Perry v Perry - [2021] NSWSC 1669

Supreme Court

New South Wales

Medium Neutral Citation: Perry v Perry [2021] NSWSC 1669
Hearing dates: 15 – 18 October 2018, 1 - 5 June 2019 and 14 April 2020. Final submissions received 18 August 2021.
Decision date: 17 December 2021
Jurisdiction: Equity
Before: Robb J
Decision:
See pars [500]-[504]. It will be necessary for the Court to make orders to give effect to these reasons after receipt of draft short minutes of order from the parties. Those short minutes of order should provide for a mechanism for the Court to deal with the question of costs, if the parties are unable to agree on that subject.

Catchwords:
CIVIL PROCEDURE — Probate and administration of estates — Administration suit — Where defendant appointed administrator of intestate estate 45 years ago — Where defendant has not yet finalised administration of estate — Where primary asset in intestate estate was land — Where plaintiff beneficiary alleged defendant has maladministered estate and sought accounting on basis of wilful default — Where evidence fallible and contemporary documents lacking — Where findings of credibility practically not possible — Where Court refused to order accounting unless defendant administrator pursues application for account to limit interest of estate in land to its unimproved capital value
CIVIL PROCEDURE — Probate and administration of estates — Administration suit — Where plaintiff beneficiary sought revocation of grant of letters of administration to defendant administrator and appointment of replacement administrator — Where grant made 45 years ago — Where intervening events no longer necessitate orders sought — Where Court refused to make orders sought
EQUITY — Trusts and trustees — Powers, duties, rights and liabilities — Power to provide for maintenance and advancement of minor beneficiaries — Where defendant administrator used beneficiaries’ entitlements in estate to provide for their maintenance and advancement during their minority — Where plaintiff beneficiary argued defendant administrator not entitled to do that — Where plaintiff beneficiary attained majority over 20 years ago — Where defendant administrator single parent with limited source of income — Where Court found orders can be made authorising trustee to apply income of trust for maintenance, education and advancement of minor beneficiaries

Legislation Cited:
Administration of Estates Act 1954 (NSW)
Evidence Act 1995 (NSW)
Interpretation Act 1987 (NSW)
Limitation Act 1969 (NSW)
Probate and Administration Act 1898 (NSW)
Trustee Act 1929 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Andrews v Partington (1791) 3 Bro CC 401; 29 ER 610
Barlow v Grant (1684) 1 Vern 255; 23 ER 451
Brown v Smith (1878) 10 Ch D 377
Campbell v Campbell [2015] NSWSC 784
Caterpillar Financial Australia Ltd v Ovens Nominees Pty Ltd [2011] FCA 677
Clay v Clay (2001) 202 CLR 410; [2001] HCA 9
Countess of Bective v The Federal Commissioner of Taxation (1932) 47 CLR 417
Cubillo v Commonwealth of Australia (No 2) (2000) 103 FCR 1; [2000] FCA 1084
Dark v Dark [2016] NSWSC 1223
Davis v Davis [2014] WASC 395
Department of Health and Community Services (NT) v JWB and SMB (Marion's case) (1992) 175 CLR 218; [1992] HCA 15
Evans v Braddock [2015] NSWSC 249
Ex parte Chambers, in the Matter of Chambers (1829) 1 Russ & M 577; 39 ER 221
Ex parte Green (1820) 1 Jac & W 253; 37 ER 372
Flourentzou v Spink [2019] NSWCA 315
Fountain v Alexander (1982) 150 CLR 615; [1982] HCA 16
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Hewer v Bryant [1970] 1 QB 357
Hons v Hons [2010] NSWSC 247
Hoste v Pratt [1798] 3 Ves Jun 730; 30 ER 1243
In re Cahill’s Estate (1886) 12 VLR 228
In re Howarth (1873) LR 8 Ch App 415
In re Richards (1931) 31 SR (NSW) 565
In the Estate of Dwyer (decd) (1886) 12 VLR 303
Kerferd v Perpetual Executors and Trustees Association of Australasia Ltd (1893) 19 VLR 700
Maberly v Turton (1808) 14 Ves Jun 499; 33 ER 612
McEvoy v McEvoy (No 2) [2013] NSWSC 1162
Meshumar v Otmy (2018) 97 NSWLR 615; [2018] NSWSC 125
Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78
Neale v Bank of Western Australia [2014] NSWSC 315
Pavlis v Pavlis [2021] NSWSC 1117
Re Application of a Local Health District; Patient Fay [2016] NSWSC 624
Re Moylan (1881) 5 AJR 67
Re Neeson (1869) 6 WW. & aB. Eq. 319
Re Pleash (as joint and several liquidators of Suncoast Restoration Pty Ltd (in liq) [2013] FCA 355; (2013) 93 ACSR 606
Re Walder; Townsend v Walder (1903) 3 SR (NSW) 375; 20 WN (NSW) 144
Reeves v Brymer (1801) 6 Ves Jun 516; 31 ER 1172
Robison v Killey (1862) 30 Beav 520; 54 ER 991
Sherwood v Smith (1801) 6 Ves Jun 454; 31 ER 1141
Singh v Singh [2017] NSWCA 234
Sisson v Shaw (1804) 9 Ves Jun 285; 32 ER 612
Spink v Flourentzou [2019] NSWSC 256
Warner v Hung, in the matter of Bellpac Pty Ltd (recs and mgrs apptd) (in liq) (No 2) [2011] FCA 1123; (2011) 297 ALR 56
Watson v Foxman (1995) 49 NSWLR 315

