Mill could reasonably have made any such assumption based upon the conversations on which he has relied. One might think that Robert and/or Sheelagh might change his and her mind, because their circumstances, or the circumstances of others involved (Timothy, Gae and/or Kerry), and that change of mind might bring about a change of testamentary intentions.
If that were not enough, I am not satisfied that there were any acts of detrimental reliance by either Timothy or Mount Mill. Each ought to be able to point to an alternative course, or courses, which might have been open to him, or to Mount Mill. All that is put forward is that there might have been a challenge to the transfer of the Collaroy property out of Mount Mill.
I do not accept that Timothy or Mount Mill did not challenge the transfer of the Collaroy property from Mount Mill because of any alleged promise made, or assurance given, by Robert, acquiesced in by Sheelagh, to Timothy. It was not challenged because there was no need to challenge it and because any challenge would, in all probability, have been futile. The objects of Mount Mill and the powers of its Governing Director permitted such a course to be taken, particularly in circumstances where the consideration paid to Mount Mill was proper consideration.
Next, in case I am wrong, I must consider Robert’s and Sheelagh’s knowledge of the reliance by Timothy on what is said to be the promise about which he gave evidence. I cannot be satisfied that either had such knowledge. To the contrary, I am of the view that Robert did not consider, for one moment, that Timothy, or Mount Mill, could challenge the decision to transfer the Collaroy property to himself and Sheelagh, for proper consideration or that Timothy might consider doing so. This is evidenced by what he wrote on Ex. D3, including that “the company was mine and formed by me”. In relation to Sheelagh, there is simply no evidence that she knew of any such reliance.
There is yet another reason for the Plaintiffs’ estoppel claim to fail. The thrust of Timothy’s submissions in relation to the transfer of the Collaroy property out of Mount Mill, seems to proceed upon the basis that Mount Mill transferred the Collaroy property for no consideration, when the evidence is clearly to the contrary. The contemporaneous evidence reveals that a valuation of the Collaroy property was obtained and that the purchase by Robert and Sheelagh of the Collaroy property was for the amount identified in that valuation. There was no submission that the amount was not at least equal to the market value of the Collaroy property.
Whether the repayment of the loan could, or could not, be required because of the expiration of six years from its creation is not important for the simple fact is that Robert, and Mount Mill, effectively, received what each was owed, since together he and it did not have to repay an equivalent total amount owed to Robert’s estate.
It follows that I am not satisfied that Timothy or Mount Mill suffered any detriment. Even if I were wrong in reaching this conclusion, I am not satisfied that any detriment suffered was as a consequence of reliance on the specific promise or assurance alleged by Timothy.
That Mount Mill paid, until about 1990 amounts totalling slightly more than $22,000, does not alter the position, since it is accepted that all of the shareholders of Mount Mill received the benefit of that expenditure by the continued use of the Collaroy property until about 2002. There is no suggestion that Timothy, as a director of Mount Mill, at any time, made a word of complaint about the expenditure. Again, to do so would have been futile bearing in mind the objects of Mount Mill.
The statement made by Gageler J in Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [2014] HCA 14; (2014) 88 ALJR 552, at [150], that the detriment or harm required to ground an estoppel can be any material disadvantage but such material disadvantage must be substantial, although it need not be quantifiable in the same way as an order of damages, was repeated in Ashton v Pratt, per Bathurst CJ, at [147].
All things being considered in the present case, any expenditure by Mount Mill in the period after 1981 was not substantial and does not establish the detriment required to ground a proprietary estoppel.
In my view, Timothy and/or Mount Mill have failed to establish that he and/or it suffered any substantial detriment as a result of Robert and Sheelagh resiling from any promise or assurance said to have been given by Robert and accepted by Sheelagh, such as to give rise to the relief claimed.
Finally, when one considers all of the events, including the continued use of the Collaroy property by members of the family, including Timothy, after 1981, the events of 1996 and 1997 relating to the applications to the Rural Assistance Authority, and the transfer of Robert’s shares in Mount Mill to Timothy, it is not unconscientious for the Defendants, as executors of Sheelagh’s Will, to deny any assumption by Timothy that he would have a one third beneficial interest in the Collaroy property on the death of Sheelagh.
In summary then, I am satisfied that:

