Lynette Jeanne Talbot as Executrix of the Estate of Thomas Haldane Talbot (Dec) v Talbot, Junior - [2000] WASC 103

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: LYNETTE JEANNE TALBOT as Executrix of the Estate of THOMAS HALDANE TALBOT (DEC) -v- TALBOT, JUNIOR & ORS [2000] WASC 103

CORAM: MASTER BREDMEYER

HEARD: 10 APRIL 2000

DELIVERED : 20 APRIL 2000

FILE NO/S: CIV 2156 of 1998

MATTER :The Estate of THOMAS HALDANE TALBOT, SENIOR
and
Supreme Court Rules 1971, O 58 r 2

BETWEEN: LYNETTE JEANNE TALBOT as Executrix of the Estate of THOMAS HALDANE TALBOT (DEC)
Plaintiff
AND
THOMAS HALDANE TALBOT, JUNIOR
First Defendant
FREDERICK MARK TALBOT
Second Defendant
POGON PTY LTD (ACN 008 976 529)
Third Defendant

Catchwords:

Summary judgment - Moneys owing by sons to father's estate

Legislation:

Inheritance (Family & Dependants Provision) Act 1972 (WA), s 6

Supreme Court Rules, O 14

Result:

Application granted

Representation:

Counsel:

Plaintiff:     Mr M G Clay
First Defendant             :     Mr J C Curthoys
Second Defendant         :     Mr J C Curthoys
Third Defendant           :     Mr J C Curthoys

Solicitors:

Plaintiff:     Martin De Haas
First Defendant             :     Slee Anderson & Pidgeon
Second Defendant         :     Slee Anderson & Pidgeon
Third Defendant           :     Slee Anderson & Pidgeon

Case(s) referred to in judgment(s):

Lyons & Anor v Talbot & Anor, unreported; SCt of WA; Library No 930469; 31 August 1993
Port of Melbourne v Anshun Pty Ltd (1981) 147 CLR 589
Talbot & Anor v Talbot & Ors, unreported; SCt of WA; Library No 960092; 22 February 1996

Case(s) also cited:

Birch Investments Pty Ltd v Lim, unreported; SCt of WA; Library No 7396; 12 July 1988
Burton v President of the Shire of Bairnsdale (1908) 7 CLR 76
Challenge Bank Ltd v Walters, unreported; SCt of WA; Library No 940273; 31 May 1994
Clay v Clay [1999] WASCA 8
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Eng Mee Yong v V Letchumanan [1980] AC 331
Evans Deakin & Co Pty Ltd v Kaiser Engineers & Constructors Inc [1968] Qd R 379
Express Newspapers v News Ltd [1990] 1 WLR 1320
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365
Howden v Truth & Sportsman Ltd (1937) 58 CLR 416
Joseph Terry Pty Ltd v T & G Fire & General Insurance Co Ltd [1973] VR 458
Kimberley Downs Pty Ltd v Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986
Lewkowski v Bergalin, unreported; FCt SCt of WA; Library No 7675; 26 May 1989
Love v Garvey, unreported; SCt of WA; Library No 6089; 8 November 1985
McKechnie v Campbell (1996) 17 WAR 62
Meyappa Chetty v Supramanian Chetty [1916] AC 603
Morgan & Son Ltd v S Martin Johnson & Co Ltd [1949] 1 KB 107
O'Brien v Tanning Research Labs Inc (1988) 14 NSWLR 601
Palmdale Insurance Co (In Liq) v L Grollo & Co Pty Ltd [1986] VR 408
Phillips v Mineral Resources Development Pty Ltd [1983] 2 Qd R 138
Re Crowhurst Park [1974] 1 All ER 991
Re J L Young Manufacturing Co Ltd [1900] 2 Ch 753
St Barbara Mines Ltd v Oates, unreported; SCt of WA; Library No 970026; 6 February 1997
Standard Chartered Bank Ltd v Greater Pacific Investments Ltd (1991) 5 WAR 541
Suburban Homes Pty Ltd v Ward [1928] VLR 267
Temwood Holdings Pty Ltd v Paterson Group Architects Pty Ltd, unreported; SCt of WA; Library No 980533; 22 September 1998
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
Webster v Lampard (1993) 177 CLR 598

