Laird v Vallance

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0037

STUART GRAEME LAIRD	Applicant
v
LACHLAN JAMES VALLANCE (AS ADMINISTRATOR FOR THE ESTATE OF ELLEN DOUGLAS LAIRD, DECEASED)	Respondent
S EAPCI 2022 0040

NEALE DOUGLAS LAIRD	Applicant
v
LACHLAN JAMES VALLANCE (IN HIS CAPACITY AS ADMINISTRATOR FOR THE ESTATE OF ELLEN DOUGLAS LAIRD, DECEASED)	Respondent

---

JUDGES:	BEACH and OSBORN JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	30 May 2023
DATE OF JUDGMENT:	8 June 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 138
JUDGMENT APPEALED FROM:	[2021] VSC 352 (McMillan J)

---

ESTOPPEL – Proprietary estoppel – Representations allegedly made by parents to one son that farm would pass to him – Whether representations ambiguous – Whether representations made – Whether reasonable for son to rely on alleged representations – Whether judge erred in failing to find that farm held on constructive trust for son – No error made by judge – Application for leave to appeal refused.

ESTOPPEL – Proprietary estoppel – Representations allegedly made by parents to different son that farm would pass to him and other claimant son on the retirement or passing of parents – Farm left to both sons in parents’ wills – Whether representations made – Whether judge erred in considering representations separately – Parents’ representations ultimately fulfilled by leaving farm to sons in wills – No failure by parents to adhere to representations – No error by judge in dismissing proceeding – Application for leave to appeal refused.

---

Counsel
Applicant (Stuart Graeme Laird):	Mr PG Cawthorn KC with Mr S Thomas
Applicant (Neale Douglas Laird):	Mr SD Hay KC with Ms R Grayson Morison
Respondent:	Mr DV Aghion KC with Mr PD Reynolds
Solicitors
Applicant (Stuart Graeme Laird):	Andrews Legal Group
Applicant (Neale Douglas Laird):	MST Lawyers
Respondent:	Hicks Oakley Chessell Williams

BEACH JA
OSBORN JA:

In 1948, Keith and Ellen Laird married. They had seven children: Stuart, David, Eric, Clyde, Neale, Susan and Euan. In 1971, Keith and Ellen purchased a farm known as ‘Harkaway’. They lived at Harkaway for the balance of their lives. For many years, Neale lived at Harkaway and ran cattle on the property and Stuart operated a plant nursery on part of the property.
In 2012, Keith died. In 2018, Suzanne Lyttleton was appointed as the administrator of Ellen’s estate, due to Ellen’s declining cognitive function. During the administration of Ellen’s estate, Ms Lyttleton encountered difficulties in accessing liquid funds, and made a decision that Harkaway should be sold to provide for Ellen’s urgent care needs.
In 2020, three proceedings were commenced in the Trial Division relating to Harkaway:
(a)Ellen, by her administrator, commenced a proceeding against Neale and Stuart, pursuant to Order 53 of the Supreme Court (General Civil Procedure) Rules 2015, seeking summary possession of Harkaway;
(b)Neale commenced a proceeding against Ms Lyttleton as Ellen’s administrator, in which he claimed that Harkaway was held on a constructive trust for him; and
(c)Stuart commenced a proceeding against Ellen by her administrator, Ms Lyttleton, in which he claimed that Harkaway was held on a constructive trust for him and Neale.
All three proceedings were heard together by McMillan J. On 18 June 2021, her Honour delivered reasons for judgment in which her Honour concluded that neither Neale nor Stuart had established their claims of constructive trusts over Harkaway.[1] On 15 March 2022, her Honour made orders dismissing Neale’s and Stuart’s constructive trust claims, and requiring them to pay the costs of the three proceedings.
[1]Laird v Laird [2021] VSC 352, [266] (‘Reasons’).
Separately, and on differing proposed grounds of appeal, Neale and Stuart each now seek leave to appeal against the judge’s orders dismissing the constructive trust claims and requiring them to pay costs.

