Kronenberg v Macaulay

[2025] NSWCA 195

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Kronenberg v Macaulay [2025] NSWCA 195

Hearing dates:

8 July 2025

Decision date:

28 August 2025

Before:

Leeming JA at [1];
Mitchelmore JA at [239];
Free JA at [240].

Decision:

(1) Appeal allowed.

(2) Orders 1 and 2 made on 3 December 2024 and orders 6, 7 and 8 made on 2 May 2025 be set aside, and in lieu thereof:

(a) dismiss the claims of the first respondent in prayers 1, 2, 3, 4 and 5 of the statement of claim, and;

(b) remit for further hearing the claims in paragraphs 7, 8 and 9 of the statement of claim, in accordance with these reasons, such remitter to include the costs of the first trial.

(3) The first respondent to pay the appellants’ costs of this appeal.

Catchwords:

ESTOPPEL — proprietary estoppel — estoppel by encouragement — family farm — representations by father to son concerning eventual ownership of farm — whether representations concerned testamentary intentions or inter vivos transfer — whether representations sufficiently certain — whether plaintiff relied upon representations — whether plaintiff incurred detriment — whether constructive trust on terms appropriate remedy

Legislation Cited:

Succession Act 2006 (NSW) ss 59, 80

Uniform Civil Procedure Rules 2005 (NSW) r 36.16

Cases Cited:

Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 (2022) 277 CLR 445; [2022] HCA 38

Barnes v Alderton [2008] NSWSC 107; 13 BPR 25,281

Bassett v Bassett [2021] NSWCA 320

Bassett v Cameron [2021] NSWSC 207

Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59

Biogen Inc v Medeva plc [1997] RPC 1

Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49

Calverley v Green (1984) 155 CLR 242; [1984] HCA 81

Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197

Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26

Daniel v Athans [2022] NSWSC 1712

Donis v Donis (2007) 19 VR 577; [2007] VSCA 89

Erem v Moussa [2024] NSWSC 641

Flinn v Flinn [1999] 3 VR 712; [1999] VSCA 109

Foran v Wight (1989) 168 CLR 385; [1989] HCA 51

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10

Harrison v Harrison [2013] VSCA 170

In the matter of Hillsea Pty Ltd [2019] NSWSC 1152

Jenyns v Public Curator (Qld) (1953) 90 CLR 113; [1953] HCA 2

Kramer v Stone [2024] HCA 48; 99 ALJR 126

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

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Legione v Hateley (1983) 152 CLR 406; [1983] HCA 11

Macaulay v Macaulay [2024] NSWSC 1547

Macaulay v Macaulay (No 2) [2025] NSWSC 421

Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd (2022) 109 NSWLR 468; [2022] NSWCA 150

Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77

Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78

Priestley v Priestley [2017] NSWCA 155

Q v E Co [2020] NSWCA 220; 383 ALR 469

Shinetec (Australia) Pty Ltd v The Gosford Pty Ltd [2024] NSWCA 174

Sica v Brophy [2020] NSWCA 181

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

Slade v Brose [2024] NSWCA 197

Soulos v Pagones [2023] NSWCA 243; 416 ALR 181

Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114

The Juliana (1822) 2 Dods 504; 165 ER 1560

Transport for NSW v Hunt Leather Pty Ltd (2024) 115 NSWLR 489; [2024] NSWCA 227

Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11

Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7

Wantagong Farms Pty Ltd as Trustee for the Bulle Family Trust v Bulle [2015] NSWSC 1603

Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

Watson v Foxman (1995) 49 NSWLR 315

Williams v The Minister Aboriginal Land Rights Act 1983 [2000] NSWCA 255; (2000) Aust Torts Rep 81-578

Wolfenden v International Theme Park Pty Ltd (trading as Wonderland) [2008] NSWCA 78

Category:

Principal judgment

Parties:

Christina Jane Kronenberg (First Appellant)
Tracey Maree Ford (Second Appellant)

Scott Alexander Macaulay (First Respondent)
Craig Neil Macaulay (Second Respondent)

Representation:

Counsel:
A Cheshire SC, N Kabilafkas (Appellants)
M W Young SC, M Gunning (First Respondent)
Second Respondent (in person)

Solicitors:
Jake McKinley Pty Ltd (Appellants)
Gordon Garling Moffitt (First Respondent)

File Number(s):

2024/00474065

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Equity

Citation:

[2024] NSWSC 1547

Date of Decision:

03 December 2024

Before:

Hmelnitsky J

File Number(s):

2021/00238598

HEADNOTE

[This headnote is not to be read as part of the judgment]

Scott Macaulay, one of four children of the late Neil and Janet Macaulay, farmed in partnership with his parents for nearly three decades across three properties:  Parkvale, which was owned by Neil and Janet; Miltons, which was acquired in 1994 by Neil, Janet and Scott as tenants in common; and Fairfield, which was purchased by Scott in 1999.  Wills made by Neil in 2007 contemplated Scott inheriting Parkvale and Miltons on condition that Fairfield be transferred debt-free to his brother, Craig.  However, by his final will of 2018, Neil had substantially departed from that course, leaving Parkvale and his share of Miltons to his other three children, and only a house to Scott.  Scott brought proceedings in the Equity Division seeking relief by way of declarations of constructive trust that Parkvale and Miltons were held for his benefit. 

The primary judge found that Neil had made repeated assurances that Parkvale and Miltons would pass to Scott, conditional on the transfer of his interest in Fairfield to Craig. His Honour further found that Scott relied on those assurances to his detriment by committing his working life to the partnership, and that it would be unconscionable for the estate to depart wholly from those assurances. Therefore, the elements of proprietary estoppel were made out and relief was granted by a declaration of a constructive trust over both Parkvale and the estate’s interest in Miltons, on the condition that Scott transfer Fairfield to Craig free of debt. As to the partnership accounts, the primary judge held that Janet’s one-third share passed to Neil on her death, that Miltons was not partnership property, and that the debt over Fairfield was not repayable. His Honour also considered that it was unnecessary to determine Scott’s alternative claim for family provision under s 59 of the Succession Act 2006 (NSW).

Christina and Tracey, Scott’s sisters, brought this appeal, arguing that the primary judge erred in: (i) finding that the many statements made by Neil to Scott were, in their context, sufficient to ground an estoppel; (ii) finding that Scott relied upon those statements, and did so to his detriment; and (iii) granting relief.

The Court held, allowing the appeal:

Per Leeming JA, Mitchelmore and Free JJA concurring:

(1) The representations made to Scott were limited to Scott’s inheritance by will in the event Neil predeceased him. Although people are free to change their wills from time to time, it was reasonable for Scott to conclude that what Neil said as to his will was understood to be irrevocable, bearing in mind the deference afforded to the trial judge: [123]-[150].