MASTER BREDMEYER: This is an application by the plaintiff for summary judgment under O 14 of the Rules of the Supreme Court against the first defendant in the sum of $66,627 and against the second defendant in the sum of $40,640.
The defendants have raised a number of objections to the competence of this application. Firstly, an earlier application was dismissed and they say, that in the interests of justice, a second application should not be entertained. The plaintiff's first application for summary judgment failed after brief argument because of inadequate verification of the statement of claim. No leave was given to bring a fresh application as is sometimes done. Nevertheless, I think it not unjust to permit a second application. On the hearing of the first application there was no examination of the merits of the application. Moreover, costs of the first application were awarded to the defendants in any event. Also, I consider the plaintiff's application on the merits is prima facie strong and, if successful, will save the parties the greater expense of a trial.
The defendants' second objection is that the application is out of time. The application could not have been brought within 21 days of the appearance as this action began as an originating summons. It was converted to an action by writ by an order dated 23 November 1998. The application could not have been brought prior to the filing of a statement of claim. The first statement of claim was filed on 14 April 1999. Objections were taken to it and a further minute was filed on 10 May. On 18 June 1999 I struck out various paragraphs of that statement of claim. The present amended statement of claim was filed on 21 July 1999 ("the statement of claim"). I consider the summary judgment application should have been brought within 21 days of that date, namely by 11 August 1999. This application was filed on 7 February 2000 so is approximately six months late. During that period the defendants filed a defence and counterclaim on 20 September 1999. The plaintiffs filed their first summary judgment application on 19 November and that was dismissed on 28 January 2000, as stated above, on technical grounds. This application was filed on 7 February.
I consider it just to extend the time under which this application should be brought to 7 February. The defendants may be entitled to a costs order for the filing of their defence and counterclaim in September 1999, which need not have been filed if the application had been brought more promptly. I consider the application is prima facie strong on the merits and, if successful, will, even though brought late, amount to a saving of costs compared to a trial.
The third objection to the application is that O 14 r 2(1) has not been complied with. That rule requires the application to be supported by affidavit verifying the facts on which the claim is based and stating the deponent's belief that there is no defence to that claim or part thereof etcetera. The defendants have filed detailed submissions on the inadequacies of the affidavit in support. I consider that the objections fail and that the affidavit in support is verified sufficiently well to allow the application to proceed to a hearing on its merits.
The plaintiff is the executrix and a daughter of the late Thomas Haldane Talbot ("Thomas" or "the deceased") who died on 8 September 1992. The first defendant, Thomas Haldane Talbot, Jnr ("Tom") and the second defendant, Frederick Mark Talbot ("Fred") are the sons of the deceased. The plaintiff relies in support of the application principally upon admissions made by the defendants and findings of fact made by Parker J in an earlier action, CIV 2302 of 1993. The deceased was a farmer and he left a large estate. In his will he made no provision for his two sons and he gave a reason for that in cl 3 of this will, which reads:
"I DECLARE THAT I have deliberately made no provision in this my Will for either of my sons THOMAS HALDANE TALBOT JUNIOR or FREDERICK MARK TALBOT by reason of the many and substantial benefits conferred by me upon them during my lifetime and in particular their interests in THE TALBOT UNIT TRUST the partnership TH TALBOT & SONS and the land referred to in paragraph 2.5 which were either gifted by me to them or sold by me to them at less than market value and the assistance which I gave them with respect to their Esperance property."
Tom and Fred challenged the validity of that will. On 15 October 1992 they lodged a caveat in the probate office preventing probate of the will being granted to the executrix. On 26 November 1992 the executrix brought an action in this Court, CIV 2502 of 1992, to remove the caveat. The sons challenged the will on the basis that the deceased was not of sound mind at the time of making it and that he was also under the undue influence of Lynette Jeanne Talbot. That action came on for hearing before Commissioner Macknay QC and was dismissed for reasons published: Lyons & Anor v Talbot & Anor, unreported; SCt of WA; Library No 930469; 31 August 1993.
