Harrison v Harrison
[2011] VSC 459
•19 September 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. SCI 2010 01860
| LOUISE HELEN HARRISON, SUE ELIZABETH HARRISON AND KATHRYN JEAN HARRISON | Plaintiffs |
| v | |
| CHRISTOPHER BARTON HARRISON | Defendant |
---
JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 8-12 August 2011, 15-19August 2011, 22-25 August 2011, 29-31 August 2011, 1, 2 September 2011 | |
DATE OF JUDGMENT: | 19 September 2011 | |
CASE MAY BE CITED AS: | Harrison & Ors v Harrison | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 459 | |
---
ESTOPPEL – Proprietary estoppel – Defendant brother of plaintiffs - Promises by defendant to provide for plaintiffs from bequest to him in their father’s will – Plaintiffs induced not to seek provision under Part IV of Administration and Probate Act 1958 (Vic) – Estate distributed – Whether promises made – Whether plaintiffs relied on promises – Whether detriment – Whether plaintiffs entitled if made application under Part IV of Administration and Probate Act – Whether promises too uncertain – Relief.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr R Waddell | Beck Legal Pty Ltd |
| For the Defendant | Mr R D Shepherd | Barker & Associates |
HIS HONOUR:
The three plaintiffs are the daughters, and the defendant is the son, of Kenneth Humphrey Harrison (“Kenneth”) and Joyce Jillian Harrison (“Jillian”). Kenneth died on 17 April 2003. By his will, dated 3 December 1998, he appointed the defendant as the executor and trustee of his estate. He devised all his interest in a number of parcels of farming land in northern Victoria (valued for probate purposes at $3.25 million) to the defendant, and the balance of his estate (valued at $101,000 for probate purposes) to Jillian. On 21 May 2004, the defendant was granted probate of Kenneth’s will. Final distribution of the estate took place on 29 July 2008, when Kenneth’s interest in the farming land was transferred to the defendant.
These proceedings were commenced by writ on 9 April 2010. The plaintiffs’ claim is based on proprietary estoppel. They allege that, after their father’s death, the defendant promised and undertook to them that he would ensure that provision was made for them from Kenneth’s estate. The plaintiffs claim that, in reliance on those promises and undertakings, they each refrained from obtaining legal advice as to their rights, and from making an application for provision from Kenneth’s estate, under Part IV of the Administration and Probate Act 1958 (“the Act”). They claim that, arising from the distribution by the defendant to himself of the farming land, and water rights which are appurtenant to the land, the defendant holds the land and water rights, on constructive trusts for each of the plaintiffs, in such proportions as are to be determined by consideration of the matters contained in s 91(4) of the Act.
Background
The farming property, with which this case is concerned, is a family property known as “Hopefield” at Pyramid Hill. That property has been in the Harrison family for more than 130 years. The property comprises 42 parcels of land, which in total amount to some 15,000 acres. Before his death, those parcels of land were owned, in differing shares, between Kenneth, and his three brothers, Noel, Clifford and John Harrison, each of whom survived Kenneth. Two of those parcels were held by John Harrison in his own name, and four parcels were held by Clifford Harrison. The remaining 36 parcels of land were held, in various combinations of co-ownership, by Kenneth and his brothers, as tenants in common.
Kenneth and his three brothers also owned, as tenants in common, a substantial quantity of water shares which they used to irrigate the farm. Under the legislation in force at the time of Kenneth’s death, those water rights could only be transferred to another land owner. They were thus considered to be attached to the land of the person or persons who owned them. In 2006, the legislation was amended, to enable the sale of water rights to persons who were not land owners. That process was referred to, in the evidence in this case, as the “unbundling” of water rights. It was common ground in the case that the water rights, in which Kenneth had an interest, passed to the defendant under the terms of Kenneth’s will. Subsequently, at the time that the water shares were unbundled, the water rights, which were held by the defendant and his three uncles as tenants in common, were divided, so that each of them owned their own water rights. As a result, the defendant owns 1,564.1 megalitres of high reliability water rights.
Kenneth and Jillian Harrison had six children. Two of them died, in separate fatal accidents, when they were children. The remaining four children are the defendant (“Christopher”), the second plaintiff (“Sue”), the first plaintiff (“Louise”) and the third plaintiff (“Kathryn”). Louise and Kathryn are twins. Christopher is 49 years of age, Sue is 47 years of age, and Louise and Kathryn are 43 years of age.
The plaintiffs and the defendant grew up in a house known as “Freedom Fields”, which was located on one of the parcels of land which comprised the farm. In 1985, Kenneth was diagnosed with a heart condition. He underwent triple bypass surgery at the Epworth Hospital in 1986. Subsequently, in 1989 he had a further bout of ill health, when he had a blood clot and bleeding on the brain.
After Christopher completed his high school education, he successfully completed a Bachelor of Applied Science in Chemistry, and a Graduate Diploma in Computer Science, at Bendigo College of Advanced Education. During his years of tertiary education, he lived in the halls of residence in Bendigo. Not long after he graduated in 1985, he returned to work at Hopefield, having been requested to do so by his father, because of his ill health.
At that stage, the farm was conducted as a partnership between the members of the four families. At the end of the 1980s, there was a crash in wool prices, which had a dramatic effect on the income of the farm. As a result, the farm business became unprofitable, and became burdened with substantial debt. Christopher took over most of the responsibilities from his father at Hopefield in relation to the direction of the farm business. He conducted negotiations with the manager of the National Australia Bank, to which the farm was indebted. At that time, the farm was being operated by Christopher, his three uncles, and his two cousins, Andrew (the son of Noel) and Ian (the son of Clifford). In June 1995, the formal structure of the farm business was changed from a partnership to a trust. CB Harrison & Sons Pty Ltd (“CBH”) was incorporated on 15 June 1995, and was appointed to be the trustee of the Hopefield Trust. Securities for financial accommodation were provided by the NAB, including securities over the parcels of land comprising Hopefield, and a fixed and floating charge over the assets and undertaking of CBH. Thereafter, Christopher, his three uncles, and his cousins, Andrew and Ian, continued to work on and operate the farm, until Andrew departed from it in 2002.
After Christopher returned to the farm, he initially lived at Hopefield. He married his former wife Jacqueline in January 1986. There were two children of the marriage, a son (born in 1987) and a daughter (born in 1989). Initially, Christopher and his family lived in the shearers’ quarters at Hopefield. In 1990, Christopher and his former wife moved into a house owned by the partnership at 2208 Boort Durham Ox Road, Durham Ox. They purchased that property from the partnership in 1993. In 1997, their marriage broke down. Family law proceedings between them were resolved in late 1998, on the basis that Christopher purchase the Durham Ox property from his former wife. He has lived in that property since. In November 2006, Christopher commenced a relationship with Kirsten Orr (“Kirsty”). They live together, and have a daughter, Siri, born in March 2011.
Following Kenneth’s death in April 2003, Christopher continued to work on the property with his three uncles and his cousin Ian. Subsequently, he ceased working on the property, but there was conflicting evidence in the case as to the date upon which he did so. The plaintiffs maintain that Christopher ceased to work on the property in 2005. On the other hand, the evidence of Christopher was that he finally ceased working on it in November 2006.
As I stated, Andrew Harrison ceased working at Hopefield in 2002. Subsequently, he made a claim for compensation from CBH. There is conflicting evidence as to whether he made that claim during the lifetime of Kenneth, or at some date subsequently. Ultimately, that claim was resolved in about May 2007, on the basis that his father, Noel, pay to him the sum of $1,300,000.
The second plaintiff, Sue Harrison, completed her secondary education in 1982. She undertook nursing training at Prince Henry’s Hospital in Melbourne, and in 1985 she qualified as a State Enrolled Nurse. Subsequently, in 1990, she graduated as a State Registered Nurse. Sue worked as a nurse from 1985 to 1997 at a number of different hospitals and medical centres. In the early 1990s, she had a relationship with a man, by whom she had a daughter, Eliza, in 1992. That relationship broke down in the following year. In 1996, she completed her Graduate Diploma in Midwifery. Subsequently, in January 1999, she moved from Anglesea to Ballarat, where she worked as a Director of Nursing, initially at Ballarat District Nursing, and then, for four years, at Kelaston Nursing Home Vision Australia Foundation. In late 2003, she moved to Apollo Bay, where she gained employment as the manager of Health and Aged Care at Otway Health Services. In 2004, she married her husband, Glen Lawler. She had two sons by that marriage, born in 2005 and 2007 respectively. In January 2007, she moved from Apollo Bay to Colac. Subsequently, in February 2008, Sue and her husband moved to Bendigo, where she was employed at the City of Greater Bendigo as a team leader. She separated from her husband, Glen, in January 2009.
After the first plaintiff, Louise Harrison, completed her High School Certificate, she attended Ballarat University, where she studied nursing. At the time of Kenneth’s death, she was married to Michael Skirka, who was a geologist. They were then living at Cobar. Louise had been appointed as nurse unit manager of a rehabilitation unit at the Royal Hobart Hospital, and was about to commence in that position. Subsequently, she and her husband lived in Hobart. In June 2004, Louise and Michael had their first child, a son, Angus. Their second son, Hamish, was born in February 2006. Hamish was subsequently diagnosed with autism, and is significantly disabled. On 8 April 2007, Michael Skirka died as a result of an accident while he was mountain climbing. Following his death, Louise and her two children continued to live in Hobart until December 2008, when they moved to live in Bendigo. Louise is currently working as a team leader with the chronic disease management unit at Bendigo Health. Because of her commitments to her children, and in particular to the care of Hamish, she works part time.
After completing her secondary education, the third plaintiff, Kathryn Harrison undertook a Bachelor of Arts degree at the University of Melbourne from 1986 to 1988. During that time, she lived in college, and met her future husband, Paul Somerville (“Paul”). In 1989, she completed her Graduate Diploma of Education at Bendigo College of Advanced Education. In 1998, she completed her Graduate Diploma of Librarianship.