Wantagong Farms Pty Ltd as Trustee for the Bulle Family Trust v Bulle [2015] NSWSC 1603, Barnes v Alderton [2008] NSWSC 107; 13 BPR 25,281, Bassett v Cameron [2021] NSWSC 207, Biogen Inc v Medeva plc [1997] RPC 1, applied.

(2) Consideration of whether if the case be one of estoppel by encouragement based on a promise, the promise must be clear and unequivocal: [151]-[160].

Kramer v Stone [2024] HCA 48; 99 ALJR 126, considered.

(3) Scott failed to discharge the onus of establishing reliance. Scott’s acquisition of Fairfield in 1999 could not amount to reliance on an assumption that he would be given Parkvale, because no representation before 1999 was identified. Nor was there any alleged promise from Neil that preceded Scott’s joining the partnership. This is a case where a child stays on the land and works in a farming partnership, obtaining legal title to significant parts of the land in circumstances where he otherwise could not independently do so. When the strongest aspect of Scott’s case on the representations occurred in 2007 by virtue of Neil’s will, Scott had been a member of the partnership for 18 years and no separate form of reliance was identified: [181]-[205].

Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19, applied. Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10, distinguished.

(4) In assessing whether Scott had suffered detriment by virtue of sustaining the partnership, it would not be possible to find that Scott’s position (aside from any estoppel claim) would have been better off by leaving the partnership as a young man. Where the proprietary estoppel is in respect of a testamentary promise, the assessment of detriment may be subject to the powers conferred by the Succession Act to make orders for family provision contrary to the testator’s testamentary freedom: [206]-[217].

Q v E Co [2020] NSWCA 220; 383 ALR 469, Donis v Donis (2007) 19 VR 577; [2007] VSCA 89, Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 (2022) 277 CLR 445; [2022] HCA 38, Priestley v Priestley [2017] NSWCA 155, considered.

(5) The approach to relief disclosed error. Unlike claims under the Succession Act for orders for family provision, it is unclear how a claim of proprietary estoppel against Neil or the executors of his estate could generate the result that, as a condition of obtaining relief, Scott must renounce his inheritance, repay the debt on Fairfield to the partnership, and transfer Fairfield to Craig: [221]-[231].

JUDGMENT

1. LEEMING JA: The parties to this appeal are the four children of the late Neil Macaulay who died in 2021 and his wife Janet who predeceased him in 2012. The appellants are their two daughters, Ms Christina Jane Kronenberg and Ms Tracey Maree Ford. The respondents are their two sons, Mr Scott Alexander Macaulay and Mr Craig Neil Macaulay. Without conveying either disrespect or undue familiarity, I shall refer to family members by their given names.

2. The litigation concerns adjoining farms known as “Parkvale” (some 2,121 acres) and “Miltons” (some 404 acres) which were owned or co-owned by Neil at the time of his death. Neil owned Parkvale, and co-owned Miltons with Scott as tenants in common. A partnership operated an agricultural business over Parkvale, Miltons and a third adjoining property, Fairfield (some 607 acres) which also adjoins Parkvale and which is in Scott’s name. The partnership had originally been constituted by Neil, Janet and Scott, but after Janet’s death was continued by Neil and Scott alone. The farms are some 10 kilometres to the north east of Parkes, on the road to Wellington, and combined mixed cropping with livestock activities.

3. Janet’s will left her entire estate to her husband. By will made in August 2018, which was the will admitted to probate, Neil left a residential property “Endeavour Place” in Parkes to Scott, but the balance and substantial majority of the estate was left to Christina, Tracey, and Craig in equal shares. The three were also appointed executors. According to the inventory annexed to the grant of probate, the main assets of the estate were Parkvale valued at $6,100,000, the estate’s interest in Miltons valued at $1,000,000, “Endeavour Place” valued at $470,000, bank deposits, shares and superannuation of some $1,450,000, farming equipment of $130,000, and debts owed by Parkvale Farm Pty Ltd of $424,855 and by the partnership in an unspecified amount.

4. Scott brought proceedings in the Equity Division of this Court, primarily seeking relief by way of declarations of constructive trust that Parkvale and Miltons were held for his benefit, based on a series of representations to the effect (speaking generally) that the farms would “ultimately” be his, or, alternatively, based on a “common intention” constructive trust or a “joint endeavour” constructive trust. The latter was a reference to a constructive trust of the type recognised in Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78 and Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59. It is unnecessary for the purposes of this appeal to consider whether there is any species of common intention constructive trust which is not apprehended by either proprietary estoppel or a joint endeavour constructive trust.

5. In the further alternative, Scott sought an order for family provision pursuant to s 59 of the Succession Act 2006 (NSW). The defendants were his brother and two sisters, and the three filed a joint defence and a joint amended defence. There were no cross-claims.

6. There was a single trial on all issues. However, at the time of trial, Craig was not represented by counsel and solicitors who acted for his sisters, but instead appeared unrepresented for himself. He was cross-examined, but did not cross-examine Scott or Christina and only cross-examined Tracey briefly. After the evidence concluded, Craig addressed relatively briefly, including by reference to notes recorded by Neil’s accountant at a one-on-one meeting with Neil on 29 February 2016 when Neil favoured drafting a will which would divide the total land between both sons “so that each son would have sufficient land utilised as farming that would give a decent return”, and which went on to record transferring Fairfield and some of the paddocks of Parkvale to Craig with the balance going to Scott.

7. The primary judge reserved following a ten day trial, and delivered reasons for judgment occupying 498 paragraphs some three months later: Macaulay v Macaulay [2024] NSWSC 1547. Speaking generally, the primary judge upheld Scott’s claims, based on statements made over around three decades by Neil that the farms would be his and ordered substantial relief in his favour, but doing so conditionally. His Honour said in the last six paragraphs of his reasons that it was unnecessary to deal with the claims that Parkvale and the part of Milton owned by Neil were held subject to a common intention constructive trust or a joint endeavour constructive trust, and that it was unnecessary and in any event inappropriate to deal with the application for family provision.

8. The orders declared that the executors held legal title to Parkvale, save for three paddocks, and all of their interest in Miltons, on trust for Scott, subject to the condition that Scott convey free and clear title to Fairfield to Craig, and renounce the devise of the residential property to him under the will. The three paddocks are unimaginatively named “U”, “AE” and “Q” and extend to the west of Fairfield, increasing its area from 607 to 802 acres and giving it access to a bore contained in paddock “AE”. The paddocks are large; paddocks “U”, “AE” and “Q” together comprise almost 200 acres and amount to almost 10% of Parkvale.

9. His Honour also declared that the partnership that had originally been formed in 1989 between Neil, Janet and Scott had been carried on by Neil and Scott as equal partners, and that Scott owed the amount of $453,288.11 to Neil and Scott in relation to the refinancing of Fairfield.