In the present application for summary judgment the plaintiff relies primarily on admissions made by the defendants and findings of fact made by the trial Judge in another action, CIV 2302 of 1993. That was an action brought by Tom and Fred under s 6 of the Inheritance (Family and Dependants Provision) Act 1972 (WA) ("the Inheritance Act") for a proper provision from their father's estate. Affidavit evidence was led in that case and the principal witnesses were cross‑examined. The case was heard by Parker J who delivered a judgment: Talbot & Anor v Talbot & Ors, unreported; SCt of WA; Library No 960092; 22 February 1996. He dismissed the claim of Tom but he allowed the claim of Fred and ruled that he should take a one‑half of the testator's interest in a farming property, Wedderburn, and that the entitlement under the will of Lynette Jeanne Talbot should be correspondingly diminished. As a result of the ruling of Parker J, Fred's share in the property increased to one‑half.
In the inheritance action a statement of assets and liabilities of the deceased, exhibit 9, was tendered by consent (p 101 of the transcript) and that showed that Tom owed him $66,627 and Fred owed him $40,640. A similar statement was tendered in the first action, 2502 of 1992, before Commissioner Macknay QC and it showed that the same sums were owing to the deceased as at 30 June 1989 and 30 June 1990. Tom and Fred led evidence at that trial of the inheritance action that in 1961 the deceased formed a farming partnership with his two sons, known as T H Talbot & Sons. He owned a half interest in the partnership and each son owned a quarter interest. The partnership did not own the land, but at that time Thomas transferred a quarter share in various farming properties to each of his two sons. In 1981 the partnership was rearranged and the parties entered into an agreement, undated but later stamped, and which was produced to the court. Under that agreement the partnership was henceforth to operate as a trust with Pogon Pty Ltd ("Pogon") as the trustee company. The deceased agreed to sell a one‑sixth interest in the partnership to Pogon and to sell to each of his two sons a one‑twelfth share in certain lands for a purchase price to be calculated in a way set out in the agreement. The result of this was that the deceased's interest in the lands would reduce to one‑third and the interests of Tom and Fred would increase to one‑third each. The deed in cl 4 provided that:
"The purchase price shall be paid by each of TH, FM and the company to the vendor upon written demand free of interest."
The agreement also provided that settlement date would be 1 July 1981, from which date Pogon would get a one‑sixth interest in the partnership and Tom and Fred would be entitled to possession of the lands. This agreement was implemented, albeit slowly in relation to the land. Thomas transferred a one‑sixth interest in the partnership to Pogon. Thomas transferred a one‑twelfth interest in certain farming properties to Tom and Fred and, in 1996, after his death, the executrix transferred the same share to them in relation to the remainder of the properties listed in the agreement. As a result of the agreement, Tom and Fred together became in equity two‑third owners of the farming property Benger, valued at $1,140,000 at the date of death, and of the farming property Wedderburn, valued at $3,185,000 as at the date of death.
Evidence was led from Fred and Tom as to the sums said to be owing to their father. In Fred's affidavit tendered in the inheritance action at par 23 he said:
"23.In or around 1962 Tom and I purchased a one‑quarter share each in TH Talbot & Sons and the debt was to be worked off. Later this was amended to one‑third share each at the request of Tom senior and his accountants. Either at that stage, or before, a debt of some one hundred thousand dollars ($100,000) was created for Tom and myself as an interest free loan to be called on at any time. This is the debt referred to in the will. The partnership involved the farms at Wedderburn and Benger and the coast property Binningup."
Tom in his affidavit in support at par 19 said this:
"19.In 1961 Tom senior and Albert junior split up and Tom senior, Fred and myself formed a partnership known as TH Talbot & Sons. Tom senior owned 50% and Fred and I, 25% each. It was at Alby's insistence that Fred and I have the 25% share. Tom senior insisted that we should pay for it."
In cross‑examination in the inheritance action Fred said this:
"Just getting back to then the partnership property in 1962, was there a formal arrangement between you and your father - you, your brother and your father? --- What do you mean by formal?
In the sense of being a formal partnership document? --- I believe there would have been. I'm sure there would have been.
Did you ever see it? Were you ever a party to it? --- Well, yes, I guess we would have, but it is a long time ago and I couldn't comment on it to give you the exactness.
You are sure that there would have been a formal document, but it has now disappeared. Is that what you are saying? --- Well, I don't have a copy of it, no.
What was the arrangement then between you and your father in terms of you paying for your quarter share? --- As I understood there was a loan debt created and that was to be balanced out over the years with profits or undrawn profits and, as I understood, the initial purchase was virtually wiped out and the 100,000 we talked of earlier on, I believe, was probably an addition to what was left of that debt and that would have been an addition to in about 81 when the partnership was readjusted.
…