Relevant background in more detail

The principal witnesses at trial, who gave evidence about the Laird’s circumstances and conversations that occurred within the family, were Stuart, Neale and Susan. They each swore or affirmed a number of affidavits,[2] which were tendered during the course of their viva voce evidence.
[2]Neale swore seven affidavits in the proceedings (although his second affidavit was described by him as being one which ‘updates and substitutes for [his first affidavit]’; Stuart swore three affidavits; and Susan affirmed two (although only her first affidavit was tendered during the course of her evidence in chief). Additionally, in her first affidavit, Susan exhibited an affidavit sworn by Neale in September 2019 in a caveat removal proceeding commenced by Ellen against Neale in 2019.
As we have already said, in 1948, Keith and Ellen married, and they subsequently had seven children. Relevantly, Stuart was born in 1949 and Neale was born in 1961. From in or around 1949, Keith commenced farming a dairy farm in Calivil, given to him by his parents.
Stuart commenced working at the Calivil property after school, on weekends and during school holidays when he was of an age to provide such assistance. His evidence was that his chores increased as he increased in age, experience, and capacity; and that from the age of about 12 or 13, he was involved in driving a tractor, fencing, fixing machinery and general farm work.
In or around 1964, Keith and Ellen bought a property near Belgrave South (‘Mount Morton’). In or around 1966, Stuart left secondary school at the end of year ten. His evidence was that he worked in a timber yard for three months and as a hairdresser for a week or two. He then started working at Mount Morton for Keith and Ellen. He recalled that he was initially paid the sum of $40 per month by Keith.
Stuart’s evidence was that after he had worked for Keith for four or five months, Keith told him that he could not afford to pay him his wage and the payments stopped soon after. Stuart said that he continued to work long hours at a minimum of 40 hours per week, and that he received a small amount of money, which he described as akin to pocket money. This unpaid work continued until 1972.
Between 1969 and 1970, Keith and Ellen sold Mount Morton in four lots. The biggest portion of 366 acres was leased by Keith and Ellen from the purchaser of the land and a small portion of the Mount Morton property was retained until around 1974. Stuart did not receive any back wages from the proceeds of sale of Mount Morton.
Stuart alleged that, between 1966 and 1972, while he worked as an unpaid farm hand, Keith said to him that he appreciated his efforts. Stuart also alleged that he had several conversations with Keith and Ellen, in which he was told words to the effect that while he could not be paid then, he would end up with the farm together with ‘any of your brothers who put in like you are’; and that he was also told ‘Whilst you [Stuart] could not be paid now, because you are working for nothing you will get it all when we pass on or when we retire’; and that ‘This will all be yours and your siblings if they help like you are’. Stuart’s evidence was that he had conversations to this effect three or four times with Keith, sometimes with Ellen present, while he (Stuart) was working at Mount Morton (‘the first promise’).[3]
[3]As to the use of the term ‘the first promise’, see paragraph 18 of Stuart’s statement of claim and Reasons, [36].
As we have already said, in 1971, Keith and Ellen purchased Harkaway. In about 1973, Keith and Ellen commenced building a house on Harkaway. The family moved there approximately a year later.
Stuart alleged that after purchasing Harkaway, Keith and Ellen said to him ‘Because you are working for nothing, you will get it all when we pass on or when we retire’ and ‘This will all be yours and your siblings if they help like you are’ (‘the second promise’);[4] and that, between 1972 and 1977, he relied on the second promise, working on various properties held by Keith and Ellen, and only receiving pocket money – not wages. Stuart alleged that Keith and Ellen said a number of times between 1972 and 1977 that they were grateful for the work that he was doing and that they could not do it without him. Stuart said that Keith and Ellen said that he would be given the family property when they retired or died, by himself or to share with any of his siblings who wanted to work the farm. At that stage, Stuart’s siblings were too young to work the farm, or had shown no interest and had left the land to pursue other careers. Stuart said that, at one stage, Keith said to him words to the effect that he (Stuart) may end up with the whole property as none of the others were showing much interest in farming.
[4]As to the use of the term ‘the second promise’, see paragraph 28 of Stuart’s statement of claim and Reasons, [40].
In or around 1977 and 1978, Keith and Ellen sold most of their farming properties but retained Harkaway, on which they ran approximately 50 head of cattle. Stuart’s evidence was that, in about 1977, Keith suggested he start a plant nursery on some of the land at Harkaway. He alleged that Keith and Ellen said to him that, as he was going to receive the property upon their death or retirement, he could use some of the land to establish the nursery on the property. Stuart was allowed to do this at no cost such as rent or fees, so long as he helped out on Harkaway when there was work to be done (‘the third promise’).[5] Stuart was able to build a successful business such that after a few years he was earning about $60,000 to $70,000 per annum.
[5]As to the use of the term ‘the third promise’, see paragraph 35 of Stuart’s statement of claim and Reasons, [53].
Stuart alleged that he ran the nursery in this same fashion, devoting about 75% of his time to the nursery and about 25% to working for his parents. He said that he continued to work for Keith and Ellen for 10 to 15 hours each week until in or around 2005. Neale and Susan, however, gave evidence that Stuart worked full time in his nursery, and that he was not involved in the day to day maintenance of the farm.
In or around 1980, Neale commenced a degree in economics, which he completed in 1983. He worked at a chartered accountancy firm for four years and commuted from Harkaway. During this period, he paid Keith and Ellen $80 per week in board. In about 1986, this went up to $100 per week.
From the 1980s onwards, Keith and Ellen developed gardens at Harkaway, with the assistance of some of their children, including Stuart and Neale. Stuart was able to save a deposit and bought a house, which Stuart moved into in 1985, when he was aged 41. The property is a four bedroom brick veneer home on two acres with a pool and garden and he continues to reside there.
In or around 1987, Neale resigned from his position at the accountancy firm and stopped paying Keith and Ellen board, but paid for groceries and other daily consumables. During the following two years, he assisted Keith and Ellen with maintenance on Harkaway without remuneration. Neale gave evidence that he undertook a substantial restoration of the infrastructure at Harkaway at this time and also worked at Wandeen Farm, which was owned by Keith and Ellen until they sold it in or around 1991. In or around April 1990, Neale commenced work as a company auditor but continued to do work on Harkaway at weekends and when on leave.
Stuart said that as the amount of work required to be done for Keith and Ellen in relation to their cattle diminished, he started on a project to develop the garden around the family home. This took about six months of intensive work, done in fits and starts.
Neale gave evidence that, in or around January 1991, Keith said to him words to the effect, ‘I’ll pay you back if we sell any land’. This was said in respect of expenses Neale had incurred on restoring Harkaway and for fencing work. Following about 1988, Neale kept a ledger and invoices of his costs in maintaining and improving Harkaway. Neale said that, from time to time, Keith asked him, ‘Are you making sure that you’re keeping a records of your costs?’.