After Kathryn completed her Diploma of Education, she commenced work as a school teacher, at Darwin, and then subsequently at Kerang. Kathryn married Paul in 1992. Paul is an accountant. They have three daughters, aged 13, 11 and 9 years respectively. After her marriage, Kathryn commenced a permanent position at Goulburn Square Secondary College. After the birth of her first child in 1998, she continued to work part time. She is currently on leave without pay, but she is about to take up a position at Bendigo South Secondary College for the remainder of 2011.
The plaintiffs’ claim
The plaintiffs’ claim is based on proprietary estoppel. In essence, the plaintiffs claim that, after Kenneth’s death in April 2003, the defendant promised and undertook to them that he would ensure that provision was made for them from Kenneth’s estate. The plaintiffs claim that they relied on those promises and undertakings given to them by the defendant, and, as a result, refrained from making any application for provision from Kenneth’s estate under Part IV of the Act. Subsequently on 25 October 2009 the defendant resiled from the promises and undertakings, which he had given to the plaintiffs. By then, the estate had been finally distributed on 29 July 2008, and consequently the plaintiffs were precluded, by s 99 of the Act, from commencing proceedings for relief under Part IV of the Act. Relevantly, the effect of s 99 of the Act is that no application for relief under Part IV may be made after final distribution of the estate. The plaintiffs accordingly claim that they have suffered detriment as a result on their reliance on the promises and undertakings given to them by the defendant. They claim to be entitled to relief, in equity, against the defendant consisting of the provision which would have been made, in their favour, on an application made by them under Part IV of the Act.
In its simplest form, the doctrine of proprietary estoppel is conveniently described in the following terms by Handley JA in Delaforce v Simpson-Cook[1]:
“[Proprietary] estoppel comes into existence when an owner of property has encouraged to another to alter his or her position in the expectation of obtaining a proprietary interest and that other, in reliance on the expectation created or encouraged by the property owner, has changed his or her position to their detriment. If these matters are established equity may compel the owner to give effect to that expectation in whole or in part.”[2]
[1][2010] NSWCA 84, [21].
[2]See also Donis & Ors v Donis (2007) 19 VR 577, 589 [36] (Nettle JA); [2007] VSCA 89; Re Basham deceased [1986] 1 WLR 1498, 1503.
I shall later, in these reasons, review the authorities relating to the principles of proprietary estoppel. However it is evident, from that review, that, in the context of this case, in order to establish a case based on proprietary estoppel, the plaintiffs must establish the following:
(1)That the defendant made to them promises and undertakings that he would confer on them an interest in property.
(2)That the plaintiffs acted in reliance on those promises by refraining from bringing proceedings for provision, under Part IV of the Act, from Kenneth’s estate.
(3)That the plaintiffs acted reasonably in so relying on the promises and undertakings made to them by the defendant.
(4)That the defendant knew or intended that the plaintiffs would rely on his promises and undertakings.
(5)That the plaintiffs acted to their detriment on the basis of the undertakings and promises made to them by the defendant.
In its fundamental form, the plaintiffs’ claims consist of the following propositions:
(1)Between the date of death of Kenneth and 2008 the defendant, on a number of different occasions, represented to and promised the plaintiffs that he would make provision for them out of Kenneth’s estate. Insofar as the defendant made such promises to an individual plaintiff, they were expressed to be made to each of the plaintiffs, and in circumstances in which it would be expected that they would be related to the other plaintiffs.
(2)In reliance on those promises, each plaintiff refrained from obtaining legal advice as to her rights under Part IV of the Administration and Probate Act 1958 (“the Act”), and refrained from making an application for provision from Kenneth’s estate under Part IV of the Act.
(3)It was reasonable for each of the plaintiffs to rely on the promises, and to be encouraged in their assumption and expectation that the defendant would make provision for her from Kenneth’s estate.
(4)The defendant made the promises to the plaintiffs in circumstances in which he knew that the plaintiffs would rely on them, and would be thereby induced not to seek advice in respect to her entitlement to, or to make application for, provision from Kenneth’s estate under Part IV of the Act.
(5)The defendant, contrary to the promises, has not made any provision for the plaintiffs from Kenneth’s estate, and, on 25 October 2009, he expressly resiled from the promises.
(6)Each of the plaintiffs was and is a person for whom Kenneth had a responsibility to make provision, and for whom the distribution of Kenneth’s estate as effected by his will does not make adequate provision for her proper maintenance and support.
(7)By reason of her reliance on the promises made to them by the plaintiff, each of the plaintiffs has, to her detriment, lost her entitlement to seek provision from Kenneth’s estate pursuant to Part IV of the Act.
(8)Accordingly, as a consequence of the promises made by the defendant, the detriment suffered by each of the plaintiffs by reason of her reliance on the promises, and the failure and refusal of the defendant to perform the promises, an equity has arisen in favour of each of the plaintiffs, in respect of the land and water rights bequeathed to the defendant under Kenneth’s will, to the extent of the plaintiffs’ entitlement to provision for proper maintenance and support under Part IV of the Act.
In response the defendant has contested each of the propositions which I have outlined above. In particular the defendant has made the following responses:
(1)He denies making any of the representations or promises alleged by the plaintiffs.
(2)If any such promises or representations were made, he denies that the plaintiffs relied on them in the manner alleged.
(3)In any event if such representations or promises were made, it was not reasonable, in the circumstances, for the plaintiffs to rely on them.
(4)If the representations or promises were made, they were subject to conditions precedent that the farming property be divided into four parts or sold, which has not occurred.
(5)Each plaintiff was not a person for whom Kenneth had a responsibility to make provision pursuant to s 91 of the Act.
(6)Further, the plaintiffs failed to make any application for provision under the Act, or to make an application to extend the time for the purposes of such a claim, before the distribution of the estate, as required by s 99 of the Act, and accordingly the plaintiffs are not entitled to relief, in equity, arising from, or subsequent to, the distribution of the estate of Kenneth.
(7)Any claim by the plaintiffs is barred by laches, acquiescence and delay.
The proceedings
Pursuant to a direction given by the Associate Justice, the parties prepared witness statements in respect of each of their proposed witnesses. It was apparent, from those statements, that there were fundamental factual issues between the parties, which rendered aspects of the witness statements an unsatisfactory vehicle for adducing the evidence, in respect of those issues, before the court. Accordingly, I required the parties to lead evidence, in a viva voce form, in respect of the issues relating to the making of the promises or representations alleged to have been made by the defendant, and in respect of the issue of reliance. I permitted the parties to rely on the parts of the witness statements, which related to the question whether the plaintiffs were persons, in respect of whom Kenneth Harrison had a responsibility to make adequate provision pursuant to s 91 of the Act.
The three plaintiffs each gave evidence, and they called, as witnesses, Eliza Harrison (the daughter of Sue) and Paul Somerville (the husband of Kathryn). The defendant gave evidence. He also called, as witnesses, Kirsty Orr, John Harrison, Robert Tamblyn (the manager of the Kerang Branch of the National Australia Bank) and Kenneth Pattison (a neighbour). A witness statement of Ian John Itter (a retired computer consultant) was also tendered in evidence.
Summary of evidence as to promises by defendant
The most substantial issue in the case, and the issue which occupied a significant proportion of the evidence at the trial, concerned the question whether the defendant made the promises, to provide for the plaintiffs from Kenneth’s estate, alleged by the plaintiffs. Each of the three plaintiffs and Paul Somerville gave detailed evidence of a number of representations made to them by Christopher, following their father’s death, to the effect that he would provide for them financially. In response, Christopher also gave detailed evidence, denying that he made any such representation to any of his sisters. The plaintiffs, Paul Somerville and the defendant were each cross-examined for a substantial period of time. Accordingly, it is necessary to summarise the evidence of each of the witnesses in some detail, in order to identify the factual issues which I must determine.
Louise Harrison was the first witness to give evidence. She stated that, in the week between her father’s death and his funeral, she was present at a discussion which took place in the kitchen of her mother’s home. Her two sisters and her brother Christopher were also present. During the conversation, her mother expressed concern as to what was to happen to her. Christopher responded by reassuring her that everything would get sorted, and that she would be looked after. He said that the position with the farm was complicated. Kathryn asked Christopher how the estate was set up, and how their mother, and his sisters, would be provided for. Christopher responded that they would all be provided for, that the estate was very complicated, but that they need not worry. In cross-examination, Louise said that, in that conversation, Christopher stated that once the “business with Andrew Harrison” was sorted “he (Christopher) would look at providing for us”. Louise stated that, before her father died, he had told her that Andrew had left the farm, and was demanding a sum of money. She said that the demand made by Andrew was a common topic of discussion in the family at that time. In her evidence, Louise stated that, based on what her brother Christopher said at the meeting, she understood that he would “do what he had to do” with the estate, and then make provision for her mother, her sisters and herself.
Following that discussion, Louise’s mother rang her from time to time in some distress, expressing concern as to what provision she would receive from the estate. As a result, Louise contacted Christopher, who reassured her, saying that the estate was complicated, and it may take some time to sort it out. He would say things like “don’t worry it will all get sorted” and “you will get looked after and I’ll provide for you”.
In the meantime, Louise and her husband had moved to Hobart. She returned to Victoria in September 2003 for a visit to her family. In a discussion, which she had with Christopher about what was happening with the estate, Christopher told her that the issue relating to Andrew was making the estate complicated.
After Michael and Louise returned to Tasmania, Louise continued to maintain frequent telephone communication with Christopher and her sisters. At that time, they were a very close family, and they were frequently in telephone contact with each other. In the meantime, Louise’s mother was contacting her, and was expressing concern about what would happen relating to the estate. In the course of Louise’s conversations with Christopher, he would say to her that “it’s all getting sorted, you do not need to worry about it”. During that time, Louise would discuss the matter with her two sisters, and in particular with Sue. On a number of occasions, they talked about how their brother Christopher had reassured them that it would all be worked out. Louise stated that, at that stage, she never doubted her brother Christopher, because she believed that he was a man of his word.