I see. Well, putting aside that then, your father must have said to you, 'Look, Fred, for your quarter share you have to pay me a certain amount of money.' Did he say that to you or words to that effect? --- Not in outright words, no.
Well, what was your understanding of what you had to pay your dad? --- I think I explained it earlier on that it was a partnership agreement. The debt was an interest free loan, as I understand it and remember it, and it would be adjusted out over time depending on how profits were drawn or not drawn.
In fact you have never paid anything off that loan, have you? --- I believe so, yes. I believe it was accounted for during the subsequent years but maybe not entirely."
…
And you had no direct knowledge of you paying any amount in reduction of that loan. Is that what your evidence is? --- Direct knowledge, yes.
But you assume that somehow or another over the years something has been done in the accounts to reflect some payment by you. Is that what you are saying? --- Look, the words my father used was that we were to work the debt off. What he meant by that I'm not exactly sure but that was the words he used at the time in setting up the partnership - 'You boys will work the debt off.' "
In re‑examination, Fred said this:
"Are you able to say whether, at the time of forming that partnership in or around 1962, there was any debt created as between you and your brother and your father? --- I don't remember the exact debt, no, or if in fact there was a debt. I believe my understanding is that it was an interest free loan.
Right? --- And to be worked off. I remember him mentioning those words."
Tom, in cross‑examination, said this:
"The partnership that was established in 1962 between your father and yourself and your brother? --- Yes.
What did you have to pay for that? What did your father say you had to pay for your quarter share at that time? --- I should explain that when we were younger we had absolute - I think my brother would be the same - absolute faith in our father. Absolute trust and we signed documents and if he said he wanted something signed we would just sign it. Certainly I would and I never questioned his decisions and so I didn't take a lot of notice. If he said you know, 'Sign, this is what we are going to do,' that's what I would have done and I can't recall too clearly what the situation was.
So you don't know either what you had to pay for your quarter share of the partnership property? --- My understanding all the time right through - both the quarter and then it was increased to a third share - was that the accountants had advised him that even though death duties were not in vogue at that time that we should - that we should, you know, transfer as much of the property to us, as we were younger then, as could be done over a period until we were transferred the whole property as in fact his father had done to him, and that is as I understood it.
So in other words it was a gift, is that what you are saying? --- Well, that's what I thought and then subsequently he said to me a couple of times in later years, 'There is a debt I could call up you know. There is a debt I could call up,' and that's when I realised that there had been a debt created.
But you have got no idea of how much or when it was to be repaid? --- I thought it was all an accounting process and I didn't really think it would ever have to be repaid.
I see, all right. And in relation to the establishment or the restructure of the partnership in 1981 when Pogon was incorporated and your share was increased to a third, is it the same story there; you don't know how much you had to pay, if anything? --- That's correct.
So again you considered that to be a gift, did you? --- Yes.
In effect a gift? --- Yes. I had understood all my life that in fact the farm was going to be ours. That's what he had led me to believe and I just thought it was the process that was being gone through, you know, to effect ---
Well, in fact you and your brother have ended up with two‑thirds, haven't you? --- At this stage, yes.
As you say, virtually a gift given to you by his father in his lifetime? --- Well, as I understand it we certainly haven't paid any money for it, no, but I know now from the will that he expected us to pay $100,000 but at that time I didn't."
In the inheritance action Parker J made some findings of fact on these two sums and I quote from 12 to 15 of his reasons:
"The plaintiffs, however, deposed that the shares in the partnership and their interests in Wedderburn and Benger were not a gift; that they were required to pay for their share. In cross‑examination although Fred said that he thought the initial debt had been virtually wiped out, he was unable to specify the amount of that debt and he admitted that his father never actually said they had to pay for their shares in the partnership. Tom gave evidence that he thought the shares were a gift and although the testator later said a debt had been created that could be called up at any time, Tom did not think the debt would ever have to be repaid. I accept the tenor of the plaintiffs' evidence that the arrangements made in 1962 were to their knowledge informal and lacked specificity.