Stuart alleged that, sometime in the period between 1977 and 2005, Keith and Ellen said to him repeatedly ‘We appreciate you doing all you do for us without pay, but rest assured, you and Neale will get it all to share equally when we pass on or when we retire’; and that they said that this was to show recognition for the work that Stuart and Neale had contributed to the property (‘the fourth promise’).[6]
[6]As to the use of the term ‘the fourth promise’, see paragraph 41 of Stuart’s statement of claim and Reasons, [68].
In or around December 1992, Neale ceased working as an accountant. In 1993, he established a local government consultancy practice, initially leasing an office in Mount Waverley, before establishing a home office at Harkaway in 1994. He continued to contribute to general household expenses at the Harkaway property and undertook maintenance tasks, including fencing and landscaping works at his own expense. Neale said that, between 1990 and 1993, he completed the reclamation and landscaping of paddocks at Harkaway at his own cost, in addition to purchasing equipment to maintain the property.
Neale’s evidence was that, between 1998 and 2005, he was responsible for the herd of cattle kept at Harkaway. Neale said that, in the 1990s, Keith and Ellen said to him words to the effect that they wanted him to have Harkaway, but they were unsure if they would be able to keep the property in light of potential rezoning and increased council rates. Keith said to him, ‘We can’t promise anything because we just don’t know what is going to happen’; and Ellen said to him, ‘The last one on the property [Harkaway] will get it’.
Neale said that, during the late 1990s and early 2002, he attended rural property auctions and had saved enough to pay for a deposit on a farm. He said, however, that because of the representations he said were made to him by Keith and Ellen, he ultimately did not purchase his own farming property.
In or around 2002, the Victorian State government released a new metropolitan planning scheme, ‘Melbourne 2030’, which identified Harkaway as part of the ‘Green Wedge’ to be preserved as a semi-rural/rural area. Neale’s evidence was that, after the release of the scheme, Keith and Ellen had greater certainty about the future of Harkaway and they said to him:
(a)Harkaway would ‘pass to him’ if he continued to manage the property and assist them (said by Keith and Ellen);
(b)‘What do you think you will do with it [Harkaway]? Do you think you will keep it or sell it?’ (said by Ellen);
(c)in relation to the potential rezoning, ‘Well, I won’t see it in my lifetime, but you might see it in your lifetime’ (said by Keith);
(d)in relation to the capital works he (Neale) undertook, ‘The work needs to be done. You’ll get the benefit when we’re not here’ (said by Keith and Ellen);
(e)‘I don’t want to interfere with what you’re doing over there. I’m interested in what you’re doing, but I don’t interfere. There is nothing worse when you’re trying to do a job to have someone else come along and interfere in what you’re doing’ (said by Ellen); and
(f)that they would make wills that reflected their intention to gift Harkaway to him (said by Keith and Ellen in 2003).
Neale’s evidence was that, in or around early 2004, Keith told him that his and Ellen’s savings were depleted. Later (in or around April 2004) they asked him for financial assistance. Neale said that, between 2004 and 2009, he funded Keith and Ellen’s living expenses. Additionally, from in or around 2004, he purchased new farm machinery for the purpose of maintaining and improving Harkaway. In or around 2005, Neale commenced running his own small herd of stud cattle at the Harkaway property, which he said was encouraged by Keith and Ellen. In or around 2006, the last of Keith’s cattle were sold.
Stuart gave evidence that, in or around 2005, Keith’s health started to deteriorate, and he (Stuart) was required to do more work around Harkaway, and to assist by taking Keith to appointments and respite. Stuart said that, as a consequence, by 2008, he was only working on the nursery around half of the time and earning income of $20,000 to $25,000 per annum. Stuart said that during this period his parents said to him that they appreciated that he was not running the nursery on a full time basis, and that he and Neale would be given Harkaway or be left it in their wills.
Stuart alleged that, on a number of occasions in or around 2005, Ellen and Keith said to him words to the effect, ‘We just can’t manage the place without your help now that I/your father is not in good health but if you agree to help you [Stuart] and Neale will get a share equally when we die or when we retire’. They also said that they appreciated the work and help that Stuart and Neale gave to them (‘the fifth promise’).[7] Stuart said that Keith and Ellen told him that they appreciated the sacrifice he made in not running the nursery full-time, and that the contributions Stuart and Neale had made to the property would explain the unfairness of their wills.
[7]As to the use of the term, ‘the fifth promise’, see paragraph 52 of Stuart’s statement of claim and Reasons, [93].
On 19 July 2006, Keith and Ellen made their last wills. Clauses 3, 4, 5 and 7 of each will provided as follows:
3.PROVIDED THAT I own my property known as Harkaway Farm Rowallan Avenue, Harkaway in the State of Victoria being whole of the land more particularly described in Certificate of Title Volume 8059 Folio 541 (‘the property’) at the date of my death then I DIRECT that clause four of this my Will shall apply. IN THE EVENT that I no longer own my property at the date of my death then I DIRECT that clause five of this my Will shall apply in the alternative.
4.(a) I GIVE DEVISE AND BEQUEATH the property together with all of the contents, furniture, fittings in the home erected on the property, all the plant, equipment, machinery and implements stored in or about the property to my sons, STUART GRAEME LAIRD and NEALE DOUGLAS LAIRD as shall survive me and if more than one as tenants in common and equal shares.
(b) I GIVE DEVISE AND BEQUEATH the residue of my real and personal estate of whatsoever nature and wheresoever situate to my trustees upon trust to sell call in and convert into monies such parts thereof as shall not consist of money with power to my trustees to postpone the sale calling in or conversion thereof for so long as my trustees in their sole and absolute discretion shall think fit and I DIRECT my trustees after payment of all my just debts, Funeral and testamentary expenses to hold the residue of my estate (‘the residue’) upon trust for my children that is to say, DAVID KEITH LAIRD, ERIC JOHN LAIRD, CLYDE WILLIAM LAIRD, SUSAN ELIZABETH LAIRD and EUAN CRAIG LAIRD as shall survive me and if more than one as tenants in common and equal shares.
5.IN THE EVENT that I no longer own the property at the date of my death then I GIVE DEVISE AND BEQUEATH all my real and personal estate of whatsoever nature and wheresoever situate to my trustees upon trust to sell call in and convert into monies such parts thereof as shall not consist of money with power to my trustees to postpone the sale calling in or conversion thereof for so long as my trustees in their sole and absolute discretion shall think fit and I DIRECT my trustees after payment of all my just debts, Funeral and testamentary expenses to hold the residue of my estate (‘the residue’) upon trust for such of my children that is to say, DAVID KEITH LAIRD, ERIC JOHN LAIRD, CLYDE WILLIAM LAIRD, SUSAN ELIZABETH LAIRD, STUART GRAEME LAIRD, NEALE DOUGLAS LAIRD and EUAN CRAIG LAIRD as shall survive me and if more than one as tenants in common and equal shares.
…
7.I have made greater provision for my sons, STUART GRAEME LAIRD and NEALE DOUGLAS LAIRD because of the contributions made by my sons to the property during my lifetime.