10. Thus, the difference from Scott’s perspective between the result under the will and the result under the judgment is that under the latter he obtained around 90% of Parkvale (all save for paddocks “U”, “AE” and “Q”), and the half of Miltons he did not already own as a partner, but subject to conditions that (a) he had to transfer Fairfield to his brother, (b) he had to repay the debt he owed to the partnership of $453,288, and (c) he had to renounce Endeavour Place. The appeal proceeded on the basis that Scott would choose to satisfy those conditions (a course which would prima facie be rational in light of the apparent value of Parkvale and Miltons). Both under the will and under the judgment, he became a 50% partner in a partnership whose other half was owned by his siblings and which needed to be wound up.

11. From Craig’s perspective, instead of the one third interest in the estate excluding Endeavour Place which he would have received under Neil’s will, under the orders made at first instance Craig will likely receive the entirety of Scott’s farm Fairfield, clear of debt, plus a third of the residuary estate which includes the three paddocks “U”, “AE” and “Q” of Parkvale. This resembles Craig’s closing submission, save that rather than acquiring those three paddocks outright, Craig is jointly entitled to them with Christina and Tracey.

12. From the perspective of Christina and Tracey, they remain one third residuary legatees of a greatly diminished estate, which will now include the residential property but will exclude the most valuable assets, namely, Parkvale (save for paddocks “U”, “AE” and “Q”) and Neil’s interest in Miltons.

13. Christina and Tracey have brought this appeal. By way of summary, the appellants do not challenge the findings that over many years Neil made the statements to Scott, but they say that they were, in their context, insufficient to give rise to an estoppel (grounds 1-4), that the primary judge erred in concluding that Scott had relied upon them (grounds 5-9), and to his detriment (grounds 10-12), and they say that the primary judge erred in granting relief (grounds 15-20). A challenge to the finding that the partnership had become carried on by Neil and Scott in equal shares (grounds 13 and 14) was abandoned shortly prior to the hearing.

14. Scott opposes all aspects of the appeal. There is no notice of contention dealing with the aspects of his case left undetermined. Craig appeared unrepresented, as he did at trial. He supports the decision of the primary judge.

15. The appeal lies as of right from a final hearing involving an amount considerably in excess of the $100,000 specified in s 101(2)(r) of the Supreme Court Act 1970 (NSW). It turns principally on questions of fact. Some of the issues of fact are documentary, but many are informed by testimonial evidence. This Court must make proper allowance in favour of the primary judge who saw the four siblings and other witnesses give evidence as the trial unfolded, as Mr Young SC stated, who appeared with Mr Gunning for Scott in this Court (but not below), in accordance with Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]-[29] and Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55]. Mr Cheshire SC, who appeared with Mr Kabilafkas for the appellants in this Court (but not below save in relation to a supplementary hearing), acknowledged this, and maintained that he did not seek to overturn any finding of primary fact, as opposed to the conclusions reached by the primary judge that the elements of an estoppel had been made out, and as to the exercise of discretion in granting relief.

16. Enough has been said to demonstrate that the outcome is a surprising one. The primary judge found that Scott had made “life changing decisions” based on representations that Parkvale and Miltons would be his. There are large issues whether the representations found by the primary judge were made, and relied upon by Scott, and whether in doing so he suffered material detriment, but put that to one side. On Scott’s pleaded case, those representations were unqualified and took place over some two decades. Yet the relief fell well short of that, in that not only was he required to give up the only property he in fact received under his father’s will, but he was also required to give up a substantial farm held by him in his own right – which he had owned to the knowledge of his father throughout decades of representations being made. Scott also did not receive some 200 acres of the farm he was promised. Further, the conditions imposed by the judge’s orders worked in two quite distinct ways. The devise to Scott of Endeavour Place fell into residuary estate, but the practical effect of the orders made is that the farm Scott had owned for decades was to be transferred not to the estate as part of the price of obtaining relief for the proprietary estoppel, but instead to his brother’s substantial advantage and to his sisters’ substantial disadvantage. And some 200 acres of Parkvale continued to be held beneficially by the estate, to be divided between Christina, Tracey and Craig. It would seem that those acres are insufficient to conduct an independent farming operation, while at the same time they have a special value if combined with Fairfield (to be owned by Craig) or Parkvale (to be owned by Scott). That is to say, the practical effect of the orders is not to resolve the controversy between the siblings, but instead to divide the ownership of the farms so as to require a further agreement between them.

1. The explanation for some of those unusual aspects, and an important aspect of the case, was that from no later than 2007 Neil’s testamentary intentions changed. Rather than Scott receiving all the land, Scott was to receive Parkvale (or most of it) and Miltons, on condition that Scott transfer Fairfield to Craig. That was reflected in wills drafted by Neil in 2007, and there was a deal of evidence that that remained Neil’s position for almost a decade after 2007. The change is significant in relation to Scott’s reliance on the earlier representations, and the way in which orders were made.

2. The primary judge did not determine the claim for an order for family provision. That course was available to him because, having found Scott to be entitled to most of Parkvale and all of Miltons, he did not see any circumstance in which Scott would be entitled to further provision. His Honour added that if he were wrong about proprietary estoppel, it was not possible to determine the claim for family provision prior to the partnership being wound up. His Honour stated at [497] that this was by no fault of any of the parties.

3. The failure to determine, whether actually or contingently, the claim under the Succession Act would have come as a surprise to the parties, who exchanged lengthy closing submissions on that claim (paragraphs 148-184 of the plaintiff’s closing written submissions, and paragraphs 374-420 of the defendants’ closing written submissions) and brief oral submissions on that claim. So far as I can see, the primary judge gave no indication that he might not determine it. A great deal of the judgment, insofar as it is directed to the relations between Scott and Neil, and especially the large rift between them (leading to various allegations of assault, a criminal trial (where Scott was found not guilty) and an apprehended violence order) reflects the evidence adduced by the parties which was principally if not wholly relevant to the discretion to make an order for family provision.

4. This approach departed from “the general principle that a trial judge should determine all issues in order to assist the appeal process and obviate the need for a retrial”, as Bell CJ, Mitchelmore JA and I said in Transport for NSW v Hunt Leather Pty Ltd (2024) 115 NSWLR 489; [2024] NSWCA 227 at [99]. There are occasions where it is unnecessary to take that course, as noted by Ward ACJ, Kirk JA and me in Shinetec (Australia) Pty Ltd v The Gosford Pty Ltd [2024] NSWCA 174 at [129]-[131]. But the general position remains as Giles JA said in Wolfenden v International Theme Park Pty Ltd (trading as Wonderland) [2008] NSWCA 78 at [6]:

It is appropriate to remind that it is in the interests of the parties, in avoiding expense and delay in establishing their rights and obligations, and in the interests of the administration of justice, in efficient use of the public resource of court time and judicial decision-making, that trial judges should generally make all appropriate findings material to liability and proceed to assessment of damages, even if finding against the plaintiff on a limited basis. That is not, of course, something which should invariably be done. It must depend on the circumstances, but having well in mind the description of a new trial as “an evil and a deplorable result, to be avoided wherever possible”: per Kirby P in Palmer v Clarke (1989) 19 NSWLR 158 at 164 and cases cited.