Texts Cited:
G E Dal Pont and K Mackie, Law of Succession (2nd ed, 2017, LexisNexis Butterworths)
J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (8th ed, LexisNexis Butterworths)

Category: Principal judgment
Parties: Tanya Lynette Perry (plaintiff)
Anne Lynette Perry (first defendant)
Mark William Perry (second defendant)
Michelle Perry (third defendant)
Louise Anne Perry (fourth defendant)
Representation:
Counsel:
J Needham SC/ M M Pringle (plaintiff)
J Gooley/ R M Higgins (first to fourth defendants)
Solicitors:
HWL Ebsworth (plaintiff)
Reynolds & Reynolds Legal Services (first to fourth defendants)

File Number(s): 2016/336648

Judgment

Russell William Perry died in January 1975, at the age of 24, as a result of accidentally drowning in a river.
The family that Russell left behind at the time of his death are parties to these proceedings. Without meaning any disrespect, as all of the parties have the same family name, I will refer to the parties by their first names.
The plaintiff, Tanya, was born in May 1970. The first defendant, Anne, is Russell's widow, and the mother of Tanya, the second defendant, Mark, and the fourth defendant, Louise. Anne did not remarry. Mark was born in July 1972, and Louise was born in June 1974. Each of the children was therefore very young at the time of Russell's death. The third defendant, Michelle, is the wife of Mark.
Russell died intestate. On 23 September 1975, this Court made a grant of letters of administration to Anne.
By application of ss 49 and 50 of the Probate and Administration Act 1898 (NSW), as amended by the Administration of Estates Act 1954 (NSW), the members of Russell's family were entitled to share in his estate in the following proportions: Anne as to one third and the children in equal shares as to the remaining two thirds. The children were therefore each entitled to two ninths of the estate.
Anne has not yet completed the administration of Russell's estate. That is so even though the youngest child, Louise, reached her majority on 14 June 1992. As will be seen below, the assets in Russell's estate have been used for various family purposes.
Following Russell's death, Anne was faced with the need to fend for herself and to bring up her three children. The primary asset in Russell's estate was a half interest with Russell's brother, Ray, in a farming property at Fernmount, near Bellingen, in the north of New South Wales. The parties called this property the Fernmount land.
At the time of Russell's death, there was a dwelling house on the Fernmount land. The dwelling house burnt down, and Anne received half of the proceeds of the fire insurance policy. That money formed part of Russell's estate. Anne used the money, together with a small additional sum that was borrowed, to buy Ray's half share in the Fernmount land.
Thereafter, at various times, a new dwelling house and a cottage were constructed on the Fernmount land. A large shed was relocated to the Fernmount land, a piggery was established by Anne on the Fernmount land, and Mark and Michelle agisted their dairy cattle on the Fernmount land, in return for which they carried out improvements and took care of the land. Anne lived in the dwelling house on the land as her home until recently. Mark and Michelle dwelt in the cottage for a number of years. Tanya and Louise even obtained a development approval from the local council for the construction and operation of an eco-tourism lodge on the Fernmount land.
The family has now been engulfed by the dispute that has led to the present proceedings.
Tanya lodged a caveat against the title to the Fernmount land to protect her interest in Russell's estate, insofar as that interest consisted of a beneficial interest in the Fernmount land.

