Kleber & Kleber

[2007] FamCA 749

FAMILY COURT OF AUSTRALIA

KLEBER & KLEBER [2007] FamCA 749

FAMILY LAW - ACCRUED JURISDICTION – Claim by parties’ son to farm and farm assets, dismissed – Proprietary estoppel – Remedial constructive trust.
FAMILY LAW - PROPERTY – s.79 application – Agreement on contributions and s.75(2) factors

Family Law Act 1975 (Cth), ss.79, 75(2)

Warby (2002) FLC 93-091
Flinn v Flinn (1999) 3 VR 712
Giumelli v Giumelli (1998-1999) 116 CLR 101
Gillett v Holt (1998) 3 All E.R. 917
Taylor v Dickens (1998) 1 F.L.R. (UK) 806 

HUSBAND: Mr Kleber

WIFE: Mrs Kleber

INTERVENOR: Travis Kleber

FILE NUMBER: MLF 18 of 2006

DATE DELIVERED: 27 July 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Albury

JUDGMENT OF: Brown J

HEARING DATE: 27, 28 February and 1, 2 March 2007

REPRESENTATION

COUNSEL FOR THE HUSBAND: Ms. Wheeler

SOLICITOR FOR THE HUSBAND: Kell Moore Solicitors Pty. Ltd

COUNSEL FOR THE WIFE: Mr. Harper

SOLICITOR FOR THE WIFE: Harris Lieberman

COUNSEL FOR THE INTERVENOR: Mr. Blackman

SOLICITOR FOR THE INTERVENOR: Adams Leyland

Orders

1. That the amended response filed by the intervenor on 27 February, 2007 be dismissed.

1. That if the husband and wife agree on a form of orders to give full or partial force and effect to the interlocutory judgment published this day (called “the judgment”) they file a minute of such proposed orders on or before 20 August, 2007.

1. That if the husband and wife are unable to agree on a form of orders to give effect to the judgment, or are only able to agree on a form of order to give partial effect to the judgment, then on or before 20 August, 2007 :

   (a)each file a minute of the orders proposed by him or her to give full effect to the judgment;  and

   (b)each file any submission which he or she seeks to make in support of the orders proposed by him or her, and on the coversheet of such submission endorse the date on which it was served on the other party.

1. That if the husband or wife seek to file any submission in response to a submission filed pursuant to paragraph (3)(b) hereof, he or she file such submission on or before 27 August, 2007 and on the coversheet of such submission endorse the date on which it was served on the other party. 

1. That the husband and wife have leave, if agreed by both, to extend a date contained in paragraphs (2), (3) and (4) hereof  PROVIDED THAT  :

   (a)no such extension shall exceed, in each case, two months;  and

   (b)within 48 hours of any agreement to an extension, the solicitors for the husband and wife advise the associate to the Honourable Justice Brown by email addressed to her at ...  of the extended date.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Brown delivered this day will for all publication and reporting purposes be referred to as Kleber & Kleber

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 18  of 2006

Mr Kleber

Husband

And

Mrs Kleber

Wife

And

Travis Kleber
Intervenor

REASONS FOR INTERLOCUTORY JUDGMENT

1. In 1966 Mr and Mrs Kleber married.  They lived together until 13 October 2005 and raised four children. K was born in 1968, S in 1970, Travis in 1975 and L in July 1978.  The husband is now 63 and the wife 60.

1. The proceedings before me relate to the husband and wife’s competing applications for final property orders and an application brought by their son, Travis, for an order that they hold all their interests in a farming property known as “Argyll” and in the nett assets of the Kleber Family Trust on constructive trust for him, and consequential relief. 

2. As many of the witnesses have the same surname, I will refer to the parties as the husband, wife and Travis, and to other family members by their first names.

1. In broad terms, the husband conceded Travis’ claim and did not oppose the orders sought by him.  He sought that the balance of the nett matrimonial assets be divided equally between him and the wife.  The wife sought that Travis’ application be dismissed and that the nett assets of the husband and wife be divided equally between the parties.  If Travis were successful she sought half the nett assets remaining and spousal maintenance of $1,136 per week.

EVIDENCE

1. Findings are made on the balance of probabilities, having regard to the evidence adduced and my observations of the demeanour of witnesses.  In what follows, statements of fact constitute findings of fact.

1. The wife relied on an amended application for final orders filed on 2 February 2007, and an affidavit and a financial statement sworn by her and filed on 2 February 2007.  She also relied on affidavits of the following:

   ·Their daughter, K (now …) sworn on 30 January 2007 and filed on 2 February 2007; and

   ·Their son, S, sworn on 31 January 2007 and filed on 2 February 2007.

2. The husband relied upon his amended response filed on 28 February 2007, a financial statement sworn and filed on 9 June 2006 and an affidavit and financial statement sworn and filed by him on 5 February 2007.

1. Travis relied on an amended response filed by him on 27 February 2007, an affidavit sworn by him on 1 February, 2007 and filed on 2 February, 2007 and a financial statement sworn on 1 February, 2007 and filed on 2 February, 2007.  He also relied on an affidavit sworn by his wife, …, on 1 February, 2007 and filed on 2 February, 2007.  Pursuant to an order made by me on 28 February, 2007, Travis filed a minute of the specific orders sought by him on 1 March, 2007.  With leave, a number of amendments were subsequently made to that minute, and a copy carrying those amendments, is annexed to these reasons for judgment, marked “A”.

1. In addition, Mr G, a certified practicing valuer, was appointed as a single expert witness to provide a valuation of the plant and equipment located at Argyll and Mr D, a certified practicing valuer, was appointed as a single expert witness to provide valuations of Argyll and of a real property at “the SC street property”.  No party sought to contest those valuations.

1. The parties also submitted a list of assets on which were noted the valuations advanced by the husband, wife and intervenor, and the agreed valuations.  A copy of that document is annexed to these reasons, marked “B”.  The figure highlighted in pink ($40,000) relates to farm deposits retained by the wife.  While the figure was agreed, there was no agreement as to whether that sum should be added back to the asset pool. 

1. The property known as Argyll is described in a number of Certificates of Title.  Five relate to part of the property called, by all parties, the house block, of which the husband is the registered proprietor.  All of the buildings on Argyll are located on the house block, together with five of the nine centre pivot fields, which together make up approximately 64.75 hectares.  The total area of the house block is about 281.15 hectares and its value was agreed at $1,800,000.  Mr. D’s evidence was that it is very likely the house block could be sold separately to the remainder of Argyll.

1. The valuation of the house block includes the house, irrigation bore pumps, motors, centre pivot irrigator and underground pipes, all stock and domestic water supply pumps, wind mills, motors, tank, troughs, three overhead shearing units in the woolshed, the silos and an assumed subsurface water entitlement of 486 megalitres per annum. 

1. The remainder of Argyll, described in six Certificates of Title, has a total area of about 579.10 hectares.  It has no structural improvements but does have a bore and four centre pivot irrigation fields.  Its value was agreed at $3,000,000.  Again, the valuation includes an assumed subsurface water entitlement of 486 megalitres per annum.  The wife is the registered proprietor of a small section of the remainder of Argyll and the balance is registered in the husband’s name.  Another section of the original purchase was registered in the husband’s father’s name and subsequently sold.  In the attached copy plan of subdivision marked “C” (tendered as exhibit H1) the house block is coloured pink, the portion registered in the wife’s name coloured green and the large white section (edged in pink and green) is the land registered in the husband’s name.  The part edged in orange is the land initially registered in the name of the husband’s father, which was subsequently sold.

1. The husband presented as a decent and hard working man, committed to farming in general and to farming Argyll in particular.  The evidence leaves me in no doubt that, from the time the litigation commenced, his focus was on keeping Argyll.  I must find that he was prepared to tailor his applications and evidence to suit the outcome he sought, which was keeping Argyll to be farmed by him and Travis. 