In September 2004, Louise and Michael visited Victoria for the marriage of her sister Sue. At the time, Louise had her first child, who was then a young baby. At the wedding reception, Christopher repeated his assurance to Louise that he would look after her.
During 2005, Louise maintained the same pattern of communications with her sisters and her brother. However, as time passed, she did not receive any further information concerning the administration of her father’s estate. When she spoke to Christopher, he became annoyed with her for asking him about it. In one conversation, Christopher described how hard he had worked on the farm, and said that he had done a lot for the farm, and he reiterated that things were more complicated than Louise understood. In response to that conversation, Louise sent Christopher an email dated 13 September 2005. In that email, Louise stated her view that Christopher had been given preferential treatment by her parents than the treatment given to her sisters and herself. She expressed hurt that she had not been mentioned in her father’s will, and said “All we are looking for is acknowledgment that the system is not fair”.
Christopher did not respond to that email, and Louise described it as the end of her relationship with him for many years. She visited him in Christmas 2005, and begged his forgiveness. However, in the following year, her relationship with Christopher continued to be quite strained. The relationship only improved after the death of Louise’s husband on 8 April 2007. On the next day, Christopher arrived, together with her mother and her sister Sue. Kathryn and her husband Paul were already in Tasmania. During the following week, Christopher said to Louise that he would help to provide for her sons and her. He said he would set things up for the whole family, and he would do whatever he could.
Subsequently, in September 2007, Christopher returned for another visit. At that time, it was contemplated that Christopher and Kirsty would live in Hobart. On that occasion, he said to Louise that he would provide for her sons and herself, that he would arrange trusts for her sons and herself, and that he would look at doing so for the whole family.
In cross-examination, Louise stated that, in the period after September 2007, she had discussions with Christopher about coming to live in Tasmania. Christopher stated that he was going to physically help her with her sons, and he reiterated that he would look at setting up trusts for her children and herself, and also for the rest of the family. However, subsequently, Christopher cooled again in his attitude to his sister Louise.
In her evidence in chief, Louise stated that, if her brother Christopher had not said that he was going to make provision for her, she would have sought advice as to her entitlement under the will as one of her father’s daughters. She said that she did not do so, because Christopher promised to care and provide for her sisters and herself, and that her sisters and she trusted him. She said that the first occasion, on which she knew about her father’s will, was in June 2004. Her mother telephoned Louise to say that the will had been settled, and that she (Jillian) had been given some money, but that there would not be anything for Louise and her sisters. Louise spoke to Christopher about it, and he reassured her that “It doesn’t matter, because I will look after you”.
Louise stated that she always believed that Christopher’s promises could be relied on. She changed her mind when she returned to Bendigo in December 2008, and Christopher became more distant from her. Kathryn and she began talking about seeking legal advice, and they actually did seek legal advice. However, Sue said that she should speak again to Christopher, because she believed that he would honour his word. Subsequently, however, Sue telephoned Louise, and told her that she (Sue) had spoken to Christopher, who had said that he would rather spend all the money in the estate, rather than give his sisters “one cent”.
In cross-examination, Louise stated that she never asked Christopher for a copy of the will. She knew that Christopher would be given the farm, and that her mother would receive money from her father’s estate. She was cross-examined on the basis that the further particulars provided on behalf of the plaintiffs did not refer to a number of the conversations, about which she gave evidence, and in which she stated that her brother had reassured her sisters and herself that he would be making provision for them out of their father’s estate. Louise accepted that her lawyers had given her a full opportunity to tell them everything about what Christopher had promised to her.
In cross-examination, Louise also stated that, on one occasion in 2006, her husband Michael visited Christopher in Victoria, and that, on his return, Michael had said to her that Christopher had stated that the farm dealings were very complicated, and that things would get sorted. In that conversation, Michael said to Louise “Don’t worry, it will be all okay, Christopher has to get things sorted”.
Louise agreed, in cross-examination, that, in the many emails, which she sent to her brother, she did not once refer to any of the promises or reassurances, which she stated had been given to her by her brother. She said that she did not do so, because she did not consider it necessary. She denied that, in 1999, Christopher had discussed the terms of their father’s will with her. She also maintained that, at the time of her father’s death, Andrew Harrison had made a financial claim against the estate, and that, in the meeting in her mother’s kitchen after her father’s death, Christopher had said that, once the “business” with Andrew was sorted out, he would look at providing for her sisters and herself.
Louise also said, in cross-examination, that her sister Kathryn first spoke to lawyers in 2007, and they advised her that there was nothing she could do about obtaining redress in respect of their father’s will. She said that she did not tell Christopher that Kathryn had sought legal advice, because she did not want to offend him, and that she wanted him back in her life. At that stage, her doubts, about Christopher fulfilling his promises, had been removed.
In cross-examination, Louise also denied that she and her sisters commenced these proceedings in response to a newspaper article entitled “Water Barons”, in which it was stated that the water rights, attaching to the Hopefield property, were particularly valuable. She also denied that she and her sisters had been moved to make the present claim, when they became aware that the claim brought by Andrew Harrison had been settled on the basis of a payment made to him in the sum of $1.3 million. In re-examination, she stated that she decided to commence this proceeding when, in 2009, Sue had spoken to Christopher, and had reported that Christopher would not make any provision for her sisters and herself.
The second witness was Sue Harrison. She said that, before her father died, she had gained some impression from him as to the contents of his will. In particular, in 2000, when her father was quite ill, she spent one night in hospital with him. They had a long conversation. In the course of that discussion, her father said to her that when he passed away, he trusted that Christopher would be able to continue to look after his mother, and that he would also look after his sisters. Subsequently, before his death, her father said to her that she would always receive something from the farm, if it ever wound up. During the week after her father died, Sue spent a lot of time with her siblings. On one occasion, they went for a walk together around the farm. On their return, they had a conversation in the kitchen of their mother’s house. In that conversation, her mother expressed concern about what was going to happen to her. Christopher responded with words to the effect that “That’s all sorted, Dad’s expected me to look after Mum and the girls and he’s trusted me to do that and that’s what I’ll do”. It was a short conversation, and Sue understood from it that Christopher would be providing for his mother and his sisters out of their father’s estate.
Sue further stated that, subsequently, her mother would often talk about this matter, because she was concerned that she did not have any money. In conversations, which Sue had with Christopher, she would ask him what was going on, and he would respond that “it takes time to get sorted out and it will get sorted out and Mum’s alright”. In May 2004, her mother telephoned Sue, and said that she had been left money in the will, and that Christopher had been given the farm, but that she (Sue) was not mentioned in the will. Her mother assured her that Christopher would continue to look after all of them.
Following that conversation, Sue asked Christopher why the will had been made in such a form. Christopher explained that their father had to make the will like that, because the farm was very complicated, it was a “business transaction”, and that in order for the farm to continue, their father could not have left it in their names. Subsequently, in other conversations, Christopher reiterated to her that the will was expressed in such a way, because it was a business transaction, but that their father had trusted Christopher to look after everyone, including his mother and his sisters.
Sue further stated that, in 2005, a superannuation company made an offer of $30,000,000 to purchase the whole of the farm. Sue spoke to Christopher about that offer at their mother’s house. She said that, as a result of that knowledge, she understood that she would be receiving what she regarded as her inheritance. Her recollection was that, shortly after that offer was made, Christopher ceased working on the farm.
In her evidence, Sue further stated that, in about 2006, Kathryn and Louise spoke about the possibility of bringing legal proceedings. However, Sue felt very strongly that Christopher would do the right thing, and she believed him. Sue had a closer relationship with her brother than did her sisters. Sue told Christopher that their sisters were contemplating commencing legal proceedings. In response, Christopher walked out, saying “My sisters are taking me to court, my cousin is, it’s terrible”. Sue endeavoured to explain to Christopher that her sisters had not yet consulted solicitors, but they were just talking about it. She asked him whether there was any way that they could work something out, such as giving each of the sisters a percentage, or putting a share in the farm in their mother’s name.
Subsequently, Sue and Christopher had another conversation on the telephone. She expressed concern as to what would happen to his share in the farm, if “something was to happen to him”. He responded that he had left the farm to his mother in his will, and that Sue and her sisters would ultimately receive their mother’s share of the farm. Sue responded that it was more probable that their mother would predecease Christopher. She said that they needed to have the matter worked out. Christopher told her she should go to his solicitor (Basile & Co), and put something in his will to the effect that their father’s intention was that the three sisters should each get a share. Sue responded that she could not do that, because Mr Basile was his solicitor.
Sue stated that, when she raised with Christopher the fact that her sisters were contemplating seeking legal advice, he also stated that “you know that I’ll look after you, Dad has given me this responsibility to do this, and I will look after Mum and I will look after you girls”.
Sue gave further evidence that, in April 2007, after Louise’s husband Michael was killed, Christopher spoke about setting up trusts for them to support the children. That conversation took place in Tasmania between Kathryn, Sue and Christopher. They discussed the fact that Louise’s husband did not leave any life insurance. Christopher said that when things get sorted, “We would be able to look at setting up some trust funds”.
Sue stated that, later in the year, when Christopher visited her home in Bendigo, they had a conversation in the rumpus room. Sue asked Christopher to explain his suggestion as to setting up trusts. Christopher responded that, when the farm became divided, he would set up a trust, which worked like the “Myer’s trust”, and that, from it, all members of the family would benefit. Sue spoke to Christopher about providing financial support to her daughter Eliza, who wished to go to university. Christopher stated that the trust would own the real estate, but that they would all receive an income from it, and that it would go on for their lifetime.
Sue further stated that, throughout the whole period, she believed, and relied on, Christopher’s assurances. She said that, in about 2005 or 2006, Kathryn had said that she was starting not to believe that Christopher would honour his promises, and that she was contemplating seeking legal advice. Sue responded that she believed that Christopher would honour his word. She believed that he was genuine when he stated that he had to first sort out a number of complications in the estate, and that, having done so, he would share some of it with his sisters.