21. A recent example where the court has determined a family provision claim in the alternative, despite having accepted the plaintiff’s claim based on estoppel, is Erem v Moussa [2024] NSWSC 641 at [276]. Indeed, as Robb J observed in Daniel v Athans [2022] NSWSC 1712 at [183], in addition to judicial efficacy, matters bearing on the family provision claim may provide further context for the estoppel claim.

22. But the short point is that ordinarily there is no good reason not to determine fully litigated alternative claims, even if there are difficulties in doing so because of the way the evidence has been adduced. The greater evil, ordinarily, is a re-trial. The remitter which is necessary in light of the success of this appeal is a consequence of a fully-litigated claim not having been determined at trial.

The property

23. There are three “farms” in this litigation, although in point of law each comprised a number of separate parcels of land, and in point of fact each comprised a number of paddocks and some improvements. The reasons of the primary judge included the following sketch, slightly amended from a sketch which was in evidence, but to which no party made any objection, to describe the general layout of the properties:

24. Parkvale contains a homestead and many farming improvements. Fairfield also contains a house and some farming improvements (including sheds and facilities for grain storage) but not so many as Parkvale. The primary judge stated that “the Partnership farmed all of the lands together using the far better and constantly maintained infrastructure on Parkvale”. Significantly for the relief ultimately granted, the primary judge observed at [23] that:

Fairfield has a couple of dams but does not generally have good access to water. Parkvale, on the other hand, has good water access, including a bore located in the handle of the battle-axe-shaped northern paddock marked AE on the diagram [above].

25. The three paddocks within Parkvale which were to be transferred to Craig are marked “U”, “AE” and “Q” on the northern boundary. The “battle-axe” paddock AE contains a bore in its “handle”.

The acquisition of the properties

26. In September 1988, Neil and Janet sold properties in Cootamundra and purchased the 2,121 acres comprising “Parkvale” as joint tenants. The purchase price was $1,082,500.

27. At that time, Scott was around 25 and had spent around a decade after leaving school working in agriculture, including most recently on a farm exchange in Alberta, Canada. On 30 June 1989, a partnership known as the “Parkvale Pastoral Co” was established between Neil, Janet and Scott. Despite the name, no company was incorporated, and the three farmed Parkvale as a partnership. Each of Neil, Janet and Scott had a one-third interest in the partnership until Janet’s death in 2012. Neil and Scott continued thereafter as partners until 2017. (Lest it cause confusion, “Parkvale Farm Pty Ltd” mentioned above as a debtor to Neil’s estate is distinct from the name of the (unincorporated) partnership; the primary judge noted at [307] that apparently that company was the trustee of a trust established after the dissolution of the partnership in 2017, and it may for present purposes be disregarded.)

28. In January 1995, Neil, Janet and Scott completed the purchase of the 404 acres comprising “Miltons” as tenants in common in equal shares. The purchase price was $270,000. Thereafter the partnership farmed Miltons as well.

29. In 1999, Scott purchased the 607 acres comprising Fairfield. Scott became the registered proprietor of the land. The purchase price was $466,000. I shall return to how this was financed shortly. The partnership thereafter farmed Parkvale, Miltons and Fairfield, using various facilities (such as sheds and silos) which were predominantly located on Parkvale. The primary judge found at [433] that the partnership did not pay rent to Scott for the use of Fairfield. The position concerning rent is far from clear. The financial statements prepared on behalf of the partnership show wildly fluctuating expenses of rent: in 2010 rent of $123,120 was paid; in 2011, $5,698; in 2012 $61,560; in 2013, 2014 and 2015 zero. It has not been possible by reference to the materials in the appeal books to identify who derived the prima facie assessable income of $123,120 paid by the partners by way of rent in the financial year ended 30 June 2010.

30. Scott married his first wife Ann-Maree in 1990. They originally lived in a shearer’s cottage on Parkvale, but moved into a house in Victoria St, Parkes in the mid 1990s. After purchasing Fairfield in 1999, Scott and his family (which by then included three children) lived in the homestead until around 2003 or 2004, when their eldest child started high school and they returned to Victoria St. Scott and his wife separated in around 2006, when the region was severely affected by drought, and Scott spent time working in the mines as well as seeking to maintain the farms. After the divorce, Scott returned to Parkvale (by this time, his parents had moved to Endeavour Place). The primary judge recorded at [54] that it was unclear how long Scott lived at Parkvale after 2012, but inferred that in 2015, his new partner Cathie purchased a home at Hillcrest Avenue, Parkes where he moved at some point and which remained Scott’s permanent address.

31. As noted above, in 2005, Neil and Janet purchased a house in Endeavour Place, Parkes, and moved there from the Parkvale homestead.

The financing of the farms

32. Parkvale. Parkvale was purchased by Neil and Janet using, in part, the proceeds of sale of properties owned by them in Cootamundra.

33. Miltons. The evidence contained a receipt for $27,000 seemingly dated 4 December 1993 and an undated memorandum of transfer, to Neil, Janet and Scott as tenants in common for the land to the south of Parkvale known as Miltons. The stated price was $270,000. An index to the supplementary appeal books stated that the transfer was registered on 21 January 1994. That is consistent with documents obtained from the Commonwealth Bank which were in evidence. These included an acknowledgement signed by Neil dated 12 January 1994 to the manager of the Cootamundra branch of the Commonwealth Bank of Australia recording that he guaranteed the obligation of Neil, Janet and Scott to repay up to a maximum of $320,000, which guarantee was secured by a mortgage over Parkvale. The Bank’s security register indicates that each of Neil and Janet provided such acknowledgements on 12 January 1994.

34. In short, and I did not understand there to be any dispute about it when the appeal was heard, the deposit for Miltons and the financing of the loan which paid the balance of the purchase price was paid by the partnership.

35. Fairfield. Precisely how Fairfield came to be purchased is not clear. Scott was the sole registered proprietor, and he borrowed money from the CBA to acquire it. Scott’s affidavit had said that the partnership had borrowed funds to purchase Fairfield, it was an interest only loan, and the partnership paid the interest repayments. He confirmed as much in cross-examination. There was a large issue at trial, called the “paper debt” or the “Fairfield debt” issue, because for many years the partnership financial statements recorded a debt owed to the partnership by Scott. The primary judge found at [432]-[433]:

432 The evidence does not allow me to reach a conclusion as to where the whole of the purchase price for Fairfield came from, but there was no dispute that the bulk of the purchase price was funded by the proceeds of a loan taken out by Scott from CBA. There was some evidence to suggest that the deposit was paid by the Partnership, but the property was placed solely in Scott’s name. The loan was secured by, at least, a mortgage over Fairfield. The evidence does not allow me to reach a firm conclusion as to whether CBA took security over any other assets to secure repayment of the loan to Scott. Some evidence suggests that the partners all personally guaranteed the loan and mortgaged their own properties to secure those guarantees. The Partnership serviced the interest on that loan from the acquisition right up until 2011 when it was subsumed into the Rabobank facility. It is unclear whether this affected Scott’s current account with the Partnership.