History of the proceedings

These proceedings were commenced by statement of claim filed by Tanya on 10 November 2016.
The proceedings were set down for hearing before me for a period of seven days commencing on 15 October 2018.
On 18 October 2018, the fourth day of the hearing, Tanya sought leave to further amend her statement of claim. I made case management orders that required Tanya to serve a draft pleading on the defendants and vacated the balance of the hearing. Tanya filed her further amended statement of claim (FASOC) on 8 April 2019. The defendants filed their further amended defence (FAD) in response on 1 May 2019. A reply was filed by Tanya on 27 May 2019. Those were the pleadings upon the basis of which these proceedings were finally conducted. The proceedings have been conducted by the parties closely by reference to the pleadings. It will be necessary to analyse the pleadings below.
The Court was able to list the balance of the hearing on 1 July 2019, and it was concluded after a further five days.
Tanya delivered comprehensive written submissions on 30 August 2019 (PS) and the defendants responded on 5 November 2019 (DS).
The parties sought and were given an opportunity to make oral submissions to the Court. That occurred on 17 April 2020.
In addition, a number of directions hearings were necessary in order for the Court to make orders to govern the sale of the Fernmount land. That came about because of a decision by Anne to sell the Fernmount land in any event. In circumstances that I will explain more fully below, the manner in which the Fernmount land was put to the market, and the price gained for it, have a material bearing on the resolution of one of the significant issues in this case.
There was a dispute between the parties as to whether the fact that the development approval granted by the local council was permanently attached to the Fernmount land added to its market value, and if so by how much. The orders that the Court made to govern the manner of sale of the Fernmount land were in part designed to facilitate the possibility that the existence of the development approval would improve the sale price, and also the prospect that the sale process would itself generate evidence that would assist in resolving the uncertainty about whether the existence of the development approval added value to the Fernmount land.
Consequently, while these reasons for judgment were in the course of preparation, I caused my Associate to send an email to the parties' legal representatives to enquire whether anything had occurred during the process of putting the Fernmount land to market that was relevant to the resolution of the dispute between the parties and which they wished the Court to take into account in determining the proceedings. I will deal with this issue below when I consider what Tanya pleaded as her joint venture claim in relation to the alleged improvement to the value of the Fernmount land by reason of the existence of the development approval.
Another significant event during the course of preparation of these reasons was that, on 18 September 2020, Tanya filed a notice of motion in which she sought a grant of leave to reopen her case for the purpose of adducing further affidavit evidence on an issue relevant to the determination of the assets that were included in Russell's estate. That issue was whether money received by Anne from the sale of a property called Pony Paddocks owned by Russell’s mother, Ellen, was received in her personal capacity, or whether it was part of Russell’s estate, and so partly held on trust for Tanya. The additional evidence was contained in an affidavit sworn on 17 September 2020 by Vicki Perry, the wife of Russell’s brother Ray.
On 16 October 2020, the Court made orders by consent giving Tanya leave to reopen her case and for the defendants to serve evidence in reply. The defendants served a further affidavit of Anne sworn on 27 October 2020.
The defendants’ solicitor advised my Associate by email dated 9 November 2020 that the Fernmount land was proposed to be sold by auction on 28 November 2020, with the proceeds of sale being held on trust pending my decision.
On 13 November 2020, the Court made orders by consent for the service of further written submissions by the parties as to the significance of the new evidence. Tanya served those submissions on 17 November 2020 and the defendants responded on 1 December 2020.
On 30 November 2020, the Court was advised by Tanya’s solicitors that the Fernmount land had been sold for a price of $1,800,000, and that the parties wished to consider the possibility of providing the Court with an agreed statement of facts concerning the significance of the sale. On 15 December 2020, the solicitors informed the Court that an issue had arisen regarding the status of the auction, and that it would not be possible for the parties to settle any agreed statement of facts until the new court term in 2021.
In the meantime, I engaged in the preparation of draft reasons for judgment but, as it happened, ceased that task on 29 January 2021 while the draft was incomplete, in the expectation that the Court would soon receive an agreed statement of facts.
Thereafter, in circumstances that do not require elaborate explanation, there was further delay as a result of the purchaser at the auction defaulting, and the parties facing the need to renew the sale campaign.
On 6 July 2021, the parties delivered to the Court an agreed statement of facts in relation to the sale of the Fernmount land.
In accordance with further consent orders made by the Court on 14 July 2021, Tanya served further written submissions dated 28 July 2021 on the issue of the significance of the sale process and the result of the sale. The defendants responded by serving their final written submissions on this issue on 12 August 2021.
Circumstances did not permit the Court to recommence the task of completing and revising the draft reasons for judgment until 30 September 2021.
Unfortunately, it sometimes happens when proceedings are amended part heard, and where the hearing cannot be concluded in the time allotted, that the exercise in which the Court must engage in formulating its reasons can become protracted. That is in part because the Court is required to properly resolve complex issues long after the forensic contest has passed from immediate memory.
Although the dispute in these proceedings focuses on a limited number of aspects of the administration of Russell's estate, in a real way it brings into play the whole of the administration of the estate over the 45 years since letters of administration were granted to Anne on 23 September 1975.
As will be seen, that fact has considerable significance to the manner in which the forensic issues between the parties must be resolved.