Sue said that she only changed her mind about that matter on 25 October 2009. On the previous day, her sisters had spoken to her, and they had stated that they did not consider that Christopher would fulfil his promise. Sue asked her sisters to give her another opportunity to talk to Christopher, because she still trusted him. On the next day, Sue visited Christopher’s home in company with her mother. Christopher and Kirsty had friends visiting them at the time. Sue and her mother spoke to Christopher. Sue told him that their sisters were seeking legal advice, and she asked if he would be prepared to put 50 percent of their father’s estate into their mother’s name, so that it would be protected. Christopher responded by becoming very angry. He said that he would prefer to take the matter through the courts, and spend every last cent of the estate on litigation, rather than give his sisters anything. He also said that he would use every “bit of dirt” he had on Sue and her sisters. Sue then went inside and spoke to Kirsty, who responded by saying that she (Sue) just needed to focus on the outcome which she wanted.
Sue and her mother then left Christopher’s place. After she had dropped her mother at her home, Christopher telephoned her on her mobile telephone. He told Sue that she did not understand, because the issue was very complicated, and that he might need to buy a farm for himself.
Sue said that, after that conversation, she has not further spoken to Christopher. She also said that, before this proceeding began, she was aware that it was possible to challenge a will. She related an occasion in 1987, when she spoke to Christopher, and told him that she would contest her father’s will, if he did not look after her.
In cross-examination, Sue elaborated on that conversation. She said that it occurred on an occasion when she was visiting Christopher at his home, after the birth of his first child. She was speaking with Christopher and his wife about the changes, which were occurring on the farm. She said that some of her cousins were married, and there was trouble in their marriages. She said that she stated to her brother that she would contest her father’s will, if he did not leave her anything. In further cross-examination, she accepted that she might have been wrong in recollecting that her cousins were married at that time. However, she maintained that she did recollect the conversation.
In cross-examination, Sue also stated that, after her father died, she spoke with her brother Christopher about discussions, which she had with her father, and, in particular, the conversation which she had with him in hospital in 2000. Christopher responded by confirming that their father had entrusted him to care for his mother and for his sisters. She also elaborated on the conversations, which she had with her father before his death. She said that, in those conversations, her father had said that Christopher would continue working on the farm, but that he would provide for his mother and his sisters financially, emotionally and physically. At one stage, her father had said to her that her sisters and she would each receive 10 percent of the farm when it was sold. She agreed, in cross-examination, that she had not mentioned that aspect of the conversations with her father in evidence in chief. She stated that she was quite shaken at the commencement of her evidence, but she maintained that her father had said to her that interest would be approximately 10 percent, and he had added the qualification that if she lived to 80 years of age she would not get that amount. She said that her father had also stated that she would obtain her 10 percent share when the farm was sold, but that, in the meantime, Christopher would look after her financially. She said that she spoke to Christopher about the 10 percent figure, at about the time when the offer was received from the superannuation company to purchase the farm. She also stated she had discussed that aspect, of her conversation with her father, with other members of the family, and she said that it gave her sisters and herself reason to consider that, if the offer from the superannuation company was accepted, they would each receive about $800,000.
In cross-examination, Sue also confirmed that, when she spoke with Christopher about her father’s estate, she told her brother that she would be relating to her two sisters what he told her. Thus, when Christopher explained to her that their father’s will was a business transaction, she said to him that she would tell her sisters.
Sue also stated, in cross-examination, that she had never threatened to sue her brother, if he did not honour his promises, because she believed him. She did not refer to those promises in any email she had sent to him, because she trusted his word. She stated that the offer from the superannuation company was received in 2005, after Christopher had ceased working on the farm in about September 2005. When cross-examined as to the date on which Christopher left the farm, she said that she could recall that that was so, because at Christmas 2005 the family was together, and at that stage Christopher was having issues with Kathryn and Louise, and he was not then working on the farm. She denied that it was not until 2007 that Christopher told her about the offer from the superannuation company. She said that she learnt about that offer, before her brother-in-law, Michael, died. His death was an important point of reference for her recollection on this aspect of the case. First, she stated that she was living in Apollo Bay when she first learnt about the offer. However, she was living in Colac when Michael died, having moved to Colac in January 2007. Secondly, she could recall that Michael was present in discussions concerning the offer received from the superannuation company.
In cross-examination, Sue Harrison also confirmed that, at the time of her father’s death, there were conversations concerning demands made by Andrew Harrison for a substantial amount of money. She said that her father had called Andrew a “greedy sod” for making such a demand, and that her father was quite upset about it. She said that the demand made by Andrew was the subject of general talk in the family at the time.
Mr Shepherd also cross-examined Sue concerning the further particulars provided by the plaintiffs as to the conversations, in which they stated that Christopher had made promises to them to make provision for them out of their father’s estate. She stated that the occasions, specified in the particulars, were not all of the conversations which she recollected. She further confirmed that she had a conversation with Christopher, in which she was talking about a trust, in the period after her brother-in-law Michael died. In those conversations, Christopher was talking of looking at trusts. Initially, he talked about a trust for Louise’s children, and then a trust for the other members of his family. Later, in 2007, when Christopher returned from Tasmania, he told Sue that he was looking at setting up trusts for the rest of the family.
Sue was also cross-examined as to the conversation which she had with Christopher in the rumpus room of her home in Bendigo in January 2008. In that conversation, Christopher said to her that the will was a business transaction, and that their father had trusted that he would look after things. He explained that he was looking at setting up a “Myer” type of trust, in which all the family would receive an income on an annual basis. Christopher spoke about each grandchild receiving $30,000. Sue said that that remark was made in the context of Sue’s daughter Eliza, who was then wishing to go to university. Christopher said that Eliza would receive her share shortly.
Sue also stated that she had never doubted Christopher until October 2009. Previously, in 2006, when she told Christopher that Kathryn and Louise were thinking about legal advice, Christopher became angry. Sue tried to calm him down, and told him that she knew that he was going to honour his word, and do what he promised to do.
Sue also denied, in cross-examination, that, in December 1998, Kathryn had shown her their father’s will on an occasion in the kitchen of their parents’ home. She denied that, on that day, Christopher explained to Kathryn and her why her father’s will was in that form, and that he explained to her matters about the farm history, including the tough life which people had to undergo in order to save the farm after the wool crash in the late 1980s.
Sue was cross-examined extensively concerning the final meeting which she had with Christopher on 25 October 2009. She denied that she stated to Christopher that her mother was making a claim against the estate. Rather, she tried to persuade him to put 50 percent of the interest in the farm in their mother’s name, in order to protect their mother, and to protect the share of her sisters and herself. It was at that stage that Christopher stated that he would prefer to take the matter through the legal courts than to give his sisters any money. She said that she was very distressed by her brother’s attitude, and that she was in tears when she left his house with her mother. She stated that she had asked Christopher to put the interest in the farm in their mother’s name so that, if anything happened to him, her mother, her sisters and she would be looked after, and their interests would not be susceptible to a claim by Christopher’s children. She said that that was not the first occasion upon which she had raised that possibility with Christopher. Hitherto, he had stated that such a proposition was untenable.
The next witness who gave evidence was Paul Somerville (“Paul”) who is the husband of the third plaintiff, Kathryn Harrison. Paul first met his wife, and the Harrison family, in 1986. He married Kathryn in Kerang in 1992. He stated that he first read a copy of Kenneth’s will about two years ago, after the commencement of these proceedings. However, based on his knowledge of the history of the family, and conversations which he had with his wife concerning that matter, he understood that the Hopefield property had passed from father to male heir for a number of generations. Thus, he understood that on Kenneth’s death, his interest in the property would pass to Christopher.
In the week after Kenneth’s death, and before his funeral, Kathryn related to Paul a conversation, which she had with Christopher and her siblings and her mother concerning her father’s will. (I interpolate that this evidence, and other evidence of what Kathryn related to Paul, was only admitted as relevant to the reliance by Kathryn on what she was told; it was not admitted as evidence for the truth of what Kathryn told Paul). In that conversation, Kathryn said that Christopher had promised that, when the difficulties involving the farm had been resolved, he would make provision for her sisters, her mother and herself. She said that the delay was primarily due to the need to resolve the issue relating to Andrew Harrison. Kathryn indicated to Paul that she was happy with the representation made to her by her brother, and that she was content to wait until the matter relating to Andrew Harrison was resolved.
One year later, Kathryn told Paul that she had visited her mother at Freedom Fields, and that her mother had told her that she had attended a reading of the will in Kerang. Kathryn told Paul that her mother had said that there was no provision in the will for her (Kathryn). During the previous twelve months, Kathryn had been saying to Paul that Christopher had promised her that, once the issues with the farm were resolved, he would make provision for her sisters and herself, as well as for her mother.
Paul then gave evidence relating to the effect of the email, which Louise sent to Christopher in September 2005. He said that, as a result of that email, Christopher stopped communicating with both Louise and Kathryn. The two sisters felt a great emotional pain at being rejected by their brother. At about the same time, Christopher stopped working on the farm. At that time, Kathryn and Louise were discussing, in his presence, whether the will should be contested, and what legal remedies might be available. However, they did not pursue any legal redress at that stage, because they were of the view that such a step would further antagonise Christopher, and thus diminish the prospects of reconciliation with him.
Paul then gave evidence as to the occasion when, after the death of Michael Skirka in April 2007, Christopher and he drove to Rosebery to collect the personal effects of Michael. During that drive, they discussed the devastating effect which Michael’s death would have on Louise on her two infant sons. Christopher stated that he would look after Louise, and that she would not have to worry about money. They then discussed the issue relating to Andrew, and Christopher indicated that the issue was almost resolved, but that the need to fund payment of Andrew’s demands was creating financial pressure on the farm. Christopher stated that once that issue was resolved, he would look after his sisters and his mother. He spoke about dividing the farm into four parts. Christopher stated that the division of the farm would be complicated, with the land and with the water to be separated into four parts, and that it would take time.