The evidence is lacking any contemporary documentary verification. There are also differences between the evidence of the plaintiffs, and their original knowledge and their recollection was and is less than clear and complete. I was impressed, though, with the apparent honesty of each of the plaintiffs generally and in particular with respect to these matters. In my view there is no attempt to mislead the court. Having weighed all these matters and the surrounding circumstances, and while conscious of the deficiencies of the evidence and that honesty does not overcome a lack of knowledge, nevertheless, I am persuaded on the balance of probabilities that the shares of the two sons in the partnership and their interests in Wedderburn and Benger, were not gifts to them by the testator but were acquired for value. Given that the partnership was formed on the dissolution of the former partnership of the testator and his brother, the likelihood is that the value was not market value; in particular, in the case of Wedderburn and Benger it is more likely than not to have reflected the book value of those properties in the books of the former partnership between the testator and his brother. Tom's evidence of the words of the testator that a debt had been created and it could be called up at any time reflected what, on the balance of probabilities, I am persuaded was the true position despite Tom's understanding, or perhaps more accurately his hope, that there was a gift.
In fact the debts were never 'called up'. Nor were they ever cleared by a direct payment by the plaintiffs. There is a debt due to the estate of the testator by each of the plaintiffs. These debts are further considered later in these reasons. Together they amount to over $107,000. These relate to the partnership shares and the interests in Benger and Wedderburn. It is more likely to be the position that by 1981 the original 1962 debts had been cleared, no doubt by a process of book entries over the years adjusting the positions of the testator and the plaintiffs from the plaintiffs' notional entitlements from the partnership. If the original debts were not cleared in that way, then the debts now due to the estate represent the outstanding balance of the original debts together with the further debts incurred in 1981 as discussed shortly.
The matter is further complicated by the fact that the relationship between the partners was significantly altered in 1981, by the formal written agreement to which I have already referred (Exhibit 2). By that agreement each of the plaintiffs' interests in Wedderburn and Benger and their shares in the partnership, through Pogon Pty Ltd, were increased to one third in consideration for which they were to pay a purchase price to the testator be determined by mutual agreement between the plaintiffs and the testator (cl 3(a)).
At that time also the company, Pogon Pty Ltd, was brought into the partnership structure by the testator. It appears that from that time on the partnership was operated through Pogon Pty Ltd although up to the date of the death of the testator the accounts of the partnership were still prepared in the name of T H Talbot & Sons. No final conclusion can be made about that as there are no company returns or trust documents before me.
There would appear to be some consensus as to what is currently owing by the plaintiffs to the estate. The plaintiffs' were agreed that between them they were indebted to the estate in the sum of approximately $100,000. Fred in an affidavit evidence, said that the debt created in 1962 was in the sum of $100,000 however, in cross-examination it became apparent that Fred thought a further debt of $100,000 for each brother was created to reflect the increase in the plaintiffs' interests in Wedderburn and Benger and their shares in the partnership from one quarter to one third. This is apparent from the following passage from his cross-examination:
'What was the arrangement then between you and your father in terms of you paying for your quarter share?---As I understood there was a loan debt created and that was to be balanced out over the years with profits or undrawn profits and, as I understood, the initial purchase was virtually wiped out and the 100,000 we talked of earlier on, I believe, was probably an addition to what was left of that debt and that would have been in addition to in about 81 when the partnership was readjusted.'
In addition to the evidence given on behalf of the plaintiffs there is a Statement of Assets and Liabilities of the estate of the testator (Exhibit 9) tendered by consent which was prepared for the purposes of securing probate of the will. That document lists the following debts as assets of the estate:
'T.H. Talbot (J.R.) $66,627
F.M. Talbot $40,640'
As the total of those amounts ($107,267) equates, approximately, with the other estimates of the amounts outstanding, I am prepared to accept, in the absence of further evidence, that the sums in Exhibit 9 are the amounts currently owing by the plaintiffs to the testator's estate in respect of the plaintiffs' shareholding in the partnership and their interests in Wedderburn and Benger including the increase in them in 1981 from one quarter to one third.
There is not sufficient evidence to enable precise findings whether the $100,000 figure represented the value of the increased interest of each brother in 1981 or was below current value (as cl 3 of the Will might suggest)." (Emphasis mine)