1. In his response, filed 9 June 2006, the husband sought that the wife assign to him or his nominee her shareholding in Argyll (“S”) Pty Ltd, resign from all offices in the company, assign the whole of her interest in the family trust, and transfer to him the whole of her interest in the farm property known as Argyll Part 2.  He sought that the company, as trustee of the family trust, assign to the wife the debt due to the family trust by S in the sum of $118,332, that the “SC street property” be transferred to the wife and that he pay her an additional sum of $800,000.  He also sought that the parties’ superannuation interests “be adjusted to reflect the position of equality”.  As is apparent, nowhere in those orders was there any acknowledgement that anyone other than the husband and wife had an entitlement to the matrimonial assets.  There is no mention of any entitlement of Travis, by way of constructive trust or otherwise.  Cross-examined, the husband agreed that one reason he sought those orders was that it would enable him to keep the farm.

1. On 12 December 2006, Travis filed an application seeking leave to intervene in the proceedings.  Having been granted leave, he filed a response on 2 February 2007, in which he sought a declaration that the husband and wife held all of the farming properties on a constructive trust for him, that Argyll (“S”) Pty Ltd held all of the assets of the family trust on constructive trust for him, that the husband and wife transfer to him all their interest in the whole of the farming properties, and that he be substituted for the husband as appointer of two named family trusts. 

1. The husband agreed that once Travis intervened in the proceedings he understood that Travis sought the whole of the farm and the whole of the farming business, and that he (the husband) was prepared to agree to that.  He agreed this was because he wanted to keep the farm in the family but conceded he did not really think Travis had an entitlement at that time to the whole of the property and farming assets, which constitute the significant part of the husband and wife’s assets. 

1. On 27 February 2007, Travis filed an amended response.  In that he sought the same declarations and substitution as appointer, together with an order that the husband and wife transfer to him their interest in the land known as the house block, of approximately 500 acres, together with all fixtures and improvements.  He also sought an order that he be responsible for and indemnify the husband and wife against liabilities in respect of certain leases and loans, and that the husband and wife discharge the loan accounts of S and K in the family trust.

1. The husband’s amended response was filed on 28 February, 2007 after counsel for Travis had advised the Court the previous day (in the context of a discussion about circuit business and the likely start of the trial) that Travis proposed to amend his application to seek the immediate transfer only of the house block, rather than the whole of the real property which makes up Argyll, and after Travis filed his amended response.  In that amended response the husband sought orders consistent with Travis’ reformulated claim.  That is, he supported an order that he and the wife held the whole of the farm and the farming business on a constructive trust for Travis, an order that Argyll (“S”) Pty. Ltd. held the farming assets of the family trust on a constructive trust for Travis and orders by way of remedy to allow Travis to receive the house block and the farming assets held by the trust, subject to certain liabilities. 

1. The husband conceded that, as his father had done before him, he had hoped to keep farming even after his theoretical retirement.  He hoped to be able to have the same career as his father.  He agreed that if the outcome of the litigation meant he could keep the house block, or a bit more than the house block, he would be able to keep farming and, in those circumstances, it would be fair for him to leave the house block to Travis. 

1. The husband saw Travis’ entitlement, at least in June 2006, as being “in the time and the improvements and work that he had done on the farm”;  in his oral evidence there was nothing to suggest that he believed Travis’ entitlement had arisen as a result of representations or promises made by him and the wife after they signed wills on 11 September, 2000.  He saw it as fair that Travis get something;  he saw himself as having some sort of moral obligation to Travis.

1. Having observed Travis in the witness box I have little confidence in his capacity for objective recollection if he believed an answer would affect the outcome of the case.  It was clear that he saw an alleged meeting in September 2000, and his alleged knowledge of the specific contents of his parents’ wills at that time, as central to his case, along with evidence of his hard work and commitment during his time on the farm.  To shore up those twin planks he was prepared to embellish, exaggerate and, at times, lie.  I am satisfied he exaggerated his managerial and decision making roles on the farm, at the expense of the husband;  at times during his evidence one could be forgiven for thinking that the husband played little or no role on the farm in the years prior to his move to “the SC street property” in 2004. 

1. It is probable that Travis did not understand the importance to his case of evidence which went to the question of reliance upon the alleged promises and the concept of detriment.  Answering questions which went to these issues, he appeared much more relaxed and candid;  his demeanour changed markedly and he appeared less tense, strained and careful.

1. An example of this is the disparity between his affidavit evidence and his oral evidence in relation to his alleged reliance on two alleged promises, one made by his father in 1998 and one made by both parents in September 2000.  In his affidavit he swore that it was because of these promises that he was prepared to remain working on the farm.  Asked about his intentions to leave the farm, his oral evidence was that in 1997 he had no plan to leave.  That remained the case after the first conversation with his father in 1998 and the conversation he allegedly had with both parents in September 2000 when he was 24, had no effect on his intention.  The highest his oral evidence went was that the September 2000 conversation “made me more secure”.

1. I am satisfied that Travis’ evidence (in paragraph 17) that he would have sought work elsewhere to get proper remuneration if the two alleged promises had not been made was simply untrue.  From the time he started work on the farm he never considered seeking employment elsewhere.  Well before the first promise he envisaged the farm providing him with a livelihood which would continue into his parents’ retirement (paragraph 30 of his affidavit) and that “the work and lifestyle” would exist and continue for a significant part of his life (paragraph 32 of his affidavit).  He planned to stay on the farm indefinitely;  that was his plan before the first promise, between the first and second promises, and after the second promise.  His intention was unchanged by any alleged promise or representation.  At no time up to the date of the trial did he make any enquiries about the wages he could earn as a farm hand elsewhere and there was no independent evidence to suggest he could have been paid more elsewhere than the package of cash and benefits he received from the farm.  Indeed, when it was put to him that he would not make as much if he went to work on a farm elsewhere, he said he didn’t know, and his counsel expressly abandoned his claim of suffering a financial detriment by reason of allegedly low wages or benefits.  He did not stay on the farm in response to any particular promise or inducement;  I am satisfied he never gave a thought to any alternative occupation or workplace or employer.

1. Of all the witnesses only Travis gave the impression of consciously trying to tailor an answer to take account of his sense of the purpose of the question.  An illustration is the evidence he gave after an exchange between the husband’s counsel and the Court, in the context of an objection reliant on earlier words used by Travis.  Counsel for the husband cross-examined Travis about an earlier answer he gave to counsel for the wife about building a new set of cattle yards on Argyll.  Counsel for the husband recalled Travis referring to “my cattle” and there was some discussion about the accuracy of that recollection.  Although my note and counsel for the wife’s recollection was of no reference to “my cattle”, in the absence of an easily available transcript I allowed counsel for the husband to continue her line of cross-examination.  Asked by her : “Did you say my cattle?”, Travis replied : “I think I did” and then provided a justification for his description of the cattle as his.  The subsequently available transcript shows no reference to “my cattle”;  the exchange (at transcript 157 to 158) was as follows :

   “Over the years you’ve done some fencing on the property?---Yes.

   You’ve set up a new set of cattle yards?---Yes.

   Your parents have not had cattle for some time, have they?---Not lately, but when we did have cattle the yards basically weren’t up to scratch to deal with Safeway and that’s where I was dealing with most of the cattle.  To get in with non-bruise cattle in there, we had to build a better set of yards.

   You’d understand that the normal work of a station hand would also include repairs to cattle yards?---Yes, but these were that far broken and gone that they were stuffed.

   You’d understand that the normal work of a station hand would include rebuilding cattle yards?---Yes.”

1. The wife’s animosity towards the husband and Travis was clear.  There were some inconsistencies in her evidence, as there were in the evidence of both the husband and Travis.  Nevertheless, questioned about central issues such as the alleged meeting and discussion of the wills, she appeared straightforward, frank and forthcoming and I place weight on her evidence, having more confidence in it than that of the husband or Travis. 

1. S presented as a quiet and reserved man, doing his best to answer questions responsively and to accurately recall events, many of which happened a long time ago.  The impression I gained was that he would have been happy not to have been involved.  While clearly on his mother’s side of the family divide, I gained no sense that he was tailoring his evidence to undermine that of his father or brother or that he held a grudge against them.