Keith and Ellen showed their wills to Stuart and Neale as well as to their other children. Neale gave evidence that when he asked Keith how clause 4(a) would work in practice, because Stuart’s nursery occupied 2 acres, whereas Neale lived in the main house on the property and ran cattle over the remaining 75 acres, Keith said, ‘You’ll just have to work that out between yourselves when the time comes’.
Neale gave evidence that after Ellen made her will, Ellen said to him, ‘The property is yours if you want it? Do you want it? Do you think you can manage it?’. He also gave evidence that, between 2008 and 2016, he invested in a series of capital works at Harkaway, including the installation of new water tanks and bushfire mitigation sprinkler system; the electrical rewiring of the farm sheds; the installation of underground electricity cables to two farm dams; the construction of a hard stand area at the farm sheds for heavy vehicles and farm machinery; drainage works to a farm laneway; the installation of new steel cattle yards; the installation of a new garden irrigation system at the main residence; and a series of home improvements to the main residence, including the installation of a new hot water system, upgrading the electrical meter box with safety switches, installation of new security doors and necessary concrete works. Additionally, Neale paid all of the Council rates for Harkaway for the years 2010/2011 to 2013/2014, and three of the four rate instalments in 2014/2015.
In around May 2010 or 2011, Keith was diagnosed with Alzheimer’s disease. He was cared for at home by Ellen until he moved into an aged care facility in November 2011. Neale gave evidence that he also cared for Keith during this period and that, as a result of the care he provided to his parents, he was unable to engage in paid employment to the same extent as he had done previously. Stuart gave evidence that he also provided a high level of care to Keith and support for Ellen during this period.
On 17 February 2012, a solicitor, John Natoli, wrote to Keith and Ellen’s children regarding medical and financial powers of attorney. The letter included a list from Ellen which stated:
i.I wish to continue to reside in my home at [Harkaway], with the support of such nursing care and domestic assistance as required, unless a medical practitioner advises that my healthcare needs require a level of support that cannot be adequately provided for in the home and provided that my son Neale or other member of the family resides in the home with me.
ii.In the event that, pursuant to the advice of a medical practitioner, I require accommodation in an aged care facility I wish to reside in [a named Nursing Home] …
On 5 April 2012, Keith died. Ellen was the executrix of his estate and received his entire estate.
In June 2012, a solicitor acting for Neale wrote to Mr Natoli (who by then had become the solicitor for Keith’s estate) and stated that the amount of $314,138 should be included as an amount payable to him from the estate in the inventory of assets and liabilities. In July 2012, Neale wrote directly to Mr Natoli and stated, ‘As previously discussed, it is not my intention to seek any reimbursement of these funds from my late father’s estate. In this respect the subject amounts should be regarded only as “deferred” or “contingent” liabilities’.
In or around September 2012, Ellen and Neale engaged KLM Spatial to prepare a planning permit application to subdivide Harkaway into three rural allotments. The plan was to sell a vacant lot in the north-west corner of the property.
In or around late 2012, Stuart and Neale had a dispute about the use of Harkaway. On 28 November 2012, Ellen wrote a note (‘the 2012 note’) as follows:
Ellen is now owner of Harkaway Farm
Stuart to have public insurance liability.
Stuart re farm paddocks from this date
To my advice from K.L.M. & my solicitor
Please no more discussion about this
Stuart to have use of, but not control
must advise me before any major works take place & my permission.
Paddock east of Harkaway farm
Nursery & paddock east side of house
…
Neale
Farm to be in control of all his cattle.
Subject to Mum control approval Neale has 65 acres for cattle grazing etc.
Mum has control of property infrastructure.
& maintenance weeds fertiliser.
& David Eric Clyde Susan & Euan have access to all the property & with my approval help to maintain property.
This document is valid only until result of my solicitor & K.L.M. until the decision in relation to the subdivision plan.
The 2012 note was signed by Ellen, Stuart, Neale and Susan. The context in which the 2012 note was made was the subject of dispute at trial.
Neale gave evidence that, in the period after Keith’s death, Ellen said to him:
(a)‘You’ve got the house and the farm, but you’ll have to let Stuart continue to run his nursery’;
(b)regarding the maintenance of the property, ‘You’re the boss. You just get on and get things done’; and
(c)‘You’ve got to be able to make your own decisions. There is no good me trying to tell you what to do. I am too old now and I can’t rule from the grave’.
In September 2014, Casey City Council issued a planning permit for the subdivision of Harkaway. Neale gave evidence that, in February 2015, he and Ellen planned to purchase an additional farm in Neerim, to be funded with the proceeds of the sale of subdivided Lot 3 of Harkaway, with Neale’s contribution to be paid from his equity in Harkaway. Neale said that, between May 2016 and June 2017, he and Ellen made joint offers on three properties, none of which was accepted.
In June 2015, Ellen commenced an adverse possession claim, which was initiated by Neale, that added to the land at the Harkaway property (‘the adverse possession claim’). Neale paid for the initial surveying and legal costs of the adverse possession claim.
In June 2015, Euan commenced a proceeding in the Victorian Civil and Administrative Tribunal (‘VCAT’) seeking to appoint a guardian and administrator for Ellen, which was unsuccessful (‘the VCAT application’). Neale gave evidence that, after the VCAT application, Ellen said to him that she wanted to transfer Harkaway to him. He said that he suggested that he could become a joint proprietor with her, a suggestion which Ellen accepted.
In April 2016, Lot 3 of Harkaway was sold for $2,425,000. After Lot 3 was sold, Ellen received an offer from the purchaser of Lot 3 to purchase Lot S2 (the balance of the property comprising the combination of Lots 1 and 2 on the subdivision plan). She rejected the offer. Neale gave evidence that, in relation to Lot 2 (which did not include the main house) Ellen said to him, ‘If you want to sell over there … and buy another farm you can. That’s entirely up to you. It’s your decision’.
In October 2016, Ellen became the registered proprietor of the boundary land the subject of the adverse possession claim. In February 2017, Neale wrote to the solicitors that had handled the adverse possession claim requesting documents to transfer Harkaway from Ellen to himself and Ellen as joint tenants. Neale said that he did this because of Ellen’s repeated urging and requests that he do so. Neale gave evidence that Ellen was to receive independent legal advice about the transfer. However, in March 2017, Ellen suffered a transient ischaemic attack and the proposed transfer of Harkaway was not progressed further.
In March 2017, the settlement of the sale of Lot 3 was effected. In May 2018, Ms Lyttleton was appointed administrator of Ellen’s estate by VCAT; and Susan and David were appointed as her guardians. In September 2018, Neale lodged caveats over Harkaway on the basis of an ‘implied, resulting or constructive trust’. In April 2019, those caveats were registered. Subsequently, Ms Lyttleton issued proceedings seeking the removal of the caveats. In June 2020, a solicitor acting for Ellen’s guardians sent a letter to Neale directing him to vacate Harkaway. In July 2020, Ellen was moved from Harkaway into respite care at a nursing home for a period. As at November 2020, being the time of the hearing of the two constructive trust proceedings the subject of the present appeal and Ms Lyttleton’s Order 53 application in the Trial Division, Ellen’s estate consisted of Harkaway, cash totalling $52,039 and shares valued at $3,104.
In December 2020, Neale vacated the main residence on the Harkaway property in accordance with interim orders of the Court made on 27 November 2020 and relocated to accommodation two hours’ drive away. He gave evidence at trial that he returns to the property on most days to undertake maintenance and to care for his herd of cattle.
On 25 December 2020, and before judgment was handed down, Ellen died. As a result, Ms Lyttleton’s appointment as her administrator lapsed. Subsequently, the judge ordered that Lachlan James Vallance (as administrator of Ellen’s estate) be substituted as a party for Ms Lyttleton in each of the three proceedings. As we have already said, Ellen’s last will was made on 19 July 2006, and contained clauses 3, 4, 5 and 7 as set out at [30] above.
On 18 June, McMillan J delivered reasons for judgment in which her Honour concluded that neither Neale nor Stuart had established their claims of constructive trusts over Harkaway. On 15 March 2022, her Honour made orders dismissing Neale’s and Stuart’s constructive trust claims, and requiring them to pay the costs of the three proceedings.[8]
[8]Neale was ordered to pay the costs of his proceeding and the Order 53 proceeding on an indemnity basis; and Stuart was ordered to pay the costs of his proceeding on a standard basis, and the costs of the Order 53 proceeding on an indemnity basis.
In early May 2022, Neale and Stuart each separately and on differing proposed grounds of appeal, filed applications in this Court seeking leave to appeal against the judge’s orders dismissing the constructive trust claims and requiring them to pay costs.