Relief sought by Tanya

It will be convenient for the Court to start by describing the relief sought by Tanya in the FASOC. Given the considerable period that has elapsed since the commencement of the hearing and the filing of the amended pleadings, it will be necessary for the Court to analyse the pleadings in somewhat mechanical detail, and to set out that analysis. This is in order to demonstrate that the Court has properly addressed the issues, notwithstanding the time that has elapsed before the judgment has been able to be delivered.

Appointment of a new administrator

By prayer 1A, Tanya seeks an order from the Court revoking the grant of letters of administration made by the Court on 23 September 1975 to Anne. By prayer 1B, Tanya seeks a grant of letters of administration to herself, and in the alternative by prayer 1C, to a person identified as Jeremy Glass.
The defendants oppose these orders being made, largely on the ground that they contest the claim that Anne has been guilty of maladministration, and in any event they say that, as the Fernmount land has been sold, there is no warrant for the Court to make orders that will subject the estate to the need to incur unnecessary costs. The defendants contend that, whatever the outcome of these proceedings, it will be convenient for Anne to complete the administration of the estate under the supervision of the Court.
As the premise upon which this aspect of the relief has been sought depends upon a finding that Anne has failed in her duties as administrator of Russell's estate, it will be convenient to defer further consideration of whether this relief should be granted until towards the end of these reasons.

Declaration as to Tanya’s entitlement to estate

By prayer 1D, Tanya seeks a declaration that she is entitled to two ninths of Russell's estate.
The defendants do not now contest that nominal entitlement on Tanya's part. The difficulty lies in determining the property contained in Russell's estate of which Tanya is entitled to two ninths.

Declaration that the Fernmount land is part of the estate

Tanya seeks by prayer 1B a declaration that Anne holds the whole of the Fernmount land on trust for Russell's estate.
The defendants contest the making of that declaration. They accept that one half of the title to the Fernmount land was owned by Russell at the time of his death and accordingly is part of his estate. The defendants accept that the $15,000 that Anne received as fire insurance for the dwelling house that burnt down is part of Russell's estate, and accordingly the portion of Ray's share of the Fernmount land that was purchased by Anne using the insurance money is also part of Russell's estate. However, the price paid by Anne for Russell's share was $17,000, and she personally borrowed and repaid $2,000 to make up that price. The defendants say that the portion of Ray's share purchased with the $2,000 is not part of Russell's estate.
The defendants also say that, because the dwelling house on the Fernmount land burnt down, the land was effectively unencumbered in-so-far as it was an asset of Russell's estate. They say that Anne, with the help of her brothers, and later with the assistance of Mark and Michelle, erected the dwelling house, the cottage, the shed, and the piggery on the Fernmount land. They also made other improvements using their own funds and labour. The defendants say that Russell's estate is limited to a portion of the unimproved Fernmount land.

Order against Anne for an account

By prayer 2, Tanya seeks an order against Anne that she account to Tanya on a wilful default basis in respect of her use of the Fernmount land, and also the proceeds of sale of property that the parties called the Pony Paddocks. Prayer 4 is a claim for an order against Anne that she pay to Tanya the money found to be due to her as a result of the taking of the account. The effect of prayer 4C is that Tanya seeks an order under Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 54.3 that Anne verify the estate accounts.
Before I comment further on this aspect of the relief sought, I should briefly explain the reference to the Pony Paddocks.
Between 1981 and 1987, Anne received a total of $83,296.89 in a number of payments from Russell's mother, Ellen. Those payments represented in total one third of the net sale price of certain land that the family called the Pony Paddocks. Tanya claims that Ellen held the Pony Paddocks on trust for Russell and his two siblings in equal shares, as a result of the Pony Paddocks having been purchased by Ellen with money supplied by Russell's paternal aunts, for the purpose of being held on trust for Russell and his siblings. Tanya contends that, when the one third of the proceeds of sale was paid by Ellen to Anne, it formed part of Russell's estate, and ought to have been distributed to the persons entitled on intestacy. That did not happen, and Anne applied the money for other purposes. I will explain this aspect of the dispute in more detail below.