1. Listening to K’s evidence was sometimes frustrating, as she tended to give the answers “I don’t know”, “I don’t recall” or “I don’t remember” when it was difficult from the context to be sure what she meant.  Asked how she got on with her father, she answered “well”, adding that she had only seen him a couple of times since the separation and agreeing it was difficult for her to see him because she was living with her mother and her father was living with Travis.  She agreed she wanted to help her mother. 

1. Asked leading questions by counsel, K sometimes agreed in circumstances where one could have little confidence in the accuracy of her agreement.  An exchange between her and counsel for the husband in relation to knowledge of her parents’ intentions about providing for her and her daughter illustrates the dilemma;  I quote it from the transcript, at 95 :

   “MS WHEELER:  [Your daughter] was born in January 97?---That’s right.

   She was the first grandchild?---Yes.

   You were aware that your mother and father wanted specifically to provide for her?---Not specifically – no.

   They were concerned for you after the break-up of your marriage - - - ?---Yes.

   - - - and concerned to protect you and your daughter?---Yes.

   You knew that?---Yes.

   They were concerned to protect you and your daughter as against any claims that might be made against you by your second husband?---I wasn’t aware of that bit.

   But they certainly wanted to protect you?---Yes.

   Clearly they wanted to protect you against any claims that might be made against you?---Okay –yes.

   If you said you were concerned - - - ?---Yes.

   What were they protecting you from?---I don’t know.”

2. Given that tendency I place more weight on answers given by K which were directly responsive and made clear her understanding of the question. 

1. Travis’ wife, …, was cross-examined briefly.  She did not meet Travis until February 2001 and her cross-examination took matters little further.

LEGAL PRINCIPLES

1. The approach to the exercise of the discretion under s 79 of the Family Law Act 1975 (Cth) is well established. It is appropriate for the judge to identify the assets to be divided between the parties, identify the liabilities to be taken into consideration and then to determine the manner in which the assets ought to be divided, having regard to the parties’ respective contributions. Having done that, the Court must determine what further adjustments, if any, should be made having regard to s 75(2) considerations and consider whether the outcome is just and equitable.

1. As the husband and wife agreed that the net assets, as found by the Court, should be equally divided between them, little time was spent on the question of contributions and s 75(2) factors. 

1. In this case the Court cannot determine the first step required by s.79 (an identification of the relevant asset pool) without determining the claim made by Travis. Were he to be successful, the house block and the farm assets held by the family trust, and certain liabilities, would be removed from the asset pool available for distribution between the husband and wife. It is thus necessary to determine that claim prior to assessing the claims of the husband and wife to final property orders.

1. It was accepted by all counsel that the Court could exercise accrued jurisdiction to determine that non-federal aspect of the justiciable controversy, of which the family law claims form part.  The factual circumstances of the case satisfy me that the jurisdiction arises and that it is appropriate to exercise it;  see Warby (2002) FLC 93-091.

1. The claim relied on by Travis is based on proprietary estoppel, said to arise from representations or promises made to him by, variously, the husband, and the husband and wife.  As Brooking J. noted in Flinn  v.  Flinn (1999) 3 VR 712, claims by a member of the family to a farm, based on a proprietary estoppel said to arise from promises made to that member, are not uncommon. As in Flinn  v.  Flinn, Travis submitted that he relied, to his detriment, on promises or representations made to him by the husband and wife that he would inherit Argyll and submitted that the equity that arose could only be satisfied by the imposition of a constructive trust.  The constructive trust alleged by Travis is a remedial response to his claim to equitable intervention. 

1. In Giumelli  v.  Giumelli (1998-1999) 116 CLR 101 the High Court considered constructive trusts of this remedial nature. The decision established that in cases of what is commonly called proprietary estoppel, in which it may be said that prima facie departure from the assumed state of affairs is contrary to the requirements of conscientious conduct, it is a question depending on all the circumstances of each case whether departure is to be permitted. The Court may require the party estopped to make good the assumption, and may in an appropriate case impose terms upon the party. On the other hand, having regard to the requirements of conscientious conduct by the party estopped and, in an appropriate case, to the need to avoid injustice to third persons, the Court may decide that some lesser relief is appropriate.

1. As the High Court noted, the term “constructive trust” was used in that case to identify the nature of the equitable remedy granted by the Full Court of the Supreme Court of Western Australia.  Care is required in the use of the term “constructive” in that context.  The majority quoted with approval Professor Scott’s opinion (Scott On Trusts, 4^th Ed. (1989), vol 5, §462.4) that :

   It is sometimes said that when there are sufficient grounds for imposing a constructive trust, the court “constructs a trust.”  The expression is, of course, absurd.  The word “constructive is derived from the verb “construe,” not from the verb “construct”.  . . . The court construes the circumstances in the sense that it explains or interprets them;  it does not construct them.

1. At 112 the High Court noted (footnotes omitted) :

   The term “constructive trust” is used in various senses when identifying a remedy provided by a court of equity.  The trust institution usually involves both the holding of property by the trustee and a personal liability to account in a suit for breach of trust for the discharge of the trustee’s duties.  However, some constructive trusts create or recognize no proprietary interest.  Rather there is the imposition of a personal liability to account in the same manner as that of an express trustee.  An example of a constructive trust in this sense is the imposition of personal liability upon one “who dishonestly procures or assists in a breach of trust or fiduciary obligation” by a trustee or other fiduciary.

   In the present case, the constructive trust is proprietary in nature.  It attaches to the Dwellingup property.  Such a trust does not necessarily impose upon the holder of the legal title the various administrative duties and fiduciary obligations which attend the settlement of property to be held by a trustee upon an express trust for successive interests.  Rather, the order made by the Full Court is akin to orders for conveyance made by Lord Westbury LC in Dillwyn  v  Llewelyn and, more recently, by McPherson J in Riches  v  Hogben.

   In these cases, the equity which founded the relief obtained was found in an assumption as to the future acquisition of ownership of property which had been induced by representations upon which there had been detrimental reliance by the plaintiff.  This is a well recognized variety of estoppel as understood in equity and may found relief which requires the taking of active steps by the defendant.

2. Where a promise or representation said to establish the estoppel relates to the intended contents of a will, it is important to consider whether it is merely a promise of a revocable gift.  In Gillett  v.  Holt (1998) 3 All E.R. 917 at 930 Carnwath J. said of proprietary estoppel :

   Further, in the application of the principle to statements about the intended contents of a will, the facts must be looked at against the ordinary presumption that such intentions are subject to change.  It may be easier to infer a fixed intent when the subject matter is a particular property, which the plaintiff has been allowed to enjoy in return for services, than in relation to a whole estate.  In any event, the plaintiff needs to show words or conduct by the prospective testator which go beyond mere statements of intention, and which, having regard to all the circumstances, he can reasonably claim to have regarded as amounting to an irrevocable promise by the prospective testator as to how his estate would be disposed of.

3. In Flinn  v.  Flinn Brooking J. referred to the approach taken in Taylor  v.  Dickens (1998) 1 F.L.R. (UK) 806 where the plaintiff failed to establish a proprietary estoppel in relation to a promise of a legacy of residue on the ground that it was not enough for the estoppel claimant to believe that he was going to be given a right over the legal owner’s property if he knew that the latter had reserved the right to change his mind.  Brooking J. noted that a similar approach was taken in that case to that taken in Gillett  v.  Holt and that the decision in Taylor  v.  Dickens is discussed in the note in (1998) 114 LQR 351, where it is said that in cases of promises of a gift by will, the imposition of an additional requirement that there should be a specific assurance of “non-revocability” seems unduly restrictive and technical. 

1. To succeed, Travis must establish that the promise or promises made were, and were intended to be, and were reasonably understood and acted upon by him as, promises of the making, not of a revocable testamentary instrument, but of a gift by will taking effect on death.  He must also establish reliance on the promise or promises and detriment suffered by him in reliance on the promise or promises.