Subsequent to that discussion, Paul related to Kathryn what Christopher had said to him. Kathryn said to him that she was reassured by what her husband told her, and, in particular, she was relieved that Christopher would honour his promises to her. Some time later, Paul also told Louise of his conversation with Christopher. In particular, he told her that Christopher had said that she (Louise) would not have to worry about money again, and that he would look after her. In response, Louise was pleased, but remained somewhat sceptical.
In June 2007, Paul and Kathryn updated their wills. They signed them at the solicitor’s office at different times. Kathryn told Paul that, after she had signed her will, she had told the solicitor, who witnessed the wills, in general terms, the history of her family and her father’s death. She made a general inquiry of the solicitor as to what options might be available to her, and, in response, the solicitor remarked that it was probably too late for her to make any application. Kathryn told Paul that the discussion was, in effect, a conversation at the door of the office, and that the advice given to her was based on the date of her father’s death, and the period of time which had passed since then.
Later in the year, Christopher appeared to become reconciled with the family, attending Paul’s 40th birthday party. However, subsequently, he again withdrew from them. He was not responding to calls made to him by Kathryn. In response, Kathryn became increasingly concerned that Christopher might not fulfil his promises to her. She talked about seeking proper legal advice, in order to ascertain whether there was a basis for her to make a claim. However, she expressed concern that, if she commenced legal action, it would forever fracture the family.
In about September 2008, Kathryn told Paul that she had telephoned a firm of solicitors, and that she had had a short conversation with them, in which she had obtained some advice. On 8 September 2008, Paul sent an email to Christopher, encouraging him to speak to Kathryn. Christopher responded by indicating that he understood that Kathryn and Louise had already started legal proceedings involving their father’s estate. On 9 September, Paul sent a further email to Christopher, stating that Kathryn had sought legal advice of a general nature in the previous week, but that she had not commenced litigation. He again encouraged Christopher to talk to his sisters. However, Christopher did not accept that advice.
In his evidence, Paul stated that he understood that Christopher’s failure to respond to his email was influential in the decision of Kathryn and Louise to commence litigation. Kathryn was also influenced by the fact that, in mid-2009, she learnt that the water rights had been transferred by her mother to Christopher. She was both surprised and angry at that. Finally, Kathryn had a conversation with Sue, in which Sue told her that Christopher had said that he would spend every last cent of the estate to prevent his sisters getting any of it. As a result, Kathryn sought legal advice from the plaintiffs’ solicitor, and, in due course, these proceedings were commenced.
In cross-examination, Paul said that he did not recall an occasion at their home in Axedale in December 1998, when Christopher attended, and explained to Kathryn and Paul what was in Kenneth’s will. He did not recall Christopher saying on such an occasion that the farm was in a serious position, and that those involved in the farm had had a tough life to try to save it after the wool crash. Paul stated that, to his knowledge, his wife Kathryn had not at that time seen her father’s will.
In respect to the conversation, which he had with Kathryn in the week after Kenneth’s death, Paul stated that Kathryn had told him that Christopher had said to her mother, her sisters and herself that, after the “business” with Andrew is settled, he would look at providing something for them. She said to Paul that Christopher had said that once the matter relating to Andrew had been sorted and his father’s estate had been sorted, he (Christopher) would make provision for them from his father’s will.
Paul further stated that he was aware that Andrew Harrison had left the farm in 2002, the year before Kenneth died. He recalled a conversation with Kenneth, in which he described Andrew as a “greedy bugger”. His understanding, then, was that when Andrew left the farm, he made a demand for money on the farm. He said that he gained that knowledge from talking to Kathryn, and also from talking to Christopher and Kenneth before his death. Later, in his cross-examination, he referred to two emails, one in April 2005, and the second in August 2005, which he received from Christopher, relating to demands, which had been made by Andrew. The latter email was tendered through Paul (and became Exhibit 27). The former email was subsequently tendered in evidence through his wife Kathryn (Exhibit E).
Mr Shepherd cross-examined Paul at some length relating to the conversation during the car trip which he had with Christopher to Rosebery shortly after Michael Skirka’s death. Paul denied that Christopher stated only that he would give moral support to his sister Louise. Rather, Paul, stated that Christopher said to him, during that trip, that Louise need not worry about money and that he (Christopher) would look after her. He also stated that, during that conversation, Christopher said that the issue relating to Andrew was almost resolved, but there would need to be some new borrowings, in order to pay Andrew out. He referred to the fact that Andrew was either suing, or had sued, the farm, and that the farm would need to borrow money to satisfy the demand made by him. During that conversation Christopher stated that he had a “plan” or a “process” to divide the farm into four parts, which was something which would need to be sorted before he was able to provide financial assistance to his sister.
Paul confirmed that, after that conversation with Christopher, he reported it to Kathryn. In re-examination, he said that he could specifically recall what Christopher had said about providing financial assistance to Louise. Michael Skirka died two days previously, and he (Paul) was concerned about Louise’s future, because Michael had been the primary breadwinner, and their two children were very young. The conversation, which he had with Christopher, reduced his concerns in that regard, because Christopher had assured him that Louise would not have to worry about money, because he and the farm would look after her.
In cross-examination, Paul also stated that he could recall that, shortly after Michael Skirka’s death, Kathryn had told him that Christopher had talked to her about establishing a trust for his sisters’ children. Kathryn indicated to Paul that she considered that idea to be unsatisfactory, and that it was a departure from the original promise, which Christopher had made to her.
In cross-examination, Paul confirmed that the first occasion, upon which Kathryn had sought any legal advice relating to her father’s estate, was in June 2007, when she signed her will. Kathryn told Paul that the solicitor had said to her that it was probably too late to make a claim. Paul said that Kathryn had delayed issuing proceedings, because she was concerned that litigation would irretrievably alienate her from her brother. Paul further stated that, after Louise sent the email to Christopher on 13 September 2005, he had conversations with both Louise and Kathryn about the advantages and disadvantages of commencing legal proceedings. He confirmed that Kathryn sought some general legal advice in September 2008. In re-examination, he said that Kathryn had obtained that advice in a telephone call, in order to gain some understanding about her legal rights. She reported to Paul that she was advised that she may have some remedies, but that she would have to attend upon the solicitor and make an appointment.
In cross-examination, Paul also stated that his recollection was that Christopher had ceased to be involved in the farm on a day to day basis from 2005. He said that, during the journey which he shared with Christopher to Rosebery in April 2007, Christopher told him about an offer which had been received some time previously from a superannuation fund to purchase the whole of the farm. Paul stated that that was the first occasion, upon which he learnt that such an offer had been made.
Eliza Harrison, the daughter of Sue Harrison, next gave evidence on behalf of the plaintiffs. She is 19 years of age, and is currently in the second year of her university course.
Eliza stated that, since her childhood she has always been very close to Christopher, and she had looked up to him like her own father. She had enjoyed a very close relationship with him until the commencement of these proceedings.
Eliza gave evidence about a conversation, which took place when she was about 12 or 13 years of age. In that conversation, Christopher and her grandmother were explaining to her mother (Sue) about a legal action by Andrew. They were upset and angry, because Andrew’s action was going to affect the farm and the family. In cross-examination, she said she was quite young at the time of the conversation, and she did not fully understand its import. However, she understood, from the conversation, that Christopher and her grandmother were annoyed, because Andrew was pursuing a legal avenue. She was also uncertain as to when the conversation occurred.
Eliza gave evidence as to a second conversation, at which she was present, and which took place in Tasmania after her uncle Michael’s death in April 2007. Eliza had travelled to Tasmania on the previous night with Christopher, her mother Sue and her grandmother. At the time of the conversation, the adults were sitting around the dining room table, and she was sitting on a couch. Louise was crying, and Christopher put his arm around her to comfort her. There was discussion about what Louise would do, and whether she should move back to Victoria. She said that she did not wish to sell her house because she wanted to have it for her two young sons. Christopher told Louise that she should not worry about her financial situation, and that he would always help her out. In cross-examination, Eliza was definite that Christopher had told Louise not to worry, and that he would look after her in a financial sense. She stated that she had a good memory of the conversation, and, in cross-examination, she was able to recall other conversations, which took place at that time.
Eliza then gave evidence about a conversation, which she overheard in February 2008, between her mother and Christopher, in the rumpus room at their home in Sullivans Road in Strathfieldsaye. Christopher had visited the house, in order to take photographs of Eliza’s youngest brother, Lochlann, who was then an infant. While Sue was talking to Christopher, Eliza was going in and out of the rumpus room. She wanted to show an email to Christopher, which she had received from her father. When she was in the rumpus room, she heard her mother tell Christopher that she was concerned about her ability to support Eliza, who wanted to study medicine at the University of Melbourne. Christopher responded that he would help to pay for Eliza’s accommodation. In response, Eliza had said words to the effect “Oh cool”. In cross-examination, she stated that, earlier in the year, before commencing school, she had lived for a time with Kathryn and Paul at their home at Candlebark Court, Axedale. However, at the time of the conversation in the rumpus room, she was then living with her mother at Sullivans Road. She said that she had entered the room, in order to speak to Christopher about the email, which she had received from her father. She said that, while she was waiting for Christopher to complete his conversation with her mother, she heard Christopher say to her mother that he would pay for her university accommodation.
The final witness, who gave evidence on behalf of the plaintiffs, was the third plaintiff, Kathryn Harrison (“Kathryn”).
Kathryn stated that, at the time at which her father died, there were ongoing issues relating to Andrew Harrison. She understood then that Andrew had left the farm, and was demanding a sum of money. Her father, Kenneth, had, in her presence, called Andrew a “greedy sod”. Her mother explained to her that Andrew had left the farm, and that he had made demands on it, and had created a degree of dysfunction, because he was the person who was going to take over from his father Noel. Kathryn also stated that, at that time, there was general conversation in the family about Andrew asking for money.