Relevant principles

The principles governing what is required to be established in order to invoke the intervention of equity based on proprietary estoppel are not in dispute. In summary, a plaintiff must establish the following:
(1)A representation was made by the defendant that the defendant would confer on the plaintiff an interest in property.
(2)The plaintiff acted in reliance on that promise.
(3)The plaintiff acted reasonably in so relying on the promise made by the defendant.
(4)The defendant knew or intended the plaintiff would rely on the promise.
(5)The plaintiff has suffered detriment as a consequence of the failure by the defendant to adhere to the promise.[9]
[9]Giumelli v Giumelli (1999) 196 CLR 101; Donis v Donis (2007) 19 VR 577; Delaforce v Simpson-Cook (2010) 78 NSWLR 483; Harrison v Harrison [2011] VSC 459 (‘Harrison’); Harrison v Harrison [2013] VSCA 170; Sidhu v Van Dyke (2014) 251 CLR 505; McDonald v Dunscombe [2018] VSC 283; Harris v Harris [2021] VSCA 138.

The judge’s reasons

The judge said that the oral evidence of Susan, Stuart and Neale, and the surrounding documentary evidence, was of particular importance to the resolution of the constructive trust claims.[10] Her Honour noted that it was apparent that there was ‘longstanding disharmony amongst the siblings’.[11] As to the credibility of Stuart, Neale and Susan, her Honour said:
On the whole, Susan and Neale were prepared to make appropriate concessions and were credible witnesses. While Stuart also made appropriate concessions, there are some specific concerns as to the reliability of his evidence, in particular, he gave evidence that a conversation occurred in 2014 that was not recalled by either Susan or Neale.[12]
[10]Reasons, [173].
[11]Ibid.
[12]Ibid [174].
The judge noted that all three witnesses were recalling conversations and events over a period of more than 50 years. Citing passages from Watson v Foxman,[13] Flinn v Flinn,[14] Evans v Braddock,[15] and Re Mahoney,[16] the judge said that careful scrutiny was required where claims were based upon a conversation with a person who is now unable to give evidence; that contemporaneous documents were to be preferred over recollections of conversations; and that uncorroborated oral evidence was to be approached with caution.[17]

Neale’s claim

[13](1995) 49 NSWLR 315.

[14][1999] 3 VR 712.

[15][2015] NSWSC 249.

[16][2015] VSC 600.

[17]Reasons, [175].

The judge identified the various submissions made by the parties in relation to Neale’s claim.[18] In the course of doing so, her Honour identified the bases upon which Neale put his claim,[19] and referred to Neale’s submission that, ‘In claims involving families, there is a greater degree of latitude concerning the clarity of the representation’.[20]
[18]Ibid [176]–[183].
[19]Ibid [176]–[178].
[20]Ibid [177].
The judge accepted that Keith made the statements, ‘I’ll pay you back if we sell any land’ and ‘Are you keeping a record of your costs?’.[21] The judge referred to other statements alleged by Neale as not being corroborated.[22]
[21]Ibid [189].
[22]Ibid [190].
Referring to statements which were ‘not otherwise corroborated and [which] should be approached with caution’, the judge noted that some of the alleged statements were ‘particularly ambiguous’. These included Ellen’s alleged statement, ‘I don’t interfere with what you are doing over there’; Keith’s statement, with reference to rezoning, ‘I won’t see it in my lifetime, but you may see it in yours’; and Keith and Ellen both saying, in relation to maintenance works, ‘It needs to be done, you’ll get the benefit when we’re not here’.[23] That said, the judge identified a number of points which she said weighed in favour of a finding that generally, Keith and Ellen represented to Neale, in around 2002 or 2003, that Harkaway would ‘pass to’ him. Her Honour identified these points as being:
(a)the mutual wills of 2006 gift Neale an equal share of Harkaway. Contributions made by Neale and Stuart are also acknowledged;
(b)Susan gave evidence that Ellen referred to the gift to Neale and Stuart being linked to their residence on Harkaway;
(c)the mutual wills appoint Neale and Stuart executors of the estate of the survivor of Keith and Ellen;
(d)a proposed subdivision was not pursued in 2003;
(e)Neale’s evidence of Ellen’s comment ‘what you do think you will do with it?’.[24]
[23]Ibid [191].
[24]Ibid [192].
The judge accepted that in around 2003, Ellen generally represented to Neale that Harkaway would ‘pass to’ him. The judge, however, said that she could not conclude that any representation made by Ellen at that time ‘extended to either Harkaway passing to Neale solely, or that it was based on a mutual understanding that he would contribute to Harkaway’.[25] The judge rejected Neale’s assertion that Ellen represented to him that Harkaway would pass to him, subject to Stuart being able to continue to run his nursery.[26]
[25]Ibid [194].
[26]Ibid.
Next, the judge referred to statements which were said to relate to the ownership of Harkaway as being inconsistent with the terms of the mutual wills and the language of the 2012 note.[27] The judge referred to later statements made by Ellen as being uncorroborated,[28] or explicable on the basis that Neale was then managing Harkaway.[29] As to Neale’s evidence of Ellen’s repeated ‘urgings and requests in early 2017’ that she transfer Harkaway to him, the judge said:
The Court has multiple concerns with this evidence:
(a)no context is given regarding the statements or how they were specifically phrased;
(b)while the letter of the general practitioner refers to Ellen being capable of giving her wishes clearly, the letter’s purpose was for a specialist geriatric assessment in the context of Ellen having difficulties showering. It was not written for the purpose of capacity and a property transaction. Moreover, it notes some short term memory loss;
(c)Neale has not exhibited his initial contact with Peter Speakman & Co about the matter, nor did he approach Mr Natoli. Mr Natoli had some familiarity with Harkaway, had been engaged by Ellen in the past, and she entrusted him to be her financial attorney; and
(d)the evidence is not otherwise corroborated.
As such, the Court cannot conclude that Ellen made such statements.[30]
[27]Ibid [195].
[28]Ibid [196].
[29]Ibid [197].
[30]Ibid [198].
The judge said that while ‘overall’ she accepted that Ellen generally represented that Harkaway would ‘pass to’ Neale, Ellen’s statements did ‘not go so far as promising that Neale would inherit Harkaway solely’.[31]
[31]Ibid [199].
Next, the judge concluded that it was not reasonable for Neale to rely upon Ellen’s representations that Harkaway would pass to him.[32] In so concluding, the judge relied upon the following matters:
[32]Ibid [200]–[207].
(a)the generality of Ellen’s representation;
(b)the terms of the mutual wills, including both that they contemplated disposition of Harkaway during Keith and Ellen’s lifetimes and in the event that cl 4 applied, at most Neale would have received a half share in Harkaway;
(c)Harkaway being the key asset of Keith and Ellen;
(d)the conflict that the terms of the mutual wills created in the family;
(e)the history of selling land in portions at Mount Morton and the awareness that funds could be realised by the subdivision of Harkaway;
(f)Susan’s evidence, which the Court accepts with a degree of caution, of family discussions at dinner that Harkaway was used as a ‘back up’;
(g)Neale’s continued recording of loans and expenses beyond 2003 and 2006;
(h)an absence of documentation reflecting [Neale’s] asserted interpretation of cl 3 and cl 5, particularly where Neale kept detailed records otherwise; and
(i)Neale’s failure to raise his reliance on the representation in the context of Keith’s death and the argument in the paddock and the 2012 note.[33]
[33]Ibid [206].
In relation to the remaining issues in Neale’s claim, the judge said that there were a number of difficulties in establishing that Ellen knew or ought to have known that Neale was relying on her representations.[34] The judge accepted that Neale suffered financial detriment by not investing his funds in an alternative property and by contributing to Harkaway in the form of unpaid labour. Her Honour said that such detriment was ‘substantial’, in the sense that it would have been unconscionable for Ellen to resile from her representation that Harkaway would pass to him.[35] However, the judge concluded that, to recognise a constructive trust in favour of Neale over the whole of Harkaway would go beyond what was required for conscientious conduct, saying that if Neale had established his case, then monetary relief from the proceeds of sale of Harkaway might have been appropriate.[36]

Stuart’s claim

[34]Ibid [208].

[35]Ibid [213].

[36]Ibid [215].

The judge identified the various submissions made by the parties in relation to Stuart’s claim.[37] In the course of doing so, her Honour noted that Stuart relied upon the five promises set out in his statement of claim, which were to the effect that, ‘Because you have worked for us all this time, working for nothing, you will get the farm when we retire or pass on’.[38] Her Honour noted that, while initially Stuart framed his detriment in three ways, in final address, he relied only upon his detriment as being:
(a)his provision of decades of unpaid labour rather than earning a wage in other endeavours; and
(b)establishing his business on Harkaway, which is not easily transferable, particularly at this stage of his life.[39]
[37]Ibid [216]–[227].
[38]Ibid [216].
[39]Ibid [218].