CHRONOLOGY

1. The husband was born in June 1944.  His parents were farmers and he, too, became a farmer.  In 1956 his father bought a property at … near Geelong and while the husband remained at school he worked on that farm with his father, when he could.

1. After leaving school, the husband worked for a short period as a bank clerk in Geelong.  In about October 1963, his father purchased an adjoining farm in …, which he registered in the name of his son.  The husband left the bank and joined his father in farming both properties, and in about 1964 the husband and his parents formed a farming partnership to work them.

1. The parties met in 1965 and became engaged.  That year the husband and his father demolished an old home on the property registered in the name of the husband and a new home was built.  The husband’s father paid for this work to be done and, on completion, the husband’s parents moved into that new home.  When the parties married in 1966, they moved out of the home and the husband and wife took possession of it.  They remained living there until April 1973, when that farm was sold. 

1. In April 1973 the husband and his father both sold their farm properties near Geelong, receiving close to $260,000 for both farms.  The husband’s recollection was that his share was about $145,000.  They decided to purchase a property for sale near C, called Argyll.

1. The price for Argyll was $270,695.  The husband applied the whole of his share of the proceeds of the … farm and his father contributed some $88,000.  The balance of the purchase price, plus stamp duty and legal costs, was provided by vendor finance of $69,423.  For reasons which the husband could not recall, part of the property was registered in his name, part in the wife’s name and part in his father’s name.

1. In about June 1978, the husband’s father sold that part of Argyll which was in his sole name; he retained the proceeds of that sale, save that he paid $30,000 to reduce the vendor finance loan.  The balance outstanding on that loan of some $39,500 was refinanced by the husband through the Bank of New South Wales.

1. In 1979 the husband’s father gave the husband $30,000, which was applied towards the farm’s operation.  Although his father had sold his own part of the farm, he continued to work the remaining property with the husband.  He had a private income and took no wages from his son, working with him until about 1994, when he retired. Even after that, he still came to the farm on occasions and regularly assisted there.  He took petrol from the fuel tanks on the farm and occasionally was given cash for small purchases.

1. On 2 July 1979 the Kleber Family Trust was created and, thereafter, conducted the farming enterprise. It owned the farming plant and equipment.  The original trustee was L Pty Ltd, which became Argyll (“S”) Pty Ltd on 28 April 1994.  The husband and wife are directors of that company and each holds one share.  Travis presently holds two shares.  The appointer is the husband and, on his death or resignation, the wife.

1. There is evidence of a second trust called the Kleber No.2 Family Trust;  Travis deposed to a belief it was wound up in about 2005.

1. The wife’s evidence was that between 1986 and 1993, S worked on the farm, evidence confirmed by S.  The husband’s evidence was that S worked only part time on the farm from the time he left school (doing a wool classing course and some shearing on other farms) and left to work at a local piggery (…) when he was about 19, which would have been in about 1989 or 1990.  I am satisfied S worked on the farm for a longer period than the husband now recalls and accept S’s evidence in this respect.

1. In 1988, K married, left the farm and moved to C. The husband’s evidence was that either that year, or in 1989, he advanced $6,000 to S for the purchase of a motor vehicle.  In 1991, Travis commenced full-time work on the farm.  K returned to live there in 1991, remaining until late 1992 or early 1993, when she moved to R to live with Mr J. 

1. All family members agreed that it was common family “knowledge” at this time that the two sons would inherit the farm in due course and the two girls would inherit cash and other assets.

1. In 1993, S went overseas for ten weeks and in 1994 started working at …, at C.  His evidence was that he remained living on the farm for a period, and worked “weekends and odd times”, evidence contested by the husband and Travis.  It is probable that so long as he lived on the farm he did assist at weekends.

1. In 1994, the husband and wife bought a car for Travis: the husband’s recollection was that it was a Ford Futura and he paid $12,000 to $15,000 for it; the wife’s recollection was of a Ford Falcon for a lesser price. They had also paid $3,000 towards the overseas trip taken by S; the husband characterized that as an advance and the wife, as a gift. 

1. Travis’ evidence was that in 1995 the farm purchased a round baler, on his initiative. He relied upon that as evidencing his significant role in farm management and innovative practices, but I am not satisfied that the purchase was as unusual as he wanted the court to believe.  He turned 20 in November 1995.

1. In 1996, S bought an investment property in W.  The wife and S’s recollections were that the husband and wife provided a $9,000 deposit; the husband said that he advanced $13,705.

1. In January 1997, K had a daughter, ….  That year, the husband’s mother died.  It was Travis’ evidence that in the following year, the husband said to him that he would leave the house paddock (the land referred to in this case as the house block) to Travis after the husband’s death (the first promise).  I will look further at the evidence relating to the first promise in due course.

1. In mid-1999 the husband and wife bought Travis a Holden Commodore motor vehicle for $32,000.  S started living with M, who he married in 2000.  The wife disapproved of M;  S’s recollection was that none of the family approved of her and no family members came to their wedding.  He was aware his mother was concerned about the potential entitlement of M were S and M to separate.  On his own initiative and without advice to his parents, S transferred his one share in the trustee company to Travis.  He had left the farm, was (for a short time) not speaking to either of his parents and wanted to prove that he “would still protect the farm”. 

1. In 1999 S bought a house in N; despite their earlier differences, he took his father to have a look at it some time after he purchased it.  He sold the W house.

1. In 1999 the husband’s father died.  From his estate, the father received $94,633 in a series of instalments. The husband’s evidence was of advancing another $3,000 to S at that time for the purpose of a second overseas trip; S (who I am satisfied was candid about benefits received) had no recollection of that. 

1. In about 2000 the husband and wife purchased a second property in “SC street”, C, in joint names.  The purchase price was $145,000.  About $100,00 was borrowed from the “Building Society” and the balance came from the husband’s inheritance. 

1. In about 2000 the husband and wife decided to make wills and attended David Kotthoff, a solicitor in Cooma, to give instructions.  Two wills were drawn and each was signed in Mr. Kotthoff’s presence.  The husband’s evidence was that the wills were left with Mr. Kotthoff for safe keeping and, when he swore his affidavit in February 2007, remained there.  I cannot say how he could be confident of the then current whereabouts of the original will signed by the wife in September 2000 as by February 2007 the husband and wife had been separated for more than 18 months and the wife’s evidence was of making a new will after separation.

1. The evidence of the husband and Travis was that in September 2000 a meeting was called at the farm, attended by the husband, the wife, Travis and K.  The purpose of the meeting was, the husband said, to discuss the future of the farm.  The wife and K denied attending any such meeting.

1. The husband’s evidence, denied by the wife, was that the meeting at the farm was called to advise the children of the execution of the wills and their parents’ intentions.  The husband’s explanation for S and L not being at that meeting was that “at that time we did not know where they were”.  Travis and the husband relied on statements made at that meeting and the executed wills in support of the alleged proprietary estoppel (“the second promise”).  Again, I will return to evidence relevant to the alleged promise.

1. The wife’s evidence, disputed by the husband, was that after the wills were signed on 11 September 2000, she and the husband had a number of conversations in which she expressed the view that the provisions of the wills were “not right” and was critical of the advice given to them by Mr. Kotthoff .  Her evidence was that she was unhappy about the content of the wills but she agreed she did nothing to change her own will until after separation.  I am satisfied she signed a new will prior to learning that Travis sought to make a claim to the farm.

1. Early in 2001 Travis met his now wife, ….  She lived in Canberra and visited the farm for increasing periods, with her young son, staying – on and off – over about a six month period.  Travis then purchased a home at W and moved there with … and her son.  The husband’s evidence was that he advanced Travis the sum of $10,000; Travis’ evidence was that “I paid the mortgage repayments from money paid to me by my father”.

1. The husband deposed that in 2001 he advanced to S $5,800 for him to purchase another car and that in 2001 he advanced the sums of $6,000 and $7,500 to S’s wife.  Such differences as S had with his parents had by then completely resolved.