433 Fairfield was used in the business of the Partnership. It was farmed in conjunction with Parkvale and Miltons. The Partnership did not pay rent to Scott for the use of Fairfield. There was never any attempt to identify profits attributable to Fairfield.

36. There was no challenge to those findings. Thus in point of law, the large majority of the purchase price was provided by Scott, who borrowed money from the Commonwealth Bank which he was personally liable to repay, and which was secured inter alia by a mortgage over Fairfield: Calverley v Green (1984) 155 CLR 242 at 257; [1984] HCA 81. That is so notwithstanding that it appears that in point of fact the deposit was paid by, and the mortgage serviced by, Neil, Janet and Scott as partners.

The Rabobank refinancing

37. Significantly for Scott’s claim of reliance and detriment, Neil, Janet and Scott refinanced with Rabobank in 2011. Prior to the refinance, Scott owed Commonwealth Bank some $453,288.11 for the purchase of Fairfield, while Neil and Janet owed $420,000 for the purchase of Endeavour Place. In addition, the partnership had borrowed from the Commonwealth Bank. These separate debts were replaced by a single facility on which all three were primary debtors. The primary judge explained this at [141]-[144]:

141 In late 2010 or early 2011, Scott, Neil and Janet came to the joint decision to refinance the various facilities they had with CBA. Some of these facilities were for personal loans and others were for partnership borrowings. Neil and Janet had a loan facility with a balance of $420,000, which had been taken out to purchase the Endeavour Place property. Scott had a loan with CBA for funds used in purchasing Fairfield. The Partnership also owed money to CBA. The 2010 statements show this liability differently but at least in 2006 and 2008, the accounts showed two separate liabilities owing to CBA, one for an “overdraft” facility and another entitled “bank finance”.

142 Rabobank offered an all-in-one debt facility which provided an interest only loan with no compulsion to continually pay down the debt. Mr Haggarty, the banker at Rabobank who assisted with the refinance, gave evidence in the proceedings. He said that Neil and Scott told him that they were not happy with the service they were receiving at CBA. He remembers that it was their intention to pay down their debt as much as possible to increase their equity in order to buy a new neighbouring property. Scott says they were attracted by the opportunity to consolidate the debt into one account.

143 Whatever their motivation, on 27 January 2011, Neil, Janet and Scott signed an acceptance and acknowledgment with Rabobank to facilitate the refinancing. An aspect of the arrangement was that Parkvale and Fairfield were mortgaged to Rabobank to secure the facility.

144 As part of the Rabobank refinancing arrangements, the Partnership took over the personal debts of Neil, Janet and Scott, namely the debts used to purchase Endeavour Place and Fairfield. In the partnership accounts these debts were incorporated into the Rabobank facility. Simultaneously, corresponding loans from the Partnership to Scott, representing the value of his old CBA loan, and to Neil and Janet, representing the value of their old CBA loan, were recognised as assets of the Partnership. Accordingly, the partnership accounts for 2011 records non-current receivable loans named “Loan: Scott Macaulay re: Fairfield” in the amount of $453,288.11 (being the Fairfield debt) and “Loan: NJ & JT Macaulay (Refinance Loan)” in the amount of $420,000 (representing the Endeavour Place debt). The Fairfield debt remained on the financial statements of the Partnership in subsequent years. The Endeavour Place debt was apparently repaid by journal entry in 2014/2015, being “set off” against Neil and Janet’s partners’ funds which, at the relevant time, had a significant credit balance. For this reason, the Endeavour Place debt no longer appeared in the financial accounts from the 2015 financial year onwards.

38. Consistently with that account, the Rabobank statements in evidence suggest (because a debit of $1,094,814.50 on 13 April 2011) that it was on that date the existing indebtedness to the Commonwealth Bank was repaid. As the primary judge said, the partnership financial records for the year ended 30 June 2011 recognised the indebtedness to Rabobank as a liability, and raised assets of $420,000 owed by Neil and Janet, and $453,288.11 owed by Scott (in the previous year, Scott was recorded as owing only $6,526.96 and Neil and Janet owed nothing). The entries were described as “Loan: Scott Macaulay re: Fairfield” and “Loan: NJ and JT Macaulay (Refinance Loan)”.

39. The effect of the Rabobank refinance is that all three partners (Neil, Janet and Scott) became personally liable for in excess of $1,000,000 owed by the partnership to Rabobank, at least in large measure reflecting money borrowed to acquire Fairfield and Endeavour Place.

40. Thereafter Scott’s debt to the partnership remained constant. Indeed, that debt was in issue at trial, and was determined, adversely to Scott, requiring him to repay the partnership in the same amount of $453,288.11. The effect of the refinancing was that Scott enjoyed an interest-free loan from the partnership of substantially the entire purchase price of Fairfield, while the partners (of whom he was one) paid the cost of financing that indebtedness.

Neil’s and Janet’s wills

41. Neil and Janet made mutual wills in January 1988, leaving their estates to the other and to their children in equal shares if their spouse predeceased.

42. In February 2007, Neil and Janet made further mutual wills. Neil’s will was in evidence. It and a later will he made that year were important elements of Scott’s case.

43. Neil’s February 2007 will was partly handwritten and partly typed. Neil left his estate to Janet, but if she predeceased him, Fairfield was to be left “debt free” to Craig, while Scott was to receive (a) Parkvale, (b) Neil’s two thirds share of Miltons, (c) Neil’s interest in the partnership, subject to paying partnership debt of $300,000 and the Fairfield debt of $260,000 and its transfer to Craig, and payment by Scott of $250,000 to each of the other three children should he enter into a property settlement prior to 2017 (there were more details but they do not matter). As the primary judge noted at [73]:

The overall scheme of the February 2007 Wills so far as the farmlands were concerned was therefore that Scott would inherit both Parkvale and Miltons, subject to the whole of the partnership debt, on condition that he first transfer to Craig free and clear title to Fairfield.

44. It will be seen that Neil regarded Fairfield as his to dispose of by will.

45. In October 2007, a professionally drafted will, to the same general effect as the February 2007 will, was drawn up and executed. It contained an error, in that it left two thirds of “Fairfield” (which Scott held in his own name) to Scott, and made no mention of “Miltons” (which was owned by Neil, Janet and Scott as tenants in common, and which in the event that Janet predeceased Neil without altering her will, would be owned as to two thirds by him).