(a) Timothy has not established that either Robert or Sheelagh made any clear and unequivocal promise to him (or to Mount Mill) that one third of the Collaroy property would be left to him. (In this regard, I do not accept Timothy’s evidence;)

(b) any conversation between Robert and Timothy about the Collaroy property, even if heard by Sheelagh to which she did not respond, was not intended to be understood by Timothy (or Mount Mill) to be an irrevocable promise;

(c) it was not objectively reasonable for Timothy (or Mount Mill) to interpret what was said as a promise and to act in reliance on that interpretation;

(d) neither Robert nor Sheelagh knew, or intended, that Timothy (or Mount Mill) would act in reliance on what was said;

(e) neither Timothy nor Mount Mill suffered any detriment;

(f) neither Robert nor Sheelagh acted unconscionably in not honouring what was said.

Accordingly, I do not consider the elements of equitable estoppel are established. This aspect of the Plaintiffs’ claim fails.
In the Plaintiffs’ submissions in reply, junior counsel submitted that the “constructive trust which arose in 1983 is defined by a promise”. I have earlier concluded that there was no such promise.
Also, I cannot be satisfied that the requirements of a common intention, or a common assumption as to a state of affairs, and reliance upon that intention or assumption, to Timothy’s, or Mount Mill’s, detriment has been established. It is difficult to conclude that there was any “joint relationship or endeavour” as alleged by Timothy “to use the income and profits from the farming operation they conducted to benefit themselves as well as [Gae and Kerry]”.
No evidence of any discussion involving Timothy appears in his evidence. The Memorandum and Articles of Association of Mount Mill provided for the purposes for which the income and assets of the company could be used. There is no suggestion, otherwise, of any joint relationship or endeavour.
Even if there were a joint relationship or endeavour, it is difficult to ascertain when it failed. There is no allegation of fact in the pleadings as to when, or in what circumstances, the failure of the joint relationship or endeavour is said to have occurred.
Nor am I satisfied that Mount Mill, the claimant, to the knowledge of the legal owners, Robert or Sheelagh, acted in the belief that Mount Mill would obtain an interest in the Collaroy property. After all, the promise, as alleged, did not mention Mount Mill, but only mentioned the three children of Robert and Sheelagh.
Next, it is difficult to see what property was contributed by Mount Mill on the basis and for the purposes of the relationship or endeavour that would otherwise be enjoyed by Robert and Sheelagh in circumstances in which it was not specifically intended, or provided, that they should so enjoy it. In this regard, it cannot be forgotten that Robert gave proper consideration (based upon a valuation) to Mount Mill. Any contribution to the purchase of the Collaroy property by Mount Mill (and there is no evidence that the amount advanced by Robert to enable this to occur was repaid to him) was met by the payment of the proper consideration identified in the Transfer.
In the circumstances, I am not satisfied that there was any unconscionable conduct by Robert and/or Sheelagh which would justify the imposition of a constructive trust in favour of Mount Mill.
It follows that the Plaintiffs’ claim based upon a common intention constructive trust also fails.
In these circumstances, it is unnecessary to deal with the Limitation Act defences or the defence of laches, acquiescence and delay.
For the same reasons set out above, the claim of breach of duty by Robert and Sheelagh as directors of Mount Mill fails. In particular, the transfer, by sale of the Collaroy property to Robert and Sheelagh, for market value, was not an uncommercial transaction, but one into which Mount Mill was entitled to enter. What was done was clearly within the scope of the objects of Mount Mill and within the power of Robert as its Governing Director. The unlimited extent of the powers, authorities and discretions vested in Robert as the permanent Governing Director of Mount Mill by the Articles made clear that he bore the responsibility for the total control and direction of every aspect of Mount Mill’s operations.
In addition, there was simply no evidence that it was not in Mount Mill’s best interests to sell the Collaroy property to Robert and Sheelagh. Nor was there any evidence of any advantage gained by them or any loss suffered by Mount Mill.
There was no depletion of Mount Mill’s assets since the whole of the consideration was recorded in the books and records of Mount Mill as a debt owed by Robert. That consideration was at least equal to the then market value of the Collaroy property. In those circumstances, it could hardly be found that Robert had exercised any such powers that he had for an ulterior, or impermissible, purpose.
Finally, there is nothing in the evidence which would support a finding that the sale of the Collaroy property by Mount Mill was made clandestinely. I have found that the sale was not kept concealed from Timothy. He, himself, stated in correspondence that he had been informed of it by Robert.
All of the claims by Timothy and by Mount Mill fail.
The Court orders that the further amended Statement of Claim is dismissed. The argument on the issue of costs is stood over to a suitable date unless the parties are able to reach agreement on how the costs of the proceedings are to be borne.