1. Travis’ evidence was that from August 2001 the husband paid him $1,000 per month and, in addition, allowed credit card drawings of up to $1,000 a month.

1. According to S, in 2002 the husband and wife paid $30,000 towards the purchase of a larger home for him.  The husband’s evidence was that in March 2000 he advanced $15,000 towards the purchase of this property (in “R street”, C) and, in addition, paid $3,799 stamp duty. 

1. In 2003, some nine years after he left the farm, S returned to work on it, beside his father and brother.  He worked on the property until 28 October, 2005.  I cannot say who initiated this move but all three men acquiesced in it. 

1. S’s evidence was that his relationship with the husband and Travis slowly deteriorated after he returned to work on the farm.  They were not sure the farm could support all the families involved.  I accept S’s evidence (not contested by Travis) that in their discussions about the future of the farm, Travis said nothing whatsoever about the content of their parents’ wills or his parents’ alleged promise that he was to inherit the farm, to the exclusion of S.  S probably didn’t raise the question with Travis, presuming things remained as they were prior to him leaving the farm in 1994.

1. The husband and Travis had been working the farm for years in S’s absence.  After S’s return, they continued to do so.  S did the work he thought should be done, which was not always consistent with his father’s and brother’s views on farming.  He said he was paid $2,500 per month while Travis was paid, he said, $1,000 plus all bills, and a credit card of up to $3,000 per month.  Travis denied he was paid as much as S recalled but in final submissions his counsel conceded that Travis was then drawing “significant amounts of money from the farm account and was being provided with other benefits” and that Travis received “a reasonable income”.  The farm’s finances were structured to minimize tax and both Travis and S’s families received Centrelink benefits.

1. The husband agreed that in about 2004 he and S went to a seminar which considered how to structure wills to protect farm assets.  I accept S’s evidence that, after hearing a speaker discuss the structuring of estates, he and the husband had a conversation about (to use S’s words) “protecting the will better so the girls couldn’t take the farm or couldn’t make the farm be sold”.  The husband conceded there may have been a general, and brief, discussion about what was said at the seminar but said there was no discussion of the family’s own circumstances.  I prefer S’s account.

1. I have no doubt that when S returned to the farm in 2003 he believed the old family consensus still existed – the farm was “going to be half and half”, between him and Travis.  I accept his evidence of then having several conversations with his father about the future of the farm, in terms both of its financial viability and who was to inherit it, and that he “got no answers”.  If the husband and wife had made an irrevocable promise of a gift, to take effect after their deaths, they were not under any obligation to tell S of it.

1. Tension mounted between the three men on the farm:  S felt he was being frozen out; Travis complained of S’s attitude and the quality of his work; S complained Travis took a lot of time off and started work late; Travis made similar complaints about S.

1. On 15 March 2003, Travis and his wife married and travelled to Tasmania for two weeks.

1. In March 2004, according to S, his parents bought him a Kia motor vehicle.  The husband’s affidavit evidence was that the Kia was purchased for $28,000 in the name of Argyll (“S”) Pty Ltd. 

1. In about 2004, the husband and wife decided that they would both move into C and live at the property at “SC Street”, in semi-retirement.  The “the SC street property” was renovated; the husband’s evidence was that some $24,000 came from funds from his father’s estate and the balance was either borrowed or came from farm accounts. 

1. In June 2004 the husband and wife moved from Argyll to “the SC street property”. The husband’s evidence was that, having decided to move into C, he, the wife and Travis had a meeting, in the course of which they told Travis that the husband was going to take a step back and wanted him to take over the running of the farm.  Travis was told that he and his family would come to live on the farm, the husband would still come to work on the farm, and the wife and husband would draw an income from the business. His evidence was that Travis agreed with this proposal which (on the husband’s evidence) related to Travis assuming responsibility for running the farm, not to questions of inheritance.  In his affidavit Travis said nothing of this proposal.

1. S was working fulltime on the farm at that time but in the husband’s affidavit he said nothing of S’s return to work on the farm in 2003 or S’s departure in October 2005.  He said nothing about his intentions, or knowledge of Travis’ intentions, about S’s position on the farm in the future.  On all accounts, S continued to work on the farm for some 16 months after his parents’ move into C.

1. In his affidavit Travis acknowledged S’s return in 2003 and attributed his departure in October 2005 to “disputes with my father and I about the management of the property”. 

1. Travis and his wife moved to the Argyll farm, selling their marital home.  Travis and his wife used $40,000 of the sale proceeds to buy a truck, which was available for Travis to use to earn off-farm income.  Little attention was paid to that asset until final addresses when counsel for the wife (after a submission dealing with Travis’ claim of detriment arising from the sale of the marital home) advised that the wife would not oppose Travis keeping that truck.

1. The husband’s evidence was of paying the sum of $7,500 towards university fees for S’s step-daughter in 2004.   In September 2004, K and her daughter moved to live with the husband and wife in “the SC street property”.

1. The husband deposed that in 2005 he paid $5,100 to have gas heating installed in S’s residence; the wife deposed that, in 2005, she and the husband bought Travis a Commodore vehicle for $42,000. 

1. After moving into C, the relationship between the husband and wife deteriorated.  They attended mediation in June 2005 but on 13 October that year they separated.  The husband moved out of “the SC street property” back to the Argyll farm, to live with Travis and his family.  The only reference the husband made in his affidavit to S having any involvement at the farm after leaving it in 1994 was in his explanation for the final separation, he deposing :

   In about October 2005 I was at the farm working when the applicant wife arrived and we had a conversation.  During the course of this conversation the applicant wife said to me words to the effect, “I want you to put Travis and [his wife] off the farm.  I want you to put [S] on the farm.”  I said, “I can’t do that.  Travis is the person to run the farm properly.  [S] can’t do it”.  The applicant wife then said, “Well don’t come home”.  The applicant wife then left.  I did not return home and, since then, I have continued to live on the farm with Travis and [his wife].

1. That evidence made it clear that the husband was again speaking in terms of responsibility for running the farm.  In his evidence there was no reference then to any binding agreement that Travis would inherit the farm.

1. The husband’s evidence was that he then resumed working on the farm.  He said at that time Travis was receiving $1,500 a month plus the use of a bankcard up to $3,000 a month;  Travis, his wife and their children continued to live (with the husband) in the house on the farm, rent free.

1. The evidence of the wife and S was that on 28 October 2005, some fortnight after the separation of the husband and wife, the husband demanded that S leave the Argyll farm.  Whatever the relationship between family members prior to that time, the family then split into opposing camps, with the husband, Travis and his wife on one side and the wife, S and K on the other.  Understandably, this rendered their evidence partisan to varying degrees.

1. Prior to leaving the farm, S consulted a solicitor about his situation at the farm, a course which his father “did not like at all”.  After being directed to leave the farm S issued an application for wrongful dismissal in the Industrial Relations Commission.  Solicitors acting for the husband and the family trust wrote to S’s solicitors, enclosing trust accounts for the period ending 30 June, 2005 and advising that they brought “to your attention the loan account of your client which presently stands at $89,617 debit”.  I accept S’s evidence that was the first he knew of any such alleged debt.  He withdrew the wrongful dismissal claim.

1. On 10 March 2006, the wife filed her initiating application for final property orders.  Later that year, in September, the husband increased Travis’ cash drawings to $2,000 a month.  The husband and wife had a disagreement about the husband continuing to pay the wife’s private health cover, a matter of some moment as she had a total right knee replacement on 6 December 2006, and further surgery on 25 January 2007.   Additional surgery was anticipated later in 2007.

The First Promise

1. The case was opened on the basis that Travis relied on two promises, the first made in the course of an alleged conversation with his father in about 1998.  At paragraph 15 of his affidavit Travis deposed :

   In about 1998 my father said to me words to the effect that, because I was working on the farm and because [S] already had a house, he would leave me the ‘house paddock’ after his death.  The house paddock is an area of about 500 acres and includes the farm house.