46. Significantly (and assuming the reference to Fairfield in the October will is to be read as Miltons), both these 2007 wills reflected what Scott said was the revised assumption induced by Neil, that he would receive Parkvale and the remaining share of Miltons, but on condition that he transfer Fairfield debt free to Craig.

47. In August 2016, Neil made another will. By this time, Janet had died and Neil was aged 81. There had also been a series of fallings out between Neil and Scott. Neil’s will was professionally drafted and left the entirety of his estate to the four children in equal shares. The primary judge recorded at [81]:

A prominent aspect of the second and third defendants’ evidence was that the 2016 Will represented a division of Neil’s estate for which Scott, for a time at least, positively advocated and to which he actually agreed. For reasons I will explain, I do not accept that evidence. Neither Neil nor any other member of the Macaulay family could sincerely have believed that Scott wanted or agreed to a four-way split of Neil’s estate, including the farms, in August 2016.

48. There was no challenge in this Court to the rejection of Christina’s and Tracey’s evidence on that issue.

49. Neil’s final will was made in August 2018. Under that will, which was the will admitted to probate, Scott was to receive Endeavour Place, but the balance of Neil’s estate was to be divided between Christina, Tracey and Craig in equal shares.

50. The primary judge recorded at [5]:

Scott farmed Parkvale, Miltons and Fairfield in the Partnership for most of his adult life up until 2017, when there was a serious rift in the family. This rift, which had been brewing for some time and which was largely stoked by disagreement as to what Neil’s will should provide for Scott and Craig, eventually resulted in Scott being banished from the farm, in the termination of the Partnership, and in Scott being ostracised from the family altogether. There were numerous allegations that Scott had physically assaulted Neil, including one which became the subject of criminal proceedings, where Scott was found not guilty at trial.

The representations on which Scott relied

51. The pleading of Scott’s claim which went to trial alleged that:

From 1988 to 2017, Neil represented to the Plaintiff, by his words and his conduct on numerous occasions, and by his Will dated 15 October 2007 (“the 2007 Will”), that the Plaintiff would:

a. inherit and/or become the owner of the whole of Parkvale and Miltons; and

b. continue to farm and wholly own Parkvale, Miltons and Fairfield in his own right once Neil ceased being a partner of the Partnership (“the Representations”).

Particulars

Neil made the Representations verbally on numerous occasions, including in various meetings with:

• the Plaintiff, particularly when Neil and the Plaintiff discussed decisions regarding grain and wool sales, blood lines of livestock, purchases and sales of seed and grain, purchases of fertiliser, long-term soil agronomy, and purchases of machinery and infrastructure;

• the Plaintiff and representatives of Rabobank, the bank to whom mortgages were granted over Parkvale, Miltons and Fairfield, from 2010 to 2017;

• the Plaintiff and representatives of Twomeys, the accountants for the partnership;

• the Plaintiff and agronomists, livestock agents and other third parties who were dealing with or selling plant and machinery to the Partnership from 1988 to 2017;

and

• the Plaintiff and Craig Macaulay, Christina Kronenberg and Tracey Ford.

52. Scott’s case was straightforward. He said that Neil had promised, repeatedly, over a thirty year period, that he would “inherit and/or become the owner of the whole of Parkvale and Miltons”, in a series of one-on-one conversations, in family discussions, and in dealings with third parties, as well as in Neil’s October 2007 will.

53. As will be seen, the primary judge found that the words said to have been spoken by Neil were spoken, and there was no challenge to those findings of primary fact. But that is far from the end of the challenges in this aspect of the appeal. It may assist understanding the balance of these reasons to sketch the complexities and how they arose.

54. First, it will be seen that the pleading alleged three decades’ oral representations, and relied on the 15 October 2007 will. But the third decade of that timeframe, from no later than 2007 until 2017, had to accommodate the fact that Neil repeatedly required that Scott would give up Fairfield to Craig. Faced with that evidence (including the terms of the October 2007 will), the case advanced at trial was qualified by a condition that Scott’s entitlement to Parkvale and Miltons was subject to his transferring Fairfield to Craig (see Tcpt 26.08.24 T817.10-23).

55. Secondly, the pleaded case extends to and distinguishes between the real property (Parkvale and Miltons) and the partnership business. The representations tended to be confined to the former.

56. Thirdly, it is one thing to find that certain words were said. It is another to characterise the representation conveyed by those words. In particular, there is a familiar distinction between cases of proprietary estoppel leading to an inter vivos entitlement to the transfer of an interest in land, and cases leading to the representor, if he or she predeceases the representee, being obliged to transfer an interest in land by his or her will. The pleading does not explicitly address this.

57. Fourthly, the pleading and the submissions at trial and the reasoning of the primary judge segregated the “issues” of representation and reliance and detriment as though they were discrete. But they overlap, and in a number of different ways. For one thing, where the representations are said to have been made over some thirty years, it is self-evident that the steps taken by Scott in reliance upon them occurred over a long period of time, and some of those steps preceded some of the representations. This is acutely important in relation to things done in reliance of what was said in the first twenty years, before the change of case (whereby as a condition of receiving Parkvale and Miltons, Scott had to give up Fairfield). For another, with the benefit of hindsight, it is now known that for the last decade, the representations were materially different (subject to a point raised by Scott whether giving up Fairfield was significant). The appellants emphasised that that, coupled with other changes (such as the question of various northern paddocks of Parkvale also being left to Craig) informed the assessment of whether it was reasonable for Scott to have relied on any of the representations.

58. Those considerations produce the result that while the findings of the representations are challenged in grounds 1-4 of the appeal, it is convenient, before addressing the evidence and his Honour’s reasons and the parties’ submissions on those grounds, first to address his Honour’s findings concerning the events between 2014 and 2018 leading to the rift between Scott and Neil and resulting in the substantial change between the 2016 and 2018 wills, and the wills of 2007.

Events of 2014-2018

59. A great deal of the evidence, and a great deal of the reasons of the primary judge (paragraphs [147]-[322], which is to say around one third of the judgment), concern the events of the five years 2014-2018. His Honour’s reasons recount the evidence and make findings of fact. All were favourable to Scott, and none is challenged on appeal. I shall summarise them relatively concisely, following the same order.

60. The two important non-family members in this part of the narrative are Mr Geoffrey Twomey, the partnership’s accountant based in Cootamundra and Young, and Mr Graham Billing, a solicitor based in Orange. Mr Twomey gave evidence and the primary judge regarded him as an impressive witness. Mr Billing did not give evidence.

61. The suggestion that the 2007 will be revisited. By letter dated 22 December 2014 to Mr Billing, Mr Twomey raised a number of matters concerning the will, following a conference with Neil and Scott on 16 December. After referring to a number of errors in the will, the letter stated that the resultant acreage under the will (whereby Scott was to transfer Fairfield to Craig but receive Parkvale and the remaining share of Miltons) would be approximately 80% to Scott and 20% to Craig, and that the livestock should be split in the same ratio. The primary judge accepted that Mr Twomey was a thoughtful witness, and the letter accurately reflected his instructions, leading to the finding that “Neil’s testamentary wishes as at December 2014 had not materially changed since 2007”: at [150].