For present purposes, it should be noted that, by prayer 2, Tanya seeks an order that Anne account for the proceeds of sale of the Pony Paddocks, together with her use of the Fernmount land generally, on the basis of wilful default. As mentioned, Tanya seeks an order that Anne verify the estate accounts.
For the moment, I record that this order for the verification of estate accounts, if made, would impose upon Anne the Herculean, but more probably impossible, task of reconstructing what was done with the Fernmount land and the proceeds of sale of the Pony Paddocks over a period of some 45 years.
By prayer 4B, Tanya seeks an order against Anne that she indemnify Tanya in respect of the loss of Tanya's share in the proceeds of sale of the Pony Paddocks.

Order for the sale of the Fernmount land

A second aspect of prayer 4C is that Tanya seeks an order for the appointment of a broker to sell the Fernmount land.
That claim, at least, has been obviated by the fact that Anne has independently decided, during the course of the proceedings, to sell the Fernmount land, and the Court has been required to resolve disputes between the parties and to make orders as to how that sale process would be conducted.

Orders concerning mortgages over the Fernmount land

Tanya then seeks, by prayers 4A, 5 and 6, orders that Anne account to Tanya on a wilful default basis, and that Anne, Mark and Michelle indemnify Tanya, in respect of the consequences of a number of mortgages that Anne granted over the Fernmount land. Those mortgages were granted to secure guarantees that she gave to lenders to Mark and Michelle to enable them to acquire and conduct dairying enterprises in the vicinity of Bellingen. Tanya claims that the mortgages were not granted with her informed consent and caused her prejudice.
Although this issue must be considered in more detail below, Tanya's claim that the conduct of the defendants caused her prejudice may have been obviated by the fact that, during the course of the proceedings, Mark and Michelle have reordered their financial affairs so that all mortgages on the Fernmount land granted for their benefit have been discharged. While the existence of the mortgages may have prejudiced Tanya, had the lenders exercised their security rights, that did not happen, and now cannot happen.
Tanya has, however, by prayer 6, claimed an order against Mark and Michelle that they account to Tanya for the profits that they have made by means of the use of Tanya's interest in the Fernmount land.
If that claim has substance, it would survive the removal of the mortgages from the Fernmount land. That will depend upon whether Tanya can identify a principle upon which Mark and Michelle would have to account to Tanya for their profits in the circumstances.
It may, in any event, be that the resolution of the issue concerning Anne granting mortgages over the Fernmount land is relevant to questions of costs in the proceedings.

Relief concerning the value of the eco-tourism development approval

Tanya seeks, by prayer 6A, a declaration that Anne holds "the value" of a joint venture agreement on trust for Tanya and Louise. This is a reference to the fact that the family agreed that Tanya and Louise could take the steps necessary to enable them to establish an eco-tourism lodge on the Fernmount land in a joint venture with the family. For reasons that will be explained later, the joint venture agreement led to the local council granting a development approval, which is now permanently attached to the Fernmount land. However, for financial reasons, the family abandoned the proposal to actually construct and operate the eco-tourism lodge. Tanya contends that, nonetheless, the permanent attachment of the development approval adds substantial value to the Fernmount land.
Tanya contends, by her formulation of prayer 6A, that the amount held on trust by Anne in respect of the value of the joint venture agreement should be the greater of $350,000, and the difference between the market value of the Fernmount land without the development approval and the sale price. The $350,000 is the amount that Tanya contended was the cost incurred by Tanya, by the expenditure of money or time, in getting to the point where the development approval was issued, and the works substantially commenced.

Account to determine value of Tanya’s contributions

The final substantive order sought by Tanya is the order in prayer 7 that an accounting be conducted to ascertain the value of Tanya's contribution to Russell's estate by, first, expenditure in respect of the joint venture agreement on the basis of a quantum meruit, and secondly, by contributions towards repayment of earlier mortgages on the Fernmount land entered into by Anne in order to carry out operations on that land.

Costs

Tanya seeks her costs of the proceedings on the indemnity basis, or alternatively, the ordinary basis.