I consider it was necessary for the trial Judge in that action to make findings of fact on those matters. It was necessary for him to make findings as to the assets and the liabilities, ie as to the net assets, of Tom and Fred as a preliminary to deciding whether adequate provision had been made for them in the will, and, if not, whether the court should, in its discretion, make a better provision for them. I consider that those findings of Parker J that the sum of $66,627 was owed by Tom and $40,640 owed by Fred as at the date of death amount to issue estoppel, ie binding findings of fact against the defendants.
If I be wrong in that finding, what additional evidence have they offered in this case on these sums? In the affidavit of Fred sworn 10 January 2000 in resistance to this application, which was filed on behalf of both Fred and Tom, he has verified the defence and counterclaim filed herein on 20 September 1999. In that defence they plead that the 1981 agreement was never intended to create any enforceable debt owing by them because of the matters set out hereunder. The pleading goes on to state in par 53 that at the time of executing the land transfers to give effect to the 1961 agreement, the deceased told them that he would not call in the debt and that he was entering into a transaction on the advice of his accountant ("the debt representation"). In reliance on that representation they executed the transfers. In par 56 and following paragraphs it is pleaded that in the 1960s the deceased discussed with Tom the best way to divide the Wedderburn property and represented that Tom and Fred would inherit the family farming properties. In 1964 Fred became engaged and the deceased informed him that a matrimonial home should be built and the house should be built on the south side of Wedderburn and that the property could then be split evenly between Fred and Tom, that Tom would inherit the northern side of Wedderburn, including the house, and Fred would inherit the southern side. Victoria Road would be the dividing line. Those representations concerning the division of the property ("the Victoria Road representation") were made in order to induce Fred and Tom to continue to work on the family farming properties on the basis that they would one day inherit the family properties. It is also pleaded at par 64 and following that Fred built the house and carried out other improvements. Upon the representation of his father that Fred and Tom would one day inherit the farming properties ("the improvements representation"), Fred and Tom worked for minimum wages for T H Talbot & Sons in reliance upon the inheritance representation, the Victoria Road representation and the improvements representation and thereby acted to their detriment.
In par 80 and onwards it is said that in approximately 1975 Fred was managing 1500 to 2000 head of cattle over three properties, separated by a total distance of approximately 450 miles and receiving minimal income. He informed the deceased that the workload was too much and he wanted to make provision for his own sons and he wanted to take his half of Benger and Wedderburn and leave the partnership. The deceased urged him to stay with the representation that Fred and Tom would one day inherit the farming properties ("the partnership representation") and as a result of that, Fred continued to work for the partnership.
In par 96 and onwards it is pleaded that in 1981, upon the advice of T H Talbot & Sons' accountant, they entered into the agreement and created the Talbot Unit Trust with Pogon as trustee. In 1982 the deceased created the Talbot Family Trust. Neither Fred nor Tom were beneficiaries under that trust. (I think the beneficiaries were the deceased and his daughters). At the time of the creation of the Talbot Family Trust, the deceased informed Fred and Tom that they had been left out of the trust because they would be getting the family farming properties ("the family trust representation").
The relief claimed in the counterclaim includes:
(a) a declaration that the plaintiff is estopped from claiming any sums of money from the defendants pursuant to the 1981 agreement;
(b)a declaration that as at the date of his death the deceased held his share in the farming properties Wedderburn and Benger and the Glen Murray property on trust for Fred and Tom as tenants in common;