62. The June 2015 meeting. This meeting with Mr Twomey was attended by Neil and all four children. Mr Twomey had prepared an agenda. Omitting the aspects of the account that concerned the partnership structure (which are no longer part of the appeal), the primary judge reproduced an agenda for a meeting of 11 June, the first item of which was:

Discuss Neil’s new will and show errors in old will. Go through suggested changes as per Twomeys correspondence. Get input from Graham Billing re his meeting with Neil and the girls.

63. The primary judge at [156] recounted some of the testimonial evidence at the meeting, and found that the substance of Scott’s recollection was correct:

100. During the meeting I recall that we discussed clause 4.3.2 of the Will. Dad said to everyone at the meeting words to the effect of:

‘What Scott has (referring to Fairfield) is to go to Craig, and what I have (referring to Parkvale and his two-thirds interest in Miltons) is to go to Scott. This clause has the wrong property. Miltons goes to Scott, not Fairfield because Scott owns Fairfield.’

101. Dad also said words to the effect:

‘The house in Orange is to go to Tracey (who was living in it at the time). My share in the super is to be split between Tracey and Christina. The Parkes house (being the residence that Dad purchased in 2005) is to go to Christina.’

64. That evidence accorded with Mr Twomey’s recollection.

65. The 30 September 2015 meeting. Neil and Scott met Mr Twomey again on 30 September 2015. The primary judge reproduced the following part of Mr Twomey’s notes at [165]:

Neil’s Will and Land Transfers

It was decided that we should look at the situation of land transferred under Neil’s Will.

Presently the Will is very confusing and we have had discussions with all parties and Graham Billing (a Solicitor from Orange) in this regard.

After discussing all matters with Scott and Neil today, it has been decided that we do a few essential things:

1. A new Will needs to be prepared, and in that Will, Neil should ensure that Craig receives approximately 800 acres of land for his benefit upon his passing.

With this in mind it is envisaged that the property of Fairfield, plus the 3 paddocks marked U, AE and Q on the rough map, will be the property that will be transferred. This totals 802 acres.

It was intended that perhaps this could be done prior to Neil’s passing by intergenerational transfer, however this does not meet with the satisfaction of Neil and Scott.

At this point the debt of the partnership is such that they require full usage of all land owned by Neil and Scott by Parkvale Pastoral Co for income producing in order to extinguish the partnership debt with Rabobank.

Neil feels that once he passes it will go to Craig accordingly.

If upon review of his will in 3 years time, the debt is low or extinguished then an inter-generational transfer will be considered.

2. In the Will it is envisaged that Neil will pass the property known as Parkvale to Scott on the understanding that Scott will transfer the property of Fairfield to Craig.

Also the 3 paddocks mentioned above will be transferred to Craig.

We still require a clause in the Will to permit the finalization of any harvest to be the change over time for the transfer of such property.

3. I need to look at the value of all the land, plant, equipment and livestock, taking into account the debt to Rabobank. This is to determine exactly how will the distribution upon Neil’s death impact on the transfer and the value of the proportions that will go to Craig and what proportions will stay and be transferred to Scott.

4. With this calculation Neil & Scott need to then sit down with Craig to have agreement before a new will [will] be prepared. I feel we do not need to contact the Solicitor until a basis of agreement is found.

5. No changes will be made to the entitlement of Christina or Trac[e]y.

6. The executors will be Christina and Scott.

66. The primary judge said of this that:

166. I have set this part of Mr Twomey’s note out in full to demonstrate that, as at September 2015, Neil was starting to tell both Mr Twomey and Scott that his testamentary intentions had changed, but only to the extent of allowing Craig to have land totalling 802 acres. Those 802 acres would comprise Fairfield plus some paddocks from the top of Parkvale, including the paddock marked AE which contains a bore. The rationale for such a gift was that, as explained earlier in these reasons, Fairfield does not have a reliable source of water. Neil, it seems, was of the view that Fairfield on its own was not a viable farming proposition. He does not however appear to have been considering a will along the lines for which Craig was contending, namely one that would see Craig end up with 1,065 acres. At the same time, a departure from the scheme of the October 2007 Will to allow Craig to inherit a few of the top paddocks of Parkvale was not something that Scott seems to have regarded as particularly unfair at the time.

67. The primary judge also referred to item 4 in his note and the need for there to be agreement between Craig and Scott. His Honour said at [167]:

The need for agreement was a function of two things. The first was that, as previously, Neil wanted his children to agree to the split of assets in order to avoid disputes later on. The second was that, by this stage, Mr Billing had begun to express the opinion that it was not possible for Neil to make a testamentary gift of Parkvale to Scott on condition that he transfer Fairfield to Craig, as contemplated by the October 2007 Will. As such, his testamentary plan could only be achieved by a combination of inter vivos transfers and testamentary gifts.

68. November 2015 – alleged assault. The primary judge recorded that by the second half of 2015, there was a deep antipathy towards Scott from Christina, Tracey and Craig. In part this was as to whether Craig should receive more under Neil’s will than Fairfield. Scott and Tracey fell out when Scott told her that he no longer wanted her husband to do work on Parkvale.

69. On 5 November 2015, there was an incident at Parkvale. The primary judge found that Neil assaulted Scott, approaching him from behind with a galvanised steel pipe and laying a heavy blow to him. The primary judge accepted that Neil had told Craig that evening that Scott had thrown his father to the ground and attacked him, but did not accept that that was what occurred, concluding that he was “comfortably satisfied that Scott did not assault his father on 5 November 2015”.

70. Craig gave evidence that Scott was abusive to his father on 9 November 2015, concerning the nozzle of a fuel hose which was dragged behind the ute. The primary judge found that Scott yelled at his father but was not “abusive”, and that Neil said “you won’t get an inch of this place”: at [185].

71. The February 2016 meeting and the 2016 will. Some 16 pages of reasons are devoted to these topics.

72. There was a meeting on 1 February 2016 at Mr Twomey’s office between him, the four siblings and Neil. The primary judge summarised the competing recollections of the participants. Christina and Tracey said that Scott had suggested that Neil split the estate four ways. Craig said that he suggested he receive the whole of Parkvale free of debt. Scott opposed this as well as the four way split, but said he was willing to accept Neil’s suggestion that Craig should receive Fairfield plus three paddocks in the north of Parkvale.

73. The primary judge found at [210] that there was discussion of a four-way split but that neither Neil nor Scott actually agreed to a distribution on that basis.