The judge stated that each of the five promises alleged by Stuart would be considered by her in turn.[40]
[40]Ibid [228].
The judge did not accept that the first promise was made.[41] Her Honour said that, on the evidence, a conclusion could not be drawn as to whether Stuart was paid in the period 1967 to 1974 because ‘tax records cast this assertion in doubt’.[42] She then said that, even if the court were to accept Stuart’s evidence that Keith made the statements asserted by him, the evidence did not go so far as establishing that the first promise was made by Ellen.[43]
[41]Ibid [231]–[233].
[42]Ibid [231].
[43]Ibid [232]–[233].
In relation to the first promise, the judge said that there were difficulties arising concerning the question of reliance, and whether any reliance was reasonable.[44] There were also difficulties with detriment, particularly as the court had not concluded that Stuart was unpaid during the period when the first promise was allegedly made.[45]
[44]Ibid [234]–[235].
[45]Ibid [237].
The judge did not accept that the second promise was established. More specifically, the judge did not accept that the second promise was made or confirmed by Ellen. Her Honour said that the asserted representations underlying the second promise encountered the same difficulties as those with the first promise, namely:
(a)for the period 1972 to 1974 they are inconsistent with the tax records;
(b)they are uncorroborated, general, and lack context; and
(c)although as pleaded they were made by Keith and Ellen, no specific evidence was given as to Ellen’s involvement and the Court rejects the proposition that they were made jointly on account of Keith and Ellen’s marriage.[46]
[46]Ibid [240].
The judge said there was difficulty with detriment in relation to the second promise; and that if the second promise had been established, then the appropriate remedy would have been a monetary payment, rather than a constructive trust over Harkaway.[47]
[47]Ibid [242].
In relation to the third promise, the judge said that, on the evidence, the Court could not conclude that it had been made or confirmed by Ellen.[48] Her Honour said that this conclusion found further support in Stuart failing to seek to clarify or rely on the third promise when he purchased his own property in 1985, and when his parents stepped back from cattle farming and sold property in the early 1990s.[49] Her Honour said that, even if it could be accepted that Ellen made the representations constituting the third promise, there were significant issues in relation to reliance.[50] The judge said that, at least from around 1991, it was not reasonable for Stuart to continue to act in reliance on a general representation, from 1977, that he would receive Harkaway on retirement or death.[51] She also said that she could not conclude that Ellen knew or ought to have known that, in laying out his nursery at Harkaway and foregoing 10 to 15 hours at the nursery each week, Stuart was acting in reliance upon the third promise (that is, that he would receive an interest in Harkaway).[52]
[48]Ibid [245].
[49]Ibid.
[50]Ibid [246]–[247].
[51]Ibid [248].
[52]Ibid [249].
Next, the judge concluded that Stuart had not established that the fourth promise was made or approved by Ellen.[53] The judge said that if Stuart had established the fourth promise, factors akin to those relevant to the circumstances of the third promise weighed against a finding that it was reasonable for Stuart to rely upon it for the entire 28 year period during which the promise was allegedly made, ‘as the family’s circumstances changed’.[54] The judge concluded that even if the fourth promise had been established, a constructive trust in favour of Stuart over half of Harkaway would have gone beyond what was required for conscientious conduct.[55]
[53]Ibid [256].
[54]Ibid [257].
[55]Ibid [258].
Finally, the judge concluded that, on balance, the fifth promise had not been established.[56] The judge observed that the context of the fifth promise was lacking.[57] Additionally, her Honour said that the pleaded promise differed from what had been deposed to by Stuart.[58] The judge said that, even if the fifth promise was made, it was not reasonable for Stuart to act in reliance upon it.[59] As her Honour said:
Again, it is not apparent that he clarified the position of his parents’ wills in 2005. Even after the mutual wills were executed in 2006, Harkaway was Keith and Ellen’s only remaining property and where they lived, Neale had then commenced running cattle on the majority of the farm, to which he had contributed over the years, Stuart was aware that some of his siblings were unhappy with the terms of the mutual wills, and cl 3 and cl 5 contemplate the disposal of Harkaway within the lives of Keith and Ellen. To act in reliance [on] the Fifth Promise in such circumstances, particularly where any inter vivos gift was likely to generate conflict and challenge from his siblings, including Neale, was not reasonable.[60]
[56]Ibid [261].
[57]Ibid [260].
[58]Ibid [261].
[59]Ibid [263].
[60]Ibid.
The judge concluded her analysis in respect of the fifth promise by saying that, even if the fifth promise and reasonable reliance upon it had been established by Stuart, to recognise a constructive trust in his favour over half of Harkaway would have been beyond what was required for conscientious conduct.[61]

Neale’s proposed appeal

[61]Ibid [265].

Neale’s proposed grounds of appeal

In support of his application for leave to appeal, Neale relies upon nine proposed grounds of appeal. Proposed grounds 1 to 8 are advanced on the basis that the standard appellate review in this case is that described in Fox v Percy.[62] Proposed ground 9 was advanced on the basis that House v The King[63] applies to any aspect of the judge’s decision. The respondent accepts that the standard of appellate review in this case is that set out in Fox v Percy and submits that House v The King has no relevant operation in these applications. The applicant has accepted the respondent is correct. Accordingly, proposed ground 9 falls away.
[62](2003) 214 CLR 118, 125–8, [22]–[31]. See also Lee v Lee (2019) 266 CLR 129, 148–9 [55].
[63](1936) 55 CLR 499, 505.
Neale’s proposed grounds of appeal are lengthy, containing many sub-paragraphs.[64] For present purposes, proposed grounds 1 to 8 may conveniently be summarised as follows:
(1)The judge erred in finding that the representations were ambiguous.
(2)The judge erred in finding that Neale’s reliance on the representations was unreasonable.
(3)The judge erred in failing to find that Ellen knew or ought to have known that Neale relied on the representations made by her.
(4)The judge erred in failing to consider whether Ellen acquiesced to Neale’s conduct, and erred in failing to conclude that she acquiesced to his conduct.
(5)The judge erred in relation to her conclusions on the issue of detriment.
(6)The judge erred in concluding that a constructive trust in Neale’s favour over the whole of Harkaway would go beyond what is required for conscientious conduct.
(7)The judge erred in finding that any relief to which Neale was entitled would appropriately be confined to monetary relief from the proceeds of sale of Harkaway.
(8)The judge erred by denying Neale natural justice by failing to give him an opportunity to respond to matters relating to ‘funds owing by the estate and the associated (unarticulated) injustice to third parties’: see Reasons [215].
[64]For example, proposed ground 3 contains within it sub-paragraphs 3(c)(i)(2)(a)–(e).