1. Cross-examined about this, Travis agreed that he knew his mother had an interest in the farm, that he did not know whether she “consented” to what his father told him and that he did nothing to check whether she agreed with his father.  The wife was not a registered proprietor of the house block; the evidence did not disclose whether Travis knew which parts of the property were registered in his father’s, and mother’s, names.  Travis agreed that it was fair to say that he did not alter his plans “one bit” as a result of the alleged conversation in 1998.

1. The husband said nothing in his affidavit of evidence in chief of any such specific promise between him and Travis in 1998.  He did depose to some discussions between him and the wife in paragraphs 55 to 57 of his affidavit, as follows :

   55.Within about two years after Travis left school and came to work on the farm the applicant wife and I started to have discussions between ourselves that we wanted Travis to take over the farm in due course as this (sic) eventually enable us to live in retirement.  I recall that we talked about this often between ourselves.  Indeed, it was an important topic between us as we both grew older.

   56.I also recall that there were numerous occasions when the applicant wife and I both told Travis together that he would take over the farm in due course and that we would retire.

   57.On many occasions I recall telling Travis words to the effect that he wasn’t getting that much now but that eventually the applicant wife and I would retire and the farm would be his.  Whilst I do not specifically recall the applicant wife being present on the occasions when I said these words to Travis I feel confident that she would have been because it was such a common understanding between us.

1. Thus, the affidavit evidence of the husband was of numerous occasions (from about two years after Travis came to work on the farm which would make it 1993, when Travis was 18 or 19) when the wife and he both told Travis he would take over the farm in due course and an expression of confidence that the wife would have been present when, on many occasions, he told Travis that the farm would eventually be his.  It must be said this evidence sits uncomfortably with his own evidence (in paragraph 58 of his affidavit) of numerous discussions with the wife about the contents of their wills and their “eventual” decision in 2000 (as a result of which they “therefore went to see” Mr. Kotthoff) that they wanted to leave the farm to Travis.  On that account, the decision to leave the farm to Travis was not made until 2000 and prompted their appointment with Mr. Kotthoff.

1. The husband’s evidence in paragraphs 55 to 57 of his affidavit is not consistent with Travis’ evidence of a specific conversation in 1998, with his father alone, about the house block only, which stood out in Travis’ memory.  Counsel for Travis conceded in his final submission that the first promise was not confirmed by the husband and then abandoned reliance on it, confirming (at transcript 189) that it was the second promise which was relied on by the intervenor. 

1. Notwithstanding that concession, counsel for the husband continued to rely on the first promise as going “to the totality of the second promise”.  Pressed, it was her submission that the first promise was “part of the circumstances leading up to the second promise”.  She said that that in that sense she relied on it, but did not rely on it “as a ground of itself” (transcript 202).

1. The provisions of the husband and wife’s wills signed in September 2000 are not exact mirrors.  If the wife predeceased the husband, the whole of the farm and business was to pass to Travis on the husband’s death.  If the husband predeceased the wife, the house block was to go to Travis, and the balance of the farm was to be held by the wife until her death, at which time it, too, would go to Travis.  Considering this evidence, counsel for the husband explained why, in her submission, the first promise was “subsumed and eaten up by the second promise”.  Her argument seemed to be that the alleged terms of the first promise were, effectively, incorporated into the two wills as, one way or the other, Travis would get at least the house block on his father’s death.  She thus relied on the first promise as an expression of an intention, which was later effected by the signing of the wills, and allegedly communicated to Travis in September 2000. 

1. The evidence does not satisfy me that it is more probable than not that the first promise was ever made.  The husband was entirely sympathetic to and supportive of Travis’ claim.  He gave evidence that, prior to about 1993, family members would have believed or thought that S and Travis would inherit the farm and K and L inherit non-farm assets.  Such a consensus or belief could be maintained (inaccurately) by some family members if they were ignorant of events which rendered the belief redundant.  However, in the husband’s evidence of numerous conversations about the property there is nothing about Travis inheriting the house block only, or of a specific promise, in clear terms, relating to the house block only.  Indeed, if the husband’s general recollection of the conversations from 1993 is correct, a promise in 1998 that Travis would inherit the house block only would have been a promise to give him less than earlier advised.  In final submissions Travis himself did not rely on any promise made by either his father or his mother prior to September 2000.  The probabilities do not support Travis’ evidence of the 1998 conversation.

The September 2000 Wills

1. The evidence of the husband and wife was of instructing Mr. Kotthoff to prepare wills and signing them in Mr. Kotthoff ’s presence.  The evidence of both was that the wills were left with Mr. Kotthoff .  The original wills were not in evidence and Mr. Kotthoff was not called.  He would have been in a position to clarify inconsistencies in the parties’ evidence about which of them proposed Travis as the sole beneficiary of the farm and their then intentions.  No explanation was given as to why he was not called and why the original wills, signed and dated before him, were not subpoenaed (if still with him and not in a party’s hands) or tendered. 

1. The only copies of the wills adduced into evidence are photocopies annexed to Travis’ affidavit marked “D” and “E”.  The copy of the husband’s will is a copy of an executed will, dated 11 September, 2000 and signed in the presence of Mr. Kotthoff and a second witness, who also has the surname Kotthoff.  The copy of the wife’s will is an unexecuted copy, carrying no date and no signatures.  Although it was put to Travis that the evidence he gave about the contents of these wills came to his knowledge only after his parents had separated (a proposition he denied) he was not cross-examined about where he acquired the copies he annexed to his affidavit.

1. The wife’s evidence was of executing a will on the same day as her husband in September 2000, before Mr. Kotthoff .  On her behalf it was not submitted that the Court could not be satisfied that the copy will annexed to Travis’ affidavit was in the exact terms of that which she executed.  I do note that in her affidavit she deposed to them executing wills in identical terms although in cross-examination she made it clear that she understood the disparity between them, and the reasons for it.  No one took any objection to oral evidence being given of a document which was capable of production.  Having regard to the evidence and the submissions I proceed on the basis that the husband and wife both concede that they executed wills in the terms of the annexures to Travis’ affidavit on 11 September, 2000.

1. Assuming the wife survived the husband by a month, the husband’s will provided for her to be appointed appointor for the Kleber Family Trust and for her to receive the whole of his estate, save for the house block, which was to go to Travis.  If the wife did not survive him by a month, the house block and the whole of the balance of Argyll, together with his interest in Argyll “S” Pty. Ltd. and the Kleber Family Trust, was to go to Travis, subject to any indebtedness.  In those circumstances Travis was to be appointed the appointor for the family trust. 

1. The will contains a number of other specific bequests to operate in the event the wife did not survive the husband by a month.  It provided for the sum of $100,000 to be held in trust for K’s daughter until she was 21, forgave S any money advanced to him during the husband’s lifetime and divided the residue equally between S, K and L, save that L’s share was to be held in trust during her lifetime and then to be divided among her children as tenants in common in equal shares upon each of them attaining the age of 21 years. 

1. Paragraph 8 of the will noted that the husband had not provided for an equal division amongst his children :

   . . . as I have otherwise provided during my lifetime for my children [S]  , [K] and [L] AND AS my son TRAVIS JASON KLEBER has worked the farming property with me without proper remuneration and he has contributed to the improvement and preservation of the farm.

2. The will signed by the wife provided for Travis to be appointed appointor under the family trust and gave the whole of the wife’s estate to the husband, provided he survived her for 30 days.  If he did not, she gave the whole of Argyll together with all her interest in the trustee company and the trust (subject to any indebtedness attached thereto) to Travis.  In those circumstances the will contained identical provisions to that signed by the husband relating to the money to be held in trust for K’s daughter, the forgiveness of money advanced to S during his lifetime and the distribution of the balance of her estate.  In paragraph 8 it contained a clause which was identical to that contained in paragraph 8 of the husband’s will. 

The Second Promise

1. This is the crux of the case advanced by the husband and Travis.  The husband’s account is in paragraphs 58 to 61 of his affidavit, as follows :

   58.In about 2000 the applicant wife and I had a discussion about having some Wills prepared.  We had numerous discussions at this time about what we wanted to put in our Wills and, eventually, we both decided that what we wanted to do was to leave the farm to Travis but that everything else would go to the other 3 children.  I recall that as a result of these discussions we were both in agreement about what we wanted to do.