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Decision last updated: 11 May 2015

Medium Neutral Citation:	Evans v Braddock [2015] NSWSC 249
Hearing dates:	9,10,11 and 12 February 2015
Decision date:	19 March 2015
Jurisdiction:	Equity Division
Before:	Hallen J
Decision:	Order that the further amended Statement of Claim is dismissed. Orders that the argument on the issue of costs be stood over to a suitable date unless the parties are able to reach agreement on how the costs of the proceedings are to be borne.
Catchwords:	EQUITY - Equitable estoppel by encouragement alleged - Family relationship - Assertion that conversation with father, in about 1983, that Plaintiff son would effectively receive, by Will, one third of certain identified real property amounted to an irrevocable promise or assurance - Where that real property held jointly by father and mother - Alleged silence by mother who was present at time of alleged promise or assurance - Whether court satisfied that any promise or assurance to give property to son - Whether promise or assurance given by mother by silence - Whether son or company acted to his or its detriment in reasonable reliance on alleged promise or assurance - Whether detriment proved - Whether father and/or mother knew of alleged reliance by son or company - Whether any unconscionable conduct by father and/or mother - Revocability of alleged promise or assurance - Subsequent conduct of parties - Onus of proof on son to prove reliance - Son’s alleged reliance upon promise or assurance by both father and mother inconsistent with his and the company’s conduct, years later, and before death of father and mother - Relevance of such conduct - Whether estate of mother bound to give effect to alleged irrevocable promise or assurance TRUSTS - Common intention constructive trust - Whether elements necessary to be established proved EVIDENCE - Principles requiring caution when relying on uncorroborated statements said to have been made by deceased person - Father and mother both deceased prior to commencement of proceedings - Relevance of contemporaneous or near contemporaneous documents - Credibility of son’s evidence when events alleged to have taken place many years before claim made - Relevance of conduct of parents inconsistent with alleged promise or assurance that son and company relied upon FIDUCIARY DUTIES - alleged breach of director’s duties - whether the transfer of real property from company to Governing Director and wife, who was a director, made in breach of director’s duties - Memorandum of Association provided that assets could be used to benefit the company’s employees and their families - Wide powers of Governing Director - Sale of real estate by company to parents - Whether to knowledge of son, also a director of the company LIMITATION PERIOD - whether 6-year limitation period prescribed by the Limitation Act 1969 (NSW) and the Corporations Act 2001 (Cth) applies by analogy to equitable claim - Unnecessary to decide
Legislation Cited:	Companies (New South Wales) Code (1981) Corporations Act 1989 (Cth) Corporations Act 2001(Cth) Fair Trading Act 1987 (NSW) Limitation Act 1969 (NSW) Real Property Act 1900 (NSW) Succession Act 2006 (NSW) Trade Practices Act 1974 (Cth)