Neale’s submissions

A number of Neale’s submissions made in respect of one proposed ground of appeal were repeated in respect of other proposed grounds of appeal. This was because the issues of whether a representation was made, whether it was relied upon, whether such reliance was reasonable, and detriment, contained elements which were interrelated.
Under proposed ground 1, Neale submitted that the judge was wrong to conclude that the representations he relied upon were ambiguous. Neale submitted that, contrary to established authority, the judge searched for ambiguity and ‘failed to assess the clarity of the representations sensibly, having regard to the context in which they were made’. Additionally, he submitted that the judge ‘artificially isolated’ individual representations, rather than considering the evidence in its entirety.
In support of his submissions under proposed ground 1, Neale relied upon a number of authorities, including the House of Lords decision of Thorner v Major.[65] In particular, Neale relied upon a passage, in the opinion of Lord Neuberger, relating to the clarity of a representation needed in order to establish a proprietary estoppel. Specifically, his Lordship said:
The court should not search for ambiguity or uncertainty, but should assess the question of clarity and certainty practically and sensibly as well as contextually. … [A]t least normally, it is sufficient for the person invoking the estoppel to establish that he reasonably understood the statement to be an assurance on which he could rely.[66]
[65][2009] 1 WLR 776.
[66]Ibid 801 [85]. See also, Harrison [2011] VSC 459, [383] (Kaye J).
Under proposed ground 2, Neale contended that it was reasonable for him to rely upon the representations he alleged, and that the judge’s finding to the contrary was wrong. Neale submitted that his reliance was reasonable when, looking at all the circumstances, he was the only child involved in the day-to-day care of Ellen and Keith, which care was necessary to facilitate their desire to stay living at Harkaway. He also submitted that his reliance was made all the more reasonable by the fact that none of his siblings ‘had made any comparable financial and non-financial contributions to the improvement and maintenance of Harkaway as he had done’. In particular, Neale relied upon the representations he alleged were made in 2003, noting that they were clear and unambiguous, and were likely to induce reliance of the kind that actually occurred in this case.
Under proposed ground 3, Neale contended that Ellen knew or ought to have known that he was relying on the representations which had been made, and the judge was wrong to conclude to the contrary. Again, Neale relied upon all of the financial and non-financial contributions made by him for the benefit of Keith and Ellen, and about which he gave evidence.
Under proposed ground 4, Neale contended that the judge failed to deal with his submission that there was a proprietary estoppel by acquiescence. In contending that proprietary estoppel by acquiescence was an issue at trial, Neale relied upon paragraph 66(a) of his statement of claim, which alleged that there was a constructive trust ‘based on the doctrine of proprietary or promissory estoppel, whether by promise or other representation, encouragement or acquiescence’; and paragraph 63 of a written submission, filed by Neale four months before trial,[67] which repeated the allegation made in paragraph 66(a) of the statement of claim.
[67]Dated 24 July 2020.
Under proposed grounds 5, 6 and 7, Neale advanced various submissions that cavilled with the judge’s conclusions on the issues of detriment and the appropriate relief he might be entitled to if he made out his proprietary estoppel claim. To the extent necessary, we will address these when we come to deal with the merits of Neale’s proposed appeal.
Under proposed ground 8, Neale submitted that he was denied procedural fairness by not being given the opportunity to deal with the statement by the judge, at Reasons [215], that there might be funds owing by the estate and/or some ‘associated injustice to third parties’ if a constructive trust over the whole of Harkaway were to be recognised in his favour.

Neale’s proposed grounds of appeal: analysis and conclusion

There is no substance in any of Neale’s proposed grounds of appeal. Moreover, in rejecting Neale’s claim that Harkaway was held on a constructive trust solely for him, the judge was plainly correct.
Contrary to Neale’s submissions, the judge did not search for ambiguity in the representations alleged by Neale. The judge’s findings that a number of the representations relied upon by him were ambiguous (such as, ‘I don’t interfere with what you are doing over there’) are unimpeachable. While the representations had to be examined in the family setting and context in which they were made, it is necessary to remember that that context included the fact that representations had been made to Stuart in circumstances where he, too, had made contributions to the benefit of Keith and Ellen. This was not a simple factual case of the Thorner v Major kind, where the utterances of one taciturn family member made to another fell to be construed.[68]
[68]Harrison [2011] VSC 459, [383].
Similarly, we see no error in the judge’s conclusions that, in the circumstances of the whole case, Neale did not establish that any reliance by him on representations that the whole of Harkaway would pass to him was reasonable. Stuart’s circumstances, and the contributions made by him alone, precluded a finding that any reliance by Neale, on a representation that the whole of Harkaway would pass to him, was reasonable on his part.
Next, Neale’s complaint that the judge erred in failing to consider whether there was a proprietary estoppel by acquiescence is without merit. Neale did not run a case based on proprietary estoppel by acquiescence at trial. Indeed, in his detailed closing submissions,[69] Neale said nothing about acquiescence. Neale’s entire case at trial concerned the representations he alleged had been made to him. Having not taken the opportunity available at trial to run a case based on acquiescence, it is not in the interests of justice to permit Neale to raise this point on appeal.[70] In any event, as will become apparent from our reasons below, there is no merit in any case Neale now seeks to make based on acquiescence.
[69]Dated 2 December 2020.
[70]Metwally v University of Wollongong (1985) 60 ALR 68, 71; Coulton v Holcombe (1986) 162 CLR 1, 7.
Finally, there is no substance in Neale’s complaint that he was denied procedural fairness when the judge concluded that ‘matters such as funds owing by the estate and the associated injustice to third parties’[71] may have led to a conclusion that to recognise a constructive trust in favour of Neale over the whole of Harkaway would go beyond what was required for conscientious conduct. The sentence in the Reasons about which Neale makes complaint was merely an observation as to the extent of relief that Neale might have been entitled to, had he otherwise established the bases for the proprietary estoppel claimed by him. The impugned sentence did not bear on her Honour’s principal reasons for rejecting Neale’s claim.
[71]Reasons, [215].
It follows from what we have said above that Neale’s proposed grounds 1, 2, 4 and 8 must be rejected, and that there is thus no basis for this Court to overturn the judge’s order dismissing Neale’s proceeding. Nevertheless, we would go further.
The evidence which bore upon the question of whether Keith and/or Ellen represented to Neale that the whole of Harkaway would pass to him on their retirement or death consisted of a number of contemporaneous documents, various passages in the affidavits of Neale, Stuart and Susan, and the evidence they gave at trial. That evidence included:
•the circumstances in which Keith and Ellen made their wills on 19 July 2006, leaving Harkaway to Stuart and Neale ‘as tenants in common and (scil, in) equal shares’, and Neale’s attendance with Keith, in early 2006, on the solicitor who prepared those wills;
•an affidavit sworn by Neale in September 2019[72] in which he referred to having ‘laboured on and incurred costs on behalf of Harkaway’, pursuant to Keith and Ellen’s ‘suggestions, encouragement and later their wishes as solidified in their mirror wills’;
•Neale’s evidence in an affidavit sworn in October 2020 that the 2006 wills reflected the intentions Keith and Ellen had ‘conveyed years before’; and
•the claim made by Neale’s solicitors in June 2012 that he was owed the sum of $314,138, which was to be included ‘as the loan amount payable’ to him from Keith’s estate, and which he subsequently (in an email sent by him in July 2012) referred to as ‘deferred or contingent liabilities’.
[72]In a caveat removal proceeding commenced by Ellen against Neale.
In oral argument, Neale contended that Keith’s and Ellen’s 2006 wills, and the circumstances in which they were made, were of little (if any) relevance. He submitted that the evidence of representations made to him in or prior to 2003, and his reliance on those representations to his detriment before 2006, meant that Harkaway was held on a constructive trust for him prior to 2006; and that nothing in the wills, the circumstances in which they were made, or subsequent events, could alter that fact.
These submissions must be rejected. The circumstances in which the wills were made, the terms of the wills, and the events that occurred thereafter, were relevant in assessing what, if any, representations were made by Ellen and Keith prior to 2006, and the extent and reasonableness of any reliance by Neale on those representations. Put shortly, if Keith and Ellen had truly represented to Neale, in or prior to 2003, that the whole of Harkaway would pass to him, and if he had relied to his detriment on any such representation, then it is unlikely that he would have participated to the extent that he did in the making of the 2006 wills without at least raising with Ellen and Keith their earlier (and, on Neale’s case, inconsistent) promises to him.
The judge, after making detailed reference to the evidence, concluded that Neale had not established any representation that Harkaway would pass solely to him.[73] Having reviewed the evidence for ourselves, it is difficult to see how the judge could have come to any different conclusion.
[73]Reasons, [194], [199].
Moreover, to the extent that Keith or Ellen may have said anything to Neale which was capable of being construed that Harkaway would eventually pass entirely to him, a review of the whole of the evidence discloses that any reliance by Neale upon such a proposition would not have been reasonable. Whatever dispute Neale might have had with the extent of contributions made by Stuart, Neale could not reasonably have supposed that, given Stuart’s work for the benefit of Keith and Ellen, Harkaway would eventually pass solely to him — and to the exclusion of Stuart.
Similarly, and contrary to Neale’s submissions, even if he had pursued a claim at trial based upon proprietary estoppel by acquiescence, the evidence did not support the existence of a constructive trust over the whole of Harkaway for Neale’s benefit. Any such claim would simply have to have ignored substantial parts of evidence of the circumstances of the Laird family over the years in question, their actual dealings with each other, and the circumstances of their interactions.
Neale has a remaining proceeding in the Trial Division, which is yet to be heard, in which he claims an equitable lien over Harkaway in relation to moneys lent and expended by him. Nothing we say in these reasons affects that proceeding. Having now considered the evidence in the present proceedings, however, it is clear that, in rejecting Neale’s proprietary estoppel claim, her Honour was plainly correct.