Kathryn also stated that, at the time of her father’s death, she did not know the contents of his will. She had assumed that her brother Christopher would be left the farm, because, during the previous six generations, the interest in the farm had been left to the sons. However, she believed that Christopher had made an undertaking to her father that he would look after his mother and his sisters.
Kathryn gave evidence as to a conversation, which took place, concerning her father’s estate, in the kitchen of her mother’s house, between the date of Kenneth’s death and his funeral. Her mother, Christopher, herself and one of her sisters were sitting around the kitchen table. Her mother was crying, and expressing concern because she had no money. In response, Christopher put his arms around her and said “It’s alright Mum, I’ll look after you”. He then looked over at Kathryn and her sister, and said “When the business with Andrew is settled, I will look after all of you”. Kathryn said that she understood that the estate would be complicated, and that it might take some time for Christopher to sort it out. She told her husband, Paul, about what Christopher had stated to her. She also, subsequently, talked about that matter with her sisters.
Kathryn then gave evidence about a conversation, which she had with Christopher at the family Christmas function in December 2003, at her sister Sue’s place in Buninyong. She said that, after lunch, she and Christopher had remained inside, while the rest of the family went outside. Christopher and she were having a general conversation about family matters. They talked about their father no longer being with them, and how long it would take to sort out the estate. Christopher said to Kathryn, “I’ll look after you”.
Kathryn stated that she first learnt about the effect of her father’s will in about May 2004 from her mother, on the day on which her mother had earlier travelled to Kerang, with Christopher, to see the solicitor who was acting for the estate. When Kathryn visited her mother, she said to Kathryn that she did not think that there was much in the estate for Kathryn’s sisters and her, but that Christopher had promised to look after them. Kathryn relayed that information to both Louise and Sue. They both stated to her that they were disappointed, but that they trusted Christopher. Sue told Kathryn that she had been talking to Christopher about their father’s will, and that Christopher had described it as a “business transaction”. Kathryn, in her evidence, stated that she was reassured by that advice which she received from Sue, and she believed that her father would have made her brother Christopher promise to look after her sisters and herself. She said that, in conversations which she had with her father before his death, concerning the patriarchal nature of the Harrison family, her father had said to her, “You’ll do alright Kathryn”.
Kathryn then gave evidence about an email dated 8 April 2005, which she said she had received from Christopher, in which Christopher reported that, on the previous evening, he had received a telephone call from Andrew, in which Andrew had asked for $150,000 to buy a house, his debt to be paid off, and a further sum of $250,000. Kathryn produced a printout of a series of emails, which she had found in the archive section of her computer in the previous week before giving evidence. The email, from Christopher, to which she referred, was in a sequence of emails between the three siblings, which had started with an email from Kathryn to her sisters and brother, describing a dream which she had had the previous night concerning her father.
Kathryn described how she was in frequent telephone contact with her sisters, and that, in the course of the conversations, which she had with her sisters, she would tell them any information which she had received from Christopher relating to their father’s estate.
Kathryn then gave evidence concerning the email, dated 13 September 2005, which Louise had sent to Christopher. She said that Louise had first sent the email to her, before she had dispatched it to Christopher, and that they had discussed it together on the telephone. Kathryn stated that after Louise had sent the email to Christopher, his attitude changed, and he significantly reduced his level of communication with Louise and Kathryn. In response, Kathryn sent a large number of emails to Christopher asking him to resume communication. She said that, whenever she tried to telephone Christopher, he would claim that he could not hear her on the phone, and the call would be discontinued.
Kathryn stated that, before September 2005, Christopher had told her about an offer, which had been received from a superannuation company to purchase the farm for a sum of $30,000,000. Kathryn spoke about that offer to her sisters. However, subsequently, Kathryn learnt, from her mother, that other members of the family had not accepted the proposal, and that it was not proceeding.
Kathryn stated that when Christopher stopped communicating with her after September 2005, she thought that he would not honour his previous promise to her. However, both Louise and Kathryn reassured her. In particular, Sue stated that she had been speaking to Christopher, that he was a good person, and that he would fulfil his promise.
In December 2005, Kathryn attended at her mother’s house for a family Christmas lunch. Christopher was called to the property, in order to get rid of a snake. She described how, after he had looked for the snake, he went into the kitchen, and abruptly said, “I told you girls I would look after you”, and left in a hurry in his car.
Kathryn then gave evidence as to the gathering of the members of the family in Hobart in April 2007, after her brother-in-law Michael had died in an accident. She said that, after Michael’s death, there was a lot of discussion relating to the fact that Michael had not made a will, and that he did not have life insurance. Louise was expressing concern that she would not have sufficient money. On one occasion, Kathryn had a conversation with Christopher outside the front of Louise’s house on the decking. They could see Louise inside the house, speaking on the telephone and crying. Christopher said to Kathryn that he was going to set up a trust for Louise’s children, and that he would set up trusts for all of their children. In her evidence, Kathryn stated that she felt angry about that, because that promise was different to the promise which Christopher had made in April 2003.
Kathryn gave evidence that, after her husband Paul drove to Rosebery with Christopher, in order to collect Michael’s possessions, Paul reported to her that Christopher had promised that he would look after Louise. In evidence, Kathryn stated that she was concerned because, although Christopher stated that he would look after Louise, he did not make any mention of his previous promise to look after herself and Sue. However, Sue reassured her that she still believed that Christopher would honour his promise.
Kathryn stated that, after Paul and she returned home from Tasmania, they both saw a solicitor in order to update their wills. They had been minded to do so, because of the difficulties which Louise was encountering, as a result of Michael dying intestate. After she had returned to the solicitors to sign the will, and as she was about to leave the solicitor’s office, she told the solicitor that her father had died in 2003, and asked him if it was too late to contest her father’s will. The solicitor replied that, after so many years, he thought it would be too late. Kathryn reported that advice to her sisters. However, both Louise and Sue told her that they trusted Christopher, and they believed that he would adhere to the earlier promises.
Kathryn stated that, in 2008, she was becoming more dubious about whether Christopher would honour his promise. She spoke to Louise, who was also becoming more doubtful. She also discussed her doubts with Sue. However, Sue said that she would try to talk to Christopher, because she was still communicating with him. Sue said that she believed Christopher. In 2008, Kathryn had further thoughts about taking legal action. She telephoned a solicitor, whose name she had found in a telephone book. She was told that she would need to obtain a copy of the will, and arrange for an appointment to consult with the solicitor. When Kathryn told Sue of that conversation, Sue talked her out of taking any legal action. Sue said that Christopher had been talking to her, and that she considered that he would adhere to his promise.
Kathryn said that she was, ultimately, moved to seek legal advice, when, on 25 October 2009, Sue told her that Christopher had said that he would prefer to spend every last cent of the estate on court fees, rather than giving his sisters anything.
Kathryn, in her evidence, stated that, if Christopher had not made the promises to her, to which she had referred in her evidence, she would have contested the will. She believed Christopher when he made the promise, and believed that her father would have told Christopher that he should look after his mother and his sisters.
In cross-examination, Kathryn said that, in the conversation in the kitchen of her mother’s house in April 2003 after their father died, Christopher said to his sisters “I will look at something for you”. She said that, at that time, her mother had no idea what had been left to her in the will, and that she was distressed about her financial situation. She disagreed that, at that time, Christopher was simply stating that he would support his mother and his sisters emotionally. She agreed that she had not, in any subsequent email or letter, which she had sent to Christopher, referred to the promise, which Christopher made to her on that day. She also agreed that, at no time before 25 October 2009, did she mention that promise to Christopher. She said that she did not need to do so, because he reminded her of the promise in a couple of conversations, and she believed that he was a man of integrity.
Kathryn was cross-examined about her evidence that, in that meeting, in April 2003, Christopher said that he would look at providing for his sisters after the “business” with Andrew was settled. She said that she believed that Andrew Harrison had made financial demands after leaving the farm in 2002. She agreed that he had not, in 2003, commenced legal proceedings. However, by that time, he was making demands. She stated that her belief, relating to that matter, was based on what she had been told by Christopher, her mother and her sisters at about that time. In respect of her evidence, that she had heard her father refer to Andrew as a “greedy sod”, she agreed that she had not made any reference to that matter in the witness statement, which she had prepared for this case. She said that she had not considered that her father’s comment to her, concerning Andrew, had relevance to the promise, which she said that Christopher had made to her.
In cross-examination, Kathryn confirmed that she assumed that Christopher would be left the farm, because that had been the practice of previous generations of the Harrison family. However, she had assumed that she would be paid something from the estate, and that Christopher had made a promise to that effect to their father. She said that, in the year before he died, her father had said to her “You’ll do alright”. She agreed in cross-examination that her father had not said anything to her that if the farm was sold she would get 10 percent of it. She agreed that, when Christopher’s marriage to Jacqueline failed in 1998, her father was concerned that Jacqueline might be able to have an access to a share of the farm, by making a claim against Christopher. Thus, she had expected Christopher to be left the farm, but she had always expected that some monetary provision would be made for her sisters and herself from their father’s estate.
Kathryn also denied that, in December 1998, she had a conversation with Christopher, in which he told her that their father had made a will, and that she would not get much out of it. She denied that, at Freedom Fields in December 1998, Christopher had directed her attention to a copy of their father’s will on the top of the microwave oven in the kitchen, and she denied that she read it at that time. She also denied that she showed a copy of the will to Sue. In addition, she denied that, in late December 1998, Christopher had visited Paul and herself at their house in Axedale, and discussed the will with her.