   59.We therefore went to see a solicitor in Cooma, one David Kotthoff , and in the course of a conference with him we both told him what we wanted.  As a result he drew up two Wills which we both signed in his presence.  These Wills were left with him for safe keeping and, to the best of knowledge, they remain there.

   60.After the applicant wife and I had executed these Wills the applicant wife and I decided that we would tell our children what we had done and what our intentions were.  We therefore asked Travis and [K] to come to see us at our home on the farm.  [S] and [L] were not called to this meeting because, at that time, we did not know where they were.

   61.At this meeting the applicant wife and I both told Travis and [K] what we had done.  I recall the applicant wife saying to both children words to the effect, “We’ve drawn up a Will and we’ve given Travis the farm for the future and you [K] will be looked after as well as [your daughter].  The reason we’ve done this is we couldn’t trust [S] with the farm and as [L] has shifted away with a boy we are uncertain about where she was going”.  I indicated my agreement to these words and, shortly thereafter, the meeting ended.

1. Travis’ account is in paragraphs 16 and 17 of his affidavit, as follows :

   16.In about September 2000 there was a meeting at the farm, which involved my father, my mother, my sister [K] and myself.  During the meeting we discussed the future of the farm.  My mother told me that she and my father had recently made new wills.  She said that the farm would be left to me because I had worked on the farm without proper payment.  She also said I was the only member of the family that she and my father could trust to keep the farm going.  But my mother also told me that, although I would receive the farm, I would not receive any other money under the wills and this would be divided among the other children.  I was shown copies of the wills by my parents.  I understand that these are “mutual wills” and I note that clause 8 of both wills said as follows :

   “I HAVE NOT PROVIDED in this my will for an equal division among my children as I have otherwise provided during my lifetime for my children [S], [K] and [L] and as my son TRAVIS KLEBER has worked the farming property with me without proper remuneration and he has contributed to the improvement and preservation of the farm.”

   Annexed hereto and marked D is a copy of the signed will of my father.  Annexed herewith and marked E is a copy of an unsigned will by my mother.  I presently do not have a signed copy of the will but it is my belief that the will was signed by my mother and is in the same terms as that in the annexed draft.

   17.Because of the promises made to me by my father and mother I was prepared to remain working on the farm.  If I did not have this expectation I would have sought work elsewhere to get proper remuneration.

2. Both the wife and K denied attending any such meeting, or having any knowledge of any such meeting. 

1. Cross-examined, the husband maintained that the only reason S and L were not at the meeting was that they did not know where they were.  He agreed that in September 2000 S had been working at “the abattoir” in C for some seven years but that “we really didn’t know at times where he was”.  Travis conceded that he knew where S lived; indeed, his evidence was that he knew the house in which he lived. 

1. In relation to L, Travis’ evidence was that she had gone to Sydney but they had no phone number to contact her.  The husband’s evidence was that he didn’t know where L stayed in Sydney and that “we lost contact with L for a year or two”.  On the other hand, he said that his wife might have known, but that he himself did not know how to contact L.  I have no doubt that the husband and wife, and – indeed – Travis, could have contacted S to invite him to an allegedly important family meeting in September 2000.  In relation to L, one could say no more than that the wife may have known how to contact her and there was no evidence from the husband that he asked her to do so, something he would surely have done had the meeting been both pre-arranged and significant (as he deposed). 

1. Cross-examined, the husband’s evidence was that the wife called the meeting “just after our wills were done”.  Nowhere in his oral or affidavit evidence did he make any reference to the wills or copies of the wills being produced at the meeting, or to him having a copy of his, or the wife’s, will.  According to him, the meeting was short and simply involved the wife and him telling Travis and K “what we had done”.

1. Travis’ evidence was that he was shown his mother’s will and his father’s will at the meeting.  The evidence is that the original executed wills were left with Mr.  Kotthoff .  Cross-examined by counsel for the husband, Travis said that he was told about the wills on the day his parents were “going in to pick up or sign their copies or . . .” but at that stage he knew nothing else about the wills.

1. The husband’s account of the meeting involved a specific decision to call it and invitations to two of their four children, he allegedly not knowing how to contact the other two.  The meeting was pre-arranged and formal enough for him to be able to depose that, shortly after he indicated his agreement with a statement made by the wife, “the meeting ended”. 

1. Travis’ account of the circumstances in which the meeting occurred was very different.  His evidence (transcript 165) was as follows :

   It was at lunchtime.  [K] had come out to drop [her daughter] off because she was working afternoon shift, so that’s why we were all – and I’d come in for lunch.  That’s why we were all there.

According to him, “basically the first thing that happened” was that his mother showed him her will and said “this is what we’ve executed”, going on to “explain basically what the will said”.  Asked where his father was when his mother was showing him her will, he said he was pretty sure his father was talking to K, but he (Travis) wasn’t really looking at K, because he was looking at the will.  According to him, K was shown the wife’s will after he had seen it, and then his father showed his will to Travis.  Asked about the wife’s explanation of the contents of the will, Travis said that she said the husband’s will was basically the same, that K was standing against “the breakfast bar type thing” and he was sitting at the kitchen table, and that his father was initially with K but then came to sit at the table.

1. On Travis’ account, the meeting is opportunistic.  His sister was at the farm to drop off a daughter to be looked after, he came in to have lunch, and his parents both produced their wills.  Nothing he said suggested he had any prior notice of the “meeting”, although his account in his affidavit suggested a more formal arrangement. 

1. In his affidavit account, Travis deposed that the wife told him at that meeting that, although he would receive the farm, he would not receive any other money under the wills and this would be divided among the other children.  According to his oral account, far from being told that he would not receive any cash money, he was asked by the wife whether he wanted any cash money as well, and it was his response that getting the whole farm eventually would be “more than enough”.

1. In her affidavit, K deposed to her general understanding from discussions between her parents that they intended to leave the farm to her brothers and to leave investments and cash to her and her sister.  At paragraphs 8 to 14 she set out evidence relevant to the alleged meeting, as follows :

   8.Travis deposes in Travis’ affidavit that I attended a meeting at the farm with Travis, my mother and father and during that meeting we discussed the future of the farm.  I have never been invited to and nor have I ever attended a meeting with my parents or either of my parents and Travis to discuss my parents’ Wills or the future of the farm.  I have never attended any meeting where my parents promised to leave Travis the Argyll farm.

   9.A (sic) different times when I was at the farm with my parents and Travis there were discussions between my parents when Travis and I were present when my parents would discuss their proposals as to what they wanted to happen with the farm and their assets on their death.

   10.I am aware from these discussions and discussions that I had with both my father and my mother that it was my parents’ intention to leave the farm to my brothers and to leave myself and my sister investments and cash.

   11.My father advised me on more than one occasion that he proposed to maintain life insurance policies on his life and that he would or had made [L] and I the beneficiaries of these life insurance policies.

   12.I was never advised of how much this would mean in cash to [L] and I on my parents’ deaths or if it was money that would be payable to me only on my father’s death however my father always advised me that [L] and I would be well looked after as a result of how he proposed that he and my mother’s Will be structured.

   13.I was never advised by my father or my mother that Travis was to inherit the house block and acreage surrounding the house block.  In all the discussions I had with my father and mother in relation to their Wills or in all the discussions that I was present for when my father and mother discussed their Wills the proposed Wills were to leave all of the assets to the survivor of my mother and father and on the death of the survivor of my mother and father the farm was to be transferred to Travis and [S] equally and [L] and I were to receive cash and investments and proceeds of life insurance.

   14.I was never shown copies of the Wills of my mother and father nor have I been present at any discussion where copies of Wills of my mother and father were produced and shown to me or any person in my presence.