Stuart’s proposed appeal

Stuart’s proposed grounds of appeal

In support of his application for leave to appeal, Stuart advanced the following proposed grounds of appeal:
1.The trial judge erred in failing to give adequate weight to the evidence of the applicant as to providing unpaid labour.
2.The trial judge erred in failing to give adequate weight to the evidence of the applicant as to the promises made by the respondent.
3.The trial judge erred in failing to consider properly the evidence of the applicant that the promises made by the father were made on behalf of both the father and mother.
4.The trial judge erred in failing to properly consider and reject the evidence of Susan Laird that no promises would have been made.
5.The trial judge erred in misapplying the principles of detriment to the applicant’s case.
6.The trial judge erred in failing to apply the appropriate principles of remedies in deciding the relief to be granted.
7.The trial judge erred in failing to give adequate weight to the evidence of the will which confirmed the evidence of the appellant.

Stuart’s submissions

Stuart’s proposed grounds of appeal were directed at the judge’s failure to accept that the representations alleged by him had been made, and the issues of detriment and relief. Under his proposed grounds of appeal, he advanced a number of specific complaints. For example, under proposed ground 1, he cavilled with the judge’s acceptance of taxation records as putting in issue Stuart’s claim of having performed unpaid work in the late 1960s/early 1970s.
One of Stuart’s principal submissions was that the judge erred in considering the five promises separately in relation to whether each specific promise was made; whether there was reliance on it; whether any reliance on it was reasonable; and whether any reasonable reliance on the specific promise had resulted in detriment to Stuart. Stuart submitted that the judge erred in artificially isolating each promise, rather than assessing ‘the cumulative effect of the promises, the detriment and the reasonableness of relying upon each promise’.
Additionally, Stuart submitted that the ‘artificial separation of the case into five claims’ led to the judge erring when she determined that a constructive trust was not an appropriate remedy for each independent claim. As Stuart put it in his written case:
The applicant [Stuart] only had one claim of proprietary estoppel. The sheer duration of the effect on the applicant’s life of the cumulative promises made over several decades meant that the only appropriate remedy was a constructive trust.
In submitting that the judge erred, Stuart placed considerable reliance upon the terms of Keith’s and Ellen’s wills made in 2006. He submitted that the wills confirmed his evidence, both as to contributions made by him and the promises made by his parents.

Stuart’s proposed grounds of appeal: analysis and conclusion

In the course of the Reasons, the judge dealt with each of the five promises alleged by Stuart individually. Her Honour did so because of the way the case was pleaded and presented to her. Moreover, on Stuart’s case, and because Neale was maintaining a competing case for a constructive trust to the exclusion of Stuart, it was necessary for her Honour to determine at what point in time Stuart might have first become entitled to a constructive trust as claimed by him. That said, there is force in the proposition that the question of whether any of the five alleged promises were made, and the issues of reliance and detriment, needed to be considered in the light of all of the circumstances and dealings within the Laird family over the years from 1966 to 2008.
Stuart’s case at trial was that the totality of the evidence supported the proposition that, over the years between 1966 and 2008, promises (defined by him as the first, second, third, fourth and fifth promises) were made to him by Keith and Ellen that Harkaway would, on their retirement or death, pass to him and any sibling who similarly assisted (later, Neale). The common element in the five alleged promises was that Stuart would receive his interest in Harkaway ‘when we [Keith and Ellen] pass on or when we [Keith and Ellen] retire’.
Noting that Ellen died after the commencement of the trial but before its conclusion, the promises alleged by Stuart were ultimately fulfilled by the provisions of Ellen’s will leaving Harkaway to Stuart and Neale as tenants in common in equal shares. In other words, the promises alleged by Stuart were ultimately fulfilled. Good conscience required nothing more.[74]
[74]Cf Flinn v Flinn [1999] 3 VR 712, 736; Delaforce v Simpson-Cook (2010) 78 NSWLR 483, 490 [34]–[36].
As there was no failure by Ellen to adhere to the promises alleged by Stuart, there was no occasion to invoke the intervention of equity based on proprietary estoppel on Stuart’s behalf. Accordingly, there was no error in her Honour’s order dismissing Stuart’s proceeding.

Conclusion

The applications for leave to appeal brought by Neale and Stuart must be refused.
---

[2023] VSCA 138

8 June 2023