Mr Shepherd cross-examined Kathryn about the promises, which she alleged that Christopher had made to her on other occasions. In particular, she reiterated, in cross-examination, her evidence concerning her conversation with Christopher after the family’s Christmas lunch at their sister Sue’s home in Buninyong in December 2003. She said that Sue was showing all the other members of the family a subdivision, which she was intending to undertake. She was also cross-examined by Mr Shepherd about the comment, which she said Christopher made, when he attended at their mother’s house in December 2005, when other members of the family had gathered for Christmas lunch. She said that, after attending to try to find the snake which had been sighted at the property, Christopher entered the kitchen. He was quite heated, and he said “I would look after you girls”. She said that she understood that he had inferred, from Louise’s email of 13 September 2005, that they were seeking legal advice. However, she was unable to say why she thought that Christopher had drawn that inference at that time. She said that she had not, at that time, sought any legal advice. She said that, by 2006, when Christopher started to cut her out of his life, it crossed her mind that she should make a claim against the estate. However, she still expected him to fulfil the promise which he had made to her. Her sisters had reassured her that she should trust Christopher. She confirmed that the first occasion, upon which she sought any form of legal advice, was in June 2007, when her husband and she were updating their will. She specifically denied that, at the time at which Louise sent her email of 13 September 2005, she and Louise were discussing whether they should institute legal proceedings against their father’s estate.
Kathryn was taken, in cross-examination, to a number of emails which she sent to Christopher between November 2005 and February 2006, in which she was seeking to re-establish contact with her brother. She agreed that, in none of those emails, did she refer to the promises, which Christopher had made to her about looking after her out of her father’s estate. She denied that, in those emails, she was concealing the fact that she had already sought legal advice, because she did not have any legal advice at that time.
Kathryn was also cross-examined about the events, which occurred after her brother-in-law Michael died in April 2007. She reiterated that Christopher had said to her that he was going to set up trusts for the children of his sisters. She had felt angry at that time, because that was a change from his original promise. However, she agreed that she did not express that anger to Christopher. She said that their relationship was already damaged, and she did not wish to cause a further rift at that stage. She said that, after Paul had driven with Christopher to Rosebery to collect Michael Skirka’s belongings, Paul reported to her, that Christopher had said that he would look after Louise. She confirmed, in cross-examination, that Paul did not say to her that Christopher had said that the farm was going to be divided into four parts, and that Christopher would make provision for her sisters and herself and her mother, once the assets of the estate had been separated. Kathryn also stated that, in 2007, that it became clear to her that Christopher was not going to honour his promise of looking after his sisters from the estate. However, her sisters persuaded her that Christopher would honour his promise, but she was really starting to have doubts about that by that stage.
“… it would be quite wrong to be unrealistically rigorous when applying the ‘clear and unambiguous’ test. The court should not search for ambiguity or uncertainty, but should assess the question of clarity and certainty practically and sensibly as well as contextually. … At least normally, it is sufficient for the person invoking the estoppel to establish that he reasonably understood the statement or action to be an assurance on which he could rely.”[61]
[59][2009] 1 WLR 776.
[60]794 [56] (Lord Walker), 801 [84]-[86] (Lord Neuberger).
[61]Footnote above, 801 [85].
Thus, it is clear from the authorities that, in order to constitute the basis of a proprietary estoppel, a promise, and the expectations resulting from it, may fall substantially short of the precision which is required to constitute the basis of an enforceable contract at law. Rather, the question of the uncertainty or ambiguity of a promise is relevant to issues relating to reliance, the reasonableness of reliance, the nature of the expectations of the promisee, the awareness of the promissor of the reliance of the promisee, and the nature of the detriment sustained by the promisee, if the promise is not adhered to. At each of those levels, the terms in which the promise was expressed, and the specificity with which it was defined, may bear on the question whether, in all the circumstances, it would be unconscionable for the defendant not to adhere to the promise found by the court.
In particular, the uncertainty or vagueness of a particular promise may affect the question whether, in fact, the promisee relied on it, and, whether the expectations of the promisee were truly aroused by the promise. A promise may be so vague, indeterminate or inconsistent that it would be unreasonable for the promisee to rely on it. Alternatively, the promise may be expressed in such indefinite terms that the promissor could not be expected to appreciate that the promisee was relying on it to his or her detriment. In addition, the lack of precision of a promise may impact on the measure of equity requisite to address and vindicate the unconscionable departure from the promise by the promissor.[62]
[62]Jennings v Rice & Ors (above, [50].
In addressing this aspect of the case, it is important to note, first, that the promises, which I have found that Christopher made to the plaintiffs, related to specific property, namely, the interest in the Hopefield property, and the associated water rights, which were bequeathed to Christopher by Kenneth. The provision, which he promised to make for the plaintiffs, was either expressly, or by necessary implication, stated to be provision which would be made out of that property.
Further, in assessing the “quality” of the promises made by Christopher to his sisters, and the reasonableness of their reliance on those promises, it is important to bear in mind the context in which they were made.
The plaintiffs and the defendant had a long, shared background as a close and mutually supportive family. The plaintiffs trusted their brother, as members of a close family should. By April 2007, Kathryn and Louise were contemplating taking legal action in respect of Kenneth’s estate. However, it would seem that the tragic death of Michael Skirka intervened. Notwithstanding his then estrangement from his two younger sisters, Christopher hastened to the side of Louise at the time of her distress. The various promises, which Christopher made to the plaintiffs, in April 2007, in Hobart, were not made in isolation from each other. Rather, they were made in the course of an emotional family gathering, in which the primary concern, particularly of Christopher, Sue, Kathryn and Paul Somerville, was the plight of Louise as a result of her sudden and tragic loss of her husband.
Some of the promises, made by Christopher at that time, were particularly vague and indefinite. For example, Louise’s account of them was that Christopher promised to help to “provide” for her and her sons. On the other hand, Christopher spoke to Sue and to Kathryn, separately, about setting up trusts for the children of his siblings, and, presumably, his own children. During their long drive to Rosebery, he told Paul Somerville that he would provide for Louise, and that, when matters on the farm were sorted, he would make provision for all his sisters. The totality of the statements made by Christopher, taken together, constituted, in my view, a representation by him that he would make provision for his sisters, and particularly their families, out of his share of his father’s estate. While the promises were couched in quite general terms, nevertheless, by referring to the concept of a trust, Christopher demonstrated that he was giving serious consideration to the means by which he would make that provision for his sisters and their families. Certainly, in the context in which the promises were made, it is clear that Christopher was undertaking to make provision of some substance for his siblings and their families.
The same observations apply to the representation, which I have found Christopher made to Sue in her premises in Sullivans Road, Strathfieldsaye in January 2008. In that conversation, as I have found, Christopher explained to Sue that he would set up a trust, from his interest in the farm, and from which all family members would benefit. I am also satisfied that, on that occasion, Christopher represented to Sue that, in that way, he would be able to assist Eliza financially with her university fees. In that conversation, Christopher was, to an extent, addressing the nature of the provision, which he would make for his siblings, with a greater degree of precision, particularly in respect of the form by which the provision would be provided for his sisters. The fact that Christopher spoke, specifically, in terms of a trust, was calculated to convey that Christopher had, at the least, turned his mind to the means by which that provision would be made.
The fact that Christopher did not specify the dimension of that provision, or the precise nature of it, would not disqualify the promises from being sufficient for the purposes of proprietary estoppel.[63] In that respect, the promises made by Christopher were no less specific than the first promise made to the plaintiff in Flinn v Flinn, which I have discussed above, or the promises, which formed the basis of enforceable rights under the doctrine of proprietary estoppel in Jennings v Rice & Ors.
[63]Plimmer v The Mayor, Councillors and Citizens of the City of Wellington (1884) 9 App Cas 699, 713; Sullivan v Sullivan & Ors [2006] VSCA 312, [16] (Handley JA).
It is important to remember that the promises, in this case, were promises made by a brother, to his sisters, who trusted him. By stating that the provision, which he would make, would be in the form of a trust, Christopher conveyed that the promises, made by him, were not the product of a moment’s idle thought. Although Christopher did not specify the amount of the provision, which he would make, clearly he did not intend that provision would be nominal or derisory. Rather, in the context in which they were made, the promises by Christopher would have been reasonably understood to be promises of a fair and reasonable provision, having regard to the size and nature of Kenneth’s estate, and the respective circumstances of the plaintiffs and the defendant. In those circumstances, I am satisfied that it was reasonable for the plaintiffs to be induced by the promises, which I have found that the defendant made to them, so as to refrain from commencing legal proceedings in respect of Kenneth’s estate, before they were precluded from doing so, as a result of the final distribution of the estate on 29 July 2008.
I therefore reject the submission, made by Mr Shepherd on behalf of the defendant, that the promises made by the defendant lack sufficient “quality” for the purposes of proprietary estoppel.
Mr Shepherd also submitted that the promises, which were made by the defendant, were to make provision for the plaintiffs, if and when the property was either sold or divided. Neither of those events had occurred. Accordingly, he submitted there has been no departure by Christopher from the promises made by him.
There are two answers to that submission. First, contrary to the submission of Mr Shepherd, not all the promises, made by Christopher, were expressed to be conditional upon the farm being sold or divided. Certainly, the assurances, which he gave to Paul Somerville in the road trip to Rosebery, were expressed to be subject to that condition. However, the statements which he made to Kathryn and Sue in Hobart, and the statements which he made to Sue at the Sullivans Road property in January 2008, were not expressed to be subject to that condition.
Secondly, on 25 October 2009 Christopher made it plain to Sue that he would not be making any provision for her, or her sisters, from the farm. I am satisfied that, when he spoke to Sue, he well understood that she would relate, what he told her, to Kathryn and Louise. In that conversation, Christopher made it plain that he would not, in any circumstances, be providing for his sisters from his interest in the farm. Subsequently, he continued to deny that he made the promises, which are the foundation of the plaintiffs’ claim in this case. In those circumstances, the defendant has unequivocally evinced an intention not to adhere to the promises which he made to his sisters, and on the basis of which they desisted from seeking relief under Part IV of the Act, before the final distribution of the estate. Accordingly, the plaintiffs are not precluded from seeking relief under proprietary estoppel, on the basis that the promises made to them by Christopher were subject to conditions, which have not yet been fulfilled.