1. Cross-examined, K’s evidence was of discussions from time to time about the farm being left to the two sons, and she and L receiving cash and investments.  She said that the discussions were “just brought up at lunchtimes or at times when we were together” and she could not say who was present.  She said there was “no planned discussion about it or anything” and “no structured meeting or anything”.  It was just brought up from time to time.  She said she was not aware of any provision in a will dated 11 September, 2000 providing for a sum of $100,000 to be held on trust for her daughter, and that prior to the litigation neither of her parents had told her of wills signed by them in September 2000.  She knew that her mother had recently (that is, recently vis-a-vis the trial) made a new will, but deposed that neither of her parents had ever said anything to her about the contents of wills signed by them in September 2000. 

1. Asked specifically about the alleged meeting K said “I don’t remember that happening”.  When it was put to her that her memory was pretty vague, she responded (transcript 96) :

   It was never really a structured thing.  We were always brought up knowing that the two boys would have the farm and the girls would have money.  It was just a standard thing.  It was nothing connected with any will or any timeframe.  It was just how it was.

1. Pressed further, and asked whether she remembered her mother saying that her parents had drawn up wills and had given Travis the farm, K replied “no”.  When it was put to her that it could have happened, and that it was just that she did not recall it, she replied “I don’t recall that conversation, no”.  When counsel said “but it could have happened” she replied “maybe, but I don’t think so”.

1. When the husband’s account of the explanation given by the wife was put to K, she said she did not recall any of that happening.

1. The husband’s account of the meeting involved the wife explaining the reason Travis had been given the farm as “we couldn’t trust [S] with the farm and as [L] has shifted away with a boy we are uncertain about where she was going”.  Travis said nothing of that explanation in either his affidavit or oral evidence.  In his affidavit he deposed that the explanation given to him by his mother at the meeting was that the farm was being left to him because he had worked on it without proper payment.  He said nothing of any conversation about not trusting S with the farm, or L having moved away.  On his account, the alleged promise (oral and confirmed in the wills) was not tied to him agreeing to remain on the farm or conditional on him behaving in any specific way in the future.  At its highest, his evidence was of being told he was to be left the farm because he had worked on it without proper payment. 

1. In the very last sentence of his affidavit, Travis deposed that he had continued to work on the farm “on this understanding”, the understanding being the advice, received in 2000, that he would inherit the farm.  That is the only evidence of any nexus between the 2000 representation and his work on the farm since, and his oral evidence made clear the lack of any causal connection between the two.

1. On one thing all family members who gave evidence, agreed.  That was that it had never been part of the family understanding that the girls would inherit the farm.  In those circumstances, there could be no reason for the wife to explain the bequest to Travis alone by reference to L having “moved away with a boy”.

1. No where in their affidavit evidence did the husband or Travis depose that the second promise was a promise that Travis was to inherit both the real property which made up Argyll and the personal property owned by the trust.  Travis tried to extend the promise by reference to paragraph 6(a) in his mother’s will (which provided (if the husband predeceased her or failed to survive her for 30 days) for the whole of Argyll and her interest in the trustee company and the trust to go to Travis) and paragraph 6(a) of his father’s will (which provided for the balance of Argyll and his interest in the trustee company and the trust to go to Travis if the wife did not survive him for 30 days).

1. The evidence does not satisfy me that it is more probable than not that a meeting of the sort described by either the husband or Travis ever occurred.  I accept the wife’s evidence that she never showed a copy of her September 2000 will to Travis, or told him of its contents, and never promised him that they would leave the farm and farm assets to him alone.  The husband gave no evidence of ever showing a copy of his September 2000 will to Travis.  I cannot say whether he told Travis of its contents at some time after it was signed, but I am satisfied the husband’s will or a copy of it was not shown to Travis in the presence of either the wife or K, or (at anytime) with the wife’s knowledge.  The evidence does not satisfy me the husband made the promises or representations in September 2000 relied on by Travis.

1. Having found neither promise established by the evidence and there being no evidence of other promises or representations said to found Travis’ claim to the farm and farming assets, his application must fail.

1. The value of the whole of Argyll and the trust assets will be included in the asset pool.  So, too, will be the sum of $40,000, taken by the wife after separation.  On her evidence the money was not used for day to day living, but given to the children.  She spoke of spending $10,000 on L’s wedding, paying school fees for S’s son and spending just under $5,000 on legal expenses.  I am satisfied that sum should notionally be returned to the pool. 

1. The husband and wife agreed that contributions of all kinds made by them during the marriage and to date should be assessed as equal.  They also agreed that no adjustments to that division were required pursuant to s.75(2) and that an equal division of their nett assets would be just and equitable. 

1. In her outline of case document filed on 26 February, 2007 the wife sought to retain the following specific assets :

   “the SC street property”, unencumbered  $225,000

   Motor Vehicle   6,000

   Furniture   7,500

   Cash, superannuation and insurance policies   96,689

2. She would assume responsibility for the mortgage on “the SC property”, said to be $94,781 and for what was referred to as a bankcard debt of $4,000.  She sought that the balance of her entitlement be paid in cash by the husband.  I note that the dollar values attributed to assets in that document were those advanced by her in her evidence, not those agreed (some time later) and set out in annexure B.  I also note that although annexure B to this judgment shows a Mastercard debt of $4,000 asserted by the wife (presumably the same debt), that debt is not shown as a liability in the column relating to the husband’s asserted assets and liabilities.  Nor is it shown as an agreed liability.

1. In the course of final submissions counsel for the husband tendered a document in which were summarized the assets to be taken by the husband, wife and Travis.  It was premised on Travis succeeding in his claim;  on its face, that would have resulted in Travis receiving assets valued at $2,104,500. 

1. The document listed assets to be received by the wife.  The figures for them are taken from the agreed values shown in annexure B to this judgment, as follows :

   “the SC street property”, unencumbered  $225,000

   Holden Ballina, unencumbered  9,600

   Half ownership of Kia wagon

   (driven by S)  9,000

   Westpac farm deposit in wife’s name   25,000

   Westpac farm deposit account in wife’s name          15,000

   Husband’s shares held jointly with S  4,500

   MLC lifetime policy on her life   15,500

   Half of monies due from third parties, via

   the trust :

   S  70,250

   K             2,700

   Travis  26,000               98,950

   Superannuation Fund in wife’s name   65,200

2. On that analysis, counsel submitted that the husband should pay the wife $1,429,100, making up her entitlement to half of the assets left after the transfer to Travis of the house block and farm assets.  I note there was no mention of the mortgage over “the SC street property”, which stands at an agreed figure of $94,200.

1. In final submissions counsel for the husband and wife agreed that the parties should each include in his or her respective share of the assets one-half of any money due (based on the family trust accounts) to their children.  It was agreed that the total figure for S was $140,500, for Travis $52,000 and for K $5,400.

1. In my judgment the husband and wife should be given an opportunity to agree on the distribution of assets and liabilities.  However the cake is cut, the husband is going to have to pay the wife a significant sum in cash.  He may have already accepted the need to sell part of Argyll or may seek to refinance. 

1. On the basis that Travis’ claim was dismissed, the wife did not press her application for spousal maintenance, a sensible course.  Providing she receives a reasonable part of her cash entitlement soon after final property orders are made, I would find it appropriate to allow the husband a period of six months (or such other period as the parties agree) to come up with the balance.

1. The parties might also want to consider their positions in respect of the truck used by Travis, to which reference was made in the final submission of counsel for the wife, he stating then that the wife would have no problem with that asset being transferred to Travis.

1. For these reasons I propose to defer the making of final orders to allow time for discussion between the parties and the preparation of any minute of agreed orders.  They may submit a minute of proposed orders (based on this judgment) by 20 August, 2007.  If they are unable to agree on a set of orders to fully implement this judgment, but are agreed on the distribution of certain assets and liabilities, a minute relating to that agreement should be submitted.  There will also be provision for the filing of submissions if agreement is not reached.

1. At this time I am unsure whether there will be any application for costs.  The final orders will make provision for the filing of submissions in support of any applications for costs, in due course. 

I certify  that the preceding
143 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2007.

…………………………………………
Associate.