(c)in order that the plaintiff did all things necessary to transfer Glen Murray or the proceeds thereof to Fred and Tom as tenants in common in equal shares.
Some evidence on these representations was led before Parker J, for example, par 28 of Tom's affidavit of 1 March 1994:
"28.In 1957 I was married and lived in an old cottage on the farm. It was in very poor condition, very hot in the summer, cold in the winter and neither fly nor mosquito proof. It was very poorly paid. When I asked TOM SNR for more money, he always said there wasn't any and that the farm one day would be ours. In consideration of this it all seemed worthwhile."
Other similar pieces of evidence were struck out of the affidavit, eg par 52 and par 56 of the same affidavit and par 75 of Fred's affidavit of the same date. Such evidence was led, and I suppose more could have been led, on those representations in that action to persuade the Judge to give them a little better share of the estate. I quote again from part of the evidence of Tom in cross‑examination:
"In effect a gift? --- Yes. I had understood all my life that in fact the farm was going to be ours. That's what he had led me to believe and I just thought it was the process that was being gone through, you know, to effect --- "
Evidence that a son worked hard on a family farm for long years at low wages on a representation from his father that he would one day inherit it, is relevant and admissible in an inheritance action. I consider that they are now barred from leading that evidence in a triple way. Firstly, issue estoppel; the Judge made findings that their shares in the partnership and in the lands were acquired for value and their loans to pay for them could be called up at any time. Their belief that they would one day be forgiven those debts was no more than a hope. Secondly, estoppel on the principle of Port of Melbourne v Anshun Pty Ltd (1981) 147 CLR 589. Insofar as they may not have presented all their evidence on representations in the inheritance action, they had the opportunity to do so, and should now be debarred from raising it again.
Thirdly, I consider that this counterclaim based on the representations said to have been made by the deceased, is time‑barred. Equity follows the law and the period of limitations for bringing this equitable claim of proprietary estoppel is six years. I consider that six years runs either from the date after the death when the defendants first saw the will and discovered that the representations had not been honoured. The deceased died on 8 September 1992 and Fred and Tom lodged a caveat on 15 October 1992 against probate of the will being granted. So it is clear that they saw the will and saw they had been left nothing in it, at least by 15 October 1992. In that case an action for proprietary estoppel became time‑barred by 15 October 1998. This counterclaim, which was the first time this cause of action was raised, was filed on 20 September 1999.
To summarise, I consider that the defendants made admissions in the inheritance action that they owe about $100,000 to the estate of the deceased and have not led any admissible evidence to change that position. Moreover, the findings of fact made by Parker J on the precise amounts owing are binding on the defendants and those findings raise issue estoppel. I consider that their claim for proprietary estoppel based on various representations made by their father is time‑barred, and, in any event, if not time‑barred, cannot now be raised under Anshun estoppel. The debts owing to the father under the 1981 agreement were interest free but payable on demand. Demand was made by letters to Tom and Fred on 3 March 1998, which is after the judgment of Parker J. I am aware that the power to order summary judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried. I consider there is no question of law or fact to be tried in this case in relation to the two sums of money and that no other reason has been given why summary judgment should not be granted. I will enter summary judgment for the plaintiff against Tom in the sum of $66,627 and Fred in the sum of $40,640. In each case interest will run on those judgments at the statutory rate of 6 per cent per annum from 3 March 1998.