Claims pleaded by Tanya

Tanya has made a number of separate claims in support of the relief that has been set out above. I will generally deal with those claims in the order in which they have been pleaded in the FASOC.
However, it will be convenient to refer to Tanya's claim that Anne has failed to properly administer Russell's estate first, as that is the basic underlying claim that Tanya makes.
It will be appropriate to foreshadow that the most significant factor in this case is the existence and effect of an informal and imprecise arrangement that operated within the Perry family for many years, which the parties called the "family deal". The family deal took one form during the minority of Anne and Russell's children, but continued in another form with the involvement and consent of the children up until about October 2015.
During the minority of each of Anne and Russell's children, they did not have capacity to consent in a binding way to Anne conducting the administration of Russell's estate other than conventionally in accordance with her duties as administrator. However, when each child attained their majority, they were free to take whatever proceedings were necessary in respect of Anne’s past and future administration of the estate. None of the children did so. Instead, up to a time shortly before the commencement of the proceedings, when Tanya repudiated the family deal, all members of the family had agreed or acquiesced in the manner in which Anne applied the assets in the estate. Essentially, Anne administered Russell's estate in accordance with the family deal and not her strict obligations as an administrator under a formal grant of letters of administration.
Notwithstanding the undoubted significance of the family deal, it was not formally pleaded by any party. However, the family deal emerged, even if somewhat obliquely, out of a set of representations that Tanya pleaded were made by Anne over the decades to Tanya, as a ground for absolving Tanya of her delay in instituting these proceedings. I have called those representations, which I will set out below, the Fernmount land representations. The defendants admitted some of the Fernmount land representations and accepted that others were made in slightly different terms to those alleged by Tanya. In this way, the defendants partially embraced Tanya's reliance on the Fernmount land representations, and said that the representations in reality were no more than a component of the family deal, by which all of the Perry family had agreed to and acquiesced in the manner in which Anne had administered Russell's estate.

Anne’s failure to administer Russell’s estate

Tanya's claim that Anne has wrongly failed to administer Russell's estate was succinctly pleaded. Tanya alleged first that Louise attained her majority on 14 June 1992 [1] and that, after that date, Anne has failed to complete the administration [2] .
1. FASOC par 25B
2. FASOC par 25C
The defendants admitted those allegations [3] . However, they added that Tanya was at all relevant times aware that she had an interest in the Fernmount land as a beneficiary of Russell's estate; that until about October 2015, Tanya did not seek any distribution of the estate; and that Tanya has thereby acquiesced in Anne's failure to distribute the estate.
3. FAD pars 24B and 24C

Tanya’s claim for an interest in and for the use of the Fernmount land

The defendants admitted [4] Tanya's allegations that, on 27 January 1975, Anne transmitted Russell's half share in the Fernmount land to herself as administrator, and thereupon held that share on trust for herself and the children during their minority [5] . They also admitted that, in 1976 or 1977, the dwelling house on the Fernmount land burnt down, and Anne received $15,000 as half of the fire insurance proceeds.
4. FAD pars 13 to 16
5. FASOC pars 13 to 16
Tanya alleged that Anne held the $15,000 on trust for the persons entitled under Russell's intestacy [6] . The defendants responded to this allegation [7] by admitting it, but adding that, despite having full knowledge, Tanya did not take steps until the commencement of these proceedings to assert an interest in the insurance policy proceeds, and has thereby acquiesced in Anne's use of those proceeds; that Tanya's cause of action is statute barred; and that Tanya has waived any right to any beneficial interest in the insurance policy proceeds.
6. FASOC par 17
7. FAD par 17
The defendants admitted [8] Tanya's allegation that Anne applied the sum of $15,000, and borrowed $2,000, to fund the purchase of Ray's half share in the Fernmount land [9] .
8. FAD par 19
9. FASOC par 19
Tanya then alleged [10] that, from about 1977, Anne became the sole registered proprietor of the Fernmount land, which she held for herself and on trust for the children in accordance with their entitlements to Russell's estate. The defendants responded to this allegation [11] by admitting that Anne became the sole registered proprietor of the Fernmount land. However, they added allegations that Anne only held a share of the Fernmount land on trust for the children. Anne contributed significant additional funds to retain and maintain the property over a long period of time. Tanya made no financial contribution to maintaining, improving and preserving the property, which was done by Anne at her own expense, or with the assistance of Mark and Michelle. Consequently, the defendants alleged, Anne only held part of the unimproved capital value of the Fernmount land on trust for Tanya, as it had no house on it at the time that Anne purchased Ray's half share.
10. FASOC par 20
11. FAD par 20
In further derogation from Tanya's claim that Anne held the whole of the Fernmount land on trust as