The next submission made by Mr Shepherd was that, at the time at which the defendant made the promises, he was the executor of the estate of Kenneth Harrison. As such, his duty was to uphold the executor’s will, and it was not for him to give away the estate in terms which were inconsistent with the provisions of Kenneth’s will. The short answer to that proposition is that, at that time, Christopher was also the primary beneficiary under Kenneth’s will. Although the property had not yet been distributed to him under the will, nevertheless it is clear that he regarded himself as the then owner of his father’s share in the Hopefield farm. Indeed, the letter, which his solicitors wrote to Ian Harrison in December 2006, described him as a joint owner of the farm. The promises, which he gave to his sisters at that time, were made in his capacity as the heir to his father’s interest in the Hopefield property.
Mr Shepherd further argued that, at the time at which Christopher made the promises, the plaintiffs did not inform him as to the legal action, which they were then contemplating against him. In my view, that point does not advance the case of the defendant. First, it was not necessary for the plaintiffs to inform Christopher of the precise nature of the legal action, which they were contemplating instituting against him. It was sufficient for Christopher to know and understand that, in general terms, by making the promises, he might thereby induce them not to bring proceedings in relation to their father’s estate. Further, and in any event, in his evidence, Christopher stated that, in 1998, he, together with Andrew and Ian Harrison, had obtained specific legal advice as to the rights of other persons to challenge their fathers’ wills. In those circumstances, when Christopher made the promises to the plaintiffs, he well understood the nature of the rights which he was inducing them to forego.
Thus, for the reasons which I set out above, I am satisfied the representations, which I have found that Christopher made to his sisters between April 2007 and July 2008, were promises to the effect that he would confer on them an interest in the property, which he had inherited from Kenneth’s estate, namely, Kenneth’s share of the Hopefield farm and the attached water rights. As I have already stated, I am satisfied that the plaintiffs each were induced by those promises not to make an application for provision under Part IV of the Act, and that they acted reasonably in relying on the promises in that way. I have concluded that, if they had made such an application between April 2007 and July 2008, they would have been granted an extension of time within which to make that application. Further, I am satisfied that they would each have succeeded in such a proceeding, so that orders would have been made in their favour for provision out of their father’s estate. Thus, as a consequence of Christopher resiling from the promises, which I have found he made to the plaintiffs, they have suffered a detriment, consisting of the loss by them of their entitlements to provision from Kenneth’s estate pursuant to Part IV of the Act.
Accordingly, I am satisfied that each of the plaintiffs have established a right to relief, in equity, based on the principles of proprietary estoppel.
Relief
The plaintiffs do not seek, by way of relief, enforcement of the promises given to them by the defendant, or the expectation created by them. As I have already observed, in cases of proprietary estoppel, the prima facie position is that the court, ordinarily, enforces the expectation arising from the relevant promises or representations.[64] In each case, the relief is primarily designed to redress the effect of the unconscionable conduct of the defendant in departing from the promises on which the plaintiff has relied. In most cases of proprietary estoppel, that redress is most effectively provided by enforcement of the promise and the expectation arising from it. However, it is clear from the authorities that the prima facie approach, of enforcing the expectation, is not an inflexible rule.[65] In particular, as Robert Walker LJ pointed out in the passage from his judgment in Jennings v Rice[66], which I have set out above, enforcement of the expectation may not be appropriate, where the expectation is uncertain or imprecise.
[64]Donis & Ors v Donis (2007) 19 VR 577, 588 [32] (Nettle JA); Delaforce v Simpson-Cook [2010] NSWCA 84, [3] (Allsop P), [56], [63] (Handley JA).
[65]Jennings v Rice & Ors [2002] EWCA Civ 159; Giumelli & Anor v Giumelli (1999) 196 CLR 101, 123-4; Sullivan v Sullivan & Ors [2006] NSWCA 312, [27].
[66][2002] EWCA 159, [47].
In the present case, the relief, which is sought by the plaintiffs, is the provision which, I am satisfied, would have been made in their favour, if they had made an application for relief under Part IV of the Act. That relief is, on the findings which I have made, relief which would entitle each of them to a proportionate part of the interest held by the defendant in the Hopefield farm and the associated water rights.
It is, perhaps, no coincidence that the relief, which they would have obtained under Part IV of the Act, would not be inconsistent with the type of provision which Christopher was, in a broad sense, promising to make for the plaintiffs out of Kenneth’s estate. Ultimately, the gravamen of Christopher’s promises was that he would make proper provision for his sisters, out of the estate of his father. As I have already noted, the substance of the promise must be understood in the context of a family setting, in which the parties had some appreciation of their father’s interest in Hopefield, of Christopher’s contribution to it, and of the respective financial means and needs of the plaintiffs and Christopher. In the absence of specification by Christopher of the amount of provision, promised by him to the plaintiffs, it might be inferred that he had intended, and had conveyed to the plaintiffs, that he would make reasonable provision for them from their father’s estate taking into account their respective circumstances.[67] In that way, the measure of provision, to which the plaintiffs would have been entitled under s 91(1) of the Act, is by no means inconsistent with the type of provision, which, it was envisaged, would have been made in favour of the plaintiffs, if Christopher had adhered to his promises.
[67]Cf Australian Crime Commission v Gray & Anor [2003] NSWCA 318, [183]-[187] (Ipp JA); Accurate Financial Consultants Pty Ltd & Anor v Koko Black Pty Ltd & Ors [2008] VSCA 86, [181] (Dodds-Streeton JA).
Thus, I am satisfied that the nature of the relief, sought by the plaintiffs in this case, would not be unfairly disproportionate to that which the plaintiffs would have obtained, if Christopher had adhered to the promises which he made to them between April 2007 and July 2008. An advantage of defining the relief in terms of the detriment sustained by the plaintiffs is that, in that way, the court has an appropriate framework within which to formulate the relief. Furthermore, the type of provision, which is made under s 91 of the Act, has the advantage of doing justice to the defendant, by preserving his rightful entitlement under his father’s estate, while at the same time only interfering with the testator’s freedom of testamentary disposition to the extent to which it is necessary in order to ensure that justice is done to each of his three daughters.
Based on that analysis, I am satisfied that the appropriate relief in this case, therefore, would be for orders to be made in favour of the plaintiffs, whereby Louise would derive a 15 percent interest, Sue would derive a 10 percent interest, and Kathryn would derive a 5 percent interest, as tenants in common, of the interest held by Christopher in the Hopefield property, and in the water rights also held by Christopher. As I have already foreshadowed, the making of such orders in favour of the plaintiffs would need to take into account the legitimate interests of third parties, including the National Australia Bank. In addition, by assuming rights to the Hopefield property, each of the plaintiffs will be required to assume, or alternatively to indemnify Christopher in respect of, a proportionate share of the burden of the debt owed to the National Australia Bank.
In final submissions, counsel suggested that I should not proceed to specify the precise terms of the orders which should be made, if I were to find in favour of the plaintiffs in this case. As I have indicated, it would not be possible for me to do so, without, first, having heard from the National Australia Bank. I shall therefore defer from pronouncing final orders in the case until counsel, the National Australia Bank, and any other interested party, has had the opportunity to be heard in relation to the formulation of such orders.
Summary of conclusions
For the reasons which I have set out above, I have reached the following conclusions:
(1)Between April 2007 and July 2008, the defendant made promises to the plaintiffs that he would make provision for them from the estate of their father, Kenneth Harrison, deceased. I am not satisfied that the defendant made any such promises to the plaintiffs before April 2007.
(2)At the time at which the defendant made the promises to the plaintiffs, the defendant knew that the plaintiffs were contemplating commencing proceedings to contest the dispositions made in the will of Kenneth Harrison, and he made the representations to the plaintiffs in circumstances in which he was aware that they might induce the plaintiffs not to institute such proceedings.
(3)The plaintiffs were induced by the promises, which I have found the defendant made, not to commence proceedings for provision from Kenneth Harrison’s estate before the distribution of the estate was completed on 29 July 2008, and the plaintiffs acted reasonably in so relying on the promises made to them by the defendant.
(4)If the plaintiffs had sought to issue proceedings, under Part IV of the Act, between April 2007 and July 2008 –
(a)They would have each succeeded on an application, under s 99 of the Act, for an extension of time within which to bring such a proceeding;
(b)In such a proceeding, the Court would have ordered that provision be made out of the estate of Kenneth Harrison for the proper maintenance and support of each of the plaintiffs as follows –
(i)the Court would have awarded that the first plaintiff, Louise Harrison, be entitled to a 15 percent interest, as tenant in common, in the share of the estate of Kenneth Harrison in the Hopefield property and the attached water rights.
(ii)the Court would have ordered that the second plaintiff, Sue Harrison, be entitled to a 10 percent interest, as tenant in common, in the one quarter share of Kenneth’s Harrison’s estate in the Hopefield property and the attached water rights.
(iii)the Court would have ordered that the third plaintiff, Kathryn Harrison, be entitled to a 5 percent interest, as tenant in common, in the one quarter share of Kenneth Harrison’s estate in the Hopefield property and the attached water rights.
(5)Accordingly, as a consequence of relying on the promises made to them by the defendant between April 2007 and July 2008, the plaintiffs have each lost their entitlement to provision from the estate of Kenneth Harrison pursuant to Part IV of the Act.
(6)Applying the principles of proprietary estoppel, the plaintiffs should each be granted relief, entitling the first plaintiff (Louise Harrison) to a 15 percent interest, the second plaintiff (Sue Harrison) to a 10 percent interest, and the third plaintiff (Kathryn Harrison) to a 5 percent interest, as tenants in common with the defendant, of the interest held by the defendant in the Hopefield property and in the associated water rights.
When counsel have had the opportunity to read these reasons for judgment, I shall hear counsel, and any other interested party, on the appropriate orders which should be made for relief in this case, and on the question of costs.
Harrison v Harrison [2011] VSC 459
Australian Communications Corporation v Coles Group Ltd [2011] VSC 490
23
3
0