Cases Cited:	Accurate Financial Consultants Pty Ltd v Koko Black Pty Ltd [2008] VSCA 86; (2008) 66 ACSR 325 Armagas Ltd v Mundogas S.A. (The Ocean Frost) [1985] 1 Lloyd’s Rep 1 Ashton v Pratt [2015] NSWCA 12 Australasian Annuities Pty Ltd (in liq) v Rowley Super Fund Pty Ltd [2015] VSCA 9 Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [2014] HCA 14; (2014) 88 ALJR 552 Australian Securities and Investments Commission v Maxwell [2006] NSWSC 1052; (2006) 59 ACSR 373 Auzhair Supplies Pty Ltd v Gerace [2014] HCASL 231 Barnes v Alderton [2008] NSWSC 107; (2008) 13 BPR 25,281 Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 Baumgartner v Baumgartner (1987) 164 CLR 137 Bristol and West Building Society v Mothew [1998] Ch 1 Commonwealth of Australia v Verwayen (1990) 170 CLR 394 Como v Helmers [2011] WASC 179 Day v Couch [2000] NSWSC 230 Delaforce v Simpson-Cook [2010] NSWCA 84; (2010) 78 NSWLR 483 Dillwyn v Llewelyn (1862) 4 De GF & J 517; (1862) 45 ER 1285 Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599 EK Nominees Pty Ltd v Woolworths Limited [2006] NSWSC 1172 Equititrust Ltd v Franks [2009] NSWCA 128; (2009) 258 ALR 388 Evans v Evans [2011] NSWCA 92 Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 Faraday v Rappaport [2007] NSWSC 34 Flinn v Flinn [1999] VSCA 109; [1999] 3 VR 712 Fisher v Brooker [2009] 1 WLR 1764; [2009] UKHL 41 Foran v Wight (1989) 168 CLR 385 Galaxidis v Galaxidis [2004] NSWCA 111 Gerace v Auzhair Supplies Pty Ltd (in liq) [2014] NSWCA 181; (2014) 310 ALR 85 Gillett v Holt [2001] Ch 210 Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101 Gorton v Commissioner of Taxation (Cth) (1965) 113 CLR 604 Grant v Edwards [1986] Ch 638 Grundt v Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641 Hammond v JP Morgan Trust Australia Ltd [2012] NSWCA 295; (2012) 16 BPR 30,901 Harbour Port Consulting v NSW Maritime [2011] NSWSC 813 Hospital Products Ltd v United State Surgical Corporation (1984) 156 CLR 41 Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160 In re Cawley & Co (1889) 42 Ch D 209 In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben’s of Australia) (Federal Court of Australia, Tamberlin J, 29 June 1995, unrep) Milling v Hardie [2014] NSWCA 163 Muschinski v Dodds (1985) 160 CLR 583 Olsson v Dyson (1969) 120 CLR 365 Onassis v Vergottis [1968] 2 Lloyd’s Rep 403; [1968] UKHL J1031-2 Pilmer v The Duke Group Ltd (in liq) [2001] HCA 31; (2001) 207 CLR 168 Pitt v Holt; Futter v Futter [2013] 2 AC 108; [2013] UKSC 26 Plunkett v Bull (1915) 19 CLR 544 Ramsden v Dyson (1866) LR 1 HL 129 Rasmussen v Rasmussen (1995) VR 613 Re Hodgson (1885) 31 Ch D 177 Richard Brady Franks Ltd v Price (1937) 58 CLR 112 Riches v Hogben [1985] 2 Qd R 292 Robertson v Federal Commissioner of Taxation (1952) 86 CLR 463 Schaeffer v Schaeffer (1994) 36 NSWLR 315 Sidhu v Van Dyke [2014] HCA 19; (2014) 251 CLR 505 Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466 Sledmore v Dalby (1996) 72 P & CR 196 CA Sullivan v Sullivan [2006] NSWCA 312; (2006) 13 BPR 24,755 Svenson v Payne (1945) 71 CLR 531 Thompson v Palmer (1933) 49 CLR 507 Thorner v Major [2009] 1 WLR 776; [2009] UKHL 18 Tory v Tory [2007] NSWSC 1078 Walton v Walton (Court of Appeal of England and Wales, Hoffmann LJ, 14 April 1994, unrep) Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56 Watson v Foxman (1995) 49 NSWLR 315 Webb v Ryan [2012] VSC 377 Weeks v Hrubala [2008] NSWSC 162 Weinstock v Beck [2011] NSWCA 228; (2011) 252 FLR 462 West v Mead [2003] NSWSC 161; (2003) 13 BPR 24,431 Whitehouse v Carlton Hotel Pty Ltd (1987) 162 CLR 285 Willmott v Barber (1880) 15 Ch D 96
Texts Cited:	P McClellan, “Who Is Telling the Truth? Psychology, Common Sense and the Law” (2006) 80 ALJ 655
Category:	Principal judgment
Parties:	Timothy Fitzgerald Evans (first Plaintiff) Mount Mill Pty Limited (second Plaintiff) Margaret Gael Braddock (first Defendant) Sheelagh Kerryn Evans (second Defendant) Philip King Hawley (third Defendant)
Representation:	Counsel: Mr M S Willmott SC; Mr D Liebhold (Plaintiffs) Mr R R Stitt QC; Mr G E Underwood; Mr D W Robertson (Defendants) Solicitors: Conomos & Spinak Lawyers (Plaintiffs) Michael Rogers and Co (Defendants)
File Number(s):	2012/260707