74. According to a letter from Mr Twomey to Mr Billing on 29 March 2016, Neil was “confused with the intentions of his children” at the 1 February meeting, and so he asked Neil to visit him when next in Cootamundra. When that occurred, Mr Twomey recorded his testamentary wishes that Christina and Tracey receive each around $950,000, that Craig should receive “approximately 1000 acres” being Fairfield plus five paddocks in the northern part of Parkvale, which would represent some 43% of the land and improvements in Neil’s estate, together with one third of the livestock. The same letter also notes that Scott “would receive 57% of his father’s land and improvement value”.

75. The primary judge then recounted with some care the documentary and testimonial evidence leading to the execution by Neil of a will on 26 August 2016, by which Neil divided his estate equally between his four children. He rejected the appellants’ contention that the 2016 will represented a division of Neil’s estate to which Scott had agreed: at [240]. He also recorded that Tracey and Christina took steps to hide the new will from Scott and Mr Twomey, while Mr Twomey continued to take steps to explore ways by which Neil could leave his land to Scott and Craig.

76. The primary judge found at [247] that Scott discovered the existence of the 2016 will on 19 September 2016. His diary note recorded “Craig informed me FARM (DAD’S) is willed to go x4 I told him it wouldn’t work! With me at the moment managing it”. The diary also records that he spoke to his father two days later, on 21 September, who told him “its not going 4x” and “Craig gets FAIRFIELD after I sign + 3 paddocks Parkvale”.

77. 16 September 2016 assault. At [251]-[254], the primary judge addressed Christina’s evidence that Neil had told her that Scott had physically assaulted Neil. His Honour noted at [253] that “Neil was entirely capable of making false allegations of assault against Scott”, and found that the assault did not occur.

78. 31 October 2016 alleged assault. Craig gave evidence that Neil had told him that Scott had thrown him down in the sheep yards. Scott denied this. Scott said that Neil had picked up a loose metal bar and threatened Scott, but that Scott had got out of his way without any physical contact. The primary judge accepted Scott’s account.

79. 4 February 2017 alleged assault. The primary judge considered whether there had been a confrontation between Neil and Scott of some kind, this time involving physical contact. However, his Honour accepted Scott’s evidence that he did not strike his father or grab him forcefully by the left arm or clothing, despite Craig saying that Neil visited him in a distressed state, with a laceration and swelling in his right cheek.

80. March 2017 – Macaulay family discussions. On 6 March 2017, all four siblings met on the verandah of the Parkvale homestead and evidently talked about Neil’s will. Scott’s note was:

Family meeting 4.30pm @ Farm… Meeting with Family was ? Sell down liquid assets… of which Scott has ½ pay back debt ½ go my way + Fairfield and 130 Ac Miltons. + when Dad deceased Scott ¼ of Total Assets (All agreed Chris Tracey + Craig as well as I. Craig would take this to Dad.

81. Of this record of seeming agreement by Scott to a four way split, the primary judge said at [265]-[267]:

This diary entry is somewhat indecipherable: it suggests that Scott may have agreed to a four-way split of assets at this meeting. However, even the second and third defendants’ evidence does not go as far as to say that Scott agreed to a four-way split. In fact, Craig’s position was that he believed that Neil had reverted to Option 1 by the time of this meeting. I find that there was no general agreement about the topic of Neil’s will on this occasion.

More evidence that Scott did not agree to a four-way split is that the following day, Scott spoke to his father to again try to discern what was happening with his will. He records as follows in his diary:

“Spoke to Dad Re above. He told me that it is not what he wanted but would go ahead. Until I said that it is the only way to go because his intentions have never been signed off on. I told him coming from Craig + Chris that a 4 way split is happening. Dad has denied it and I told him that I would go ahead until he writes down his intentions & signs off. That is why I cannot go forward farming until it is in writing. He has the intentions to see Geoff Twomey for his intention to be written down and signed off so I (Scott) [have] foundation to continue on farming without [being] white anted…”

I particularly note Scott’s reference to being unable to go ahead with farming without some certainty as to what his inheritance would be.

82. June 2017 – meeting with Mr McGroder. Neil met with a new solicitor, Mr Neil McGroder, on 29 June 2017. Scott drove him to the appointment but did not attend with him. Mr McGroder was of the view that he had testamentary capacity. His notes record that Neil gave the following instructions:

232. The result is that the orders made by the primary judge should be set aside except insofar as they deal with the partnership shares and debt owed by Scott, and the matter remitted for determination of Scott’s claim under the Succession Act. No party contended that this Court could determine that claim.

233. Order 6 made on 3 December 2024 dismissed the statement of claim. That order was itself set aside on 2 May 2025 by the primary judge on Scott’s application (see Macaulay v Macaulay (No 2) [2025] NSWSC 421 at [22] and order 4 made on that day) and accordingly it is unnecessary to remake the order so as to preserve the undetermined claim under the Succession Act. Order 2 made on that day was an order that an account of the partnership be taken by the primary judge, being the subject matter of prayer 6 of the statement of claim. It will be a matter for the judge hearing the outstanding issues (being the partnership accounts and Scott’s application for family provision) to determine how best to proceed.

234. The notice of appeal proceeded on the basis that prayer 8 of the statement of claim, which sought interest, did not survive the dismissal of the claim for estoppel, despite the undetermined partnership account and application for an order of family provision. Scott made no submission to the contrary. However, it may turn out on the taking of partnership accounts that one partner has retained monies due to the other and an order for interest is appropriate (in making that observation, I am not intending to express a view one way or the other as to whether such an order is appropriate and, if so, how it is to be calculated). But lest there be some argument that the dismissal of prayer 8 of the statement of claim impacts upon either partner’s entitlement to interest, the remitter will extend to that prayer.

235. Costs in this Court should follow the event. Craig appeared in this Court and made brief oral submissions, and subsequently filed an appearance. However, in this Court Craig did not provide written submissions, and as presently advised his appearance would not materially have contributed to the appellants’ costs. Instead, Scott assumed the burden of defending the appeal. Accordingly, the appellants should have the benefit of an order that Scott pay their costs of the appeal. If any party contends for a different costs order, application may be made in accordance with UCPR r 36.16. In light of the Calderbank offers which are known to have been made, the costs of the trial cannot be determined at this stage, and the remitter will include the redetermination of those costs.

236. I propose these orders:

1. Appeal allowed.

2. Orders 1 and 2 made on 3 December 2024 and orders 6, 7 and 8 made on 2 May 2025 be set aside, and in lieu thereof:

1. dismiss the claims of the first respondent in prayers 1, 2, 3, 4 and 5 of the statement of claim, and;

2. remit for further hearing the claims in paragraphs 7, 8 and 9 of the statement of claim, in accordance with these reasons, such remitter to include the costs of the first trial.

3. The first respondent to pay the appellants’ costs of this appeal.

239. MITCHELMORE JA: I agree with Leeming JA.

240. FREE JA: I agree with Leeming JA.

**********

Decision last updated: 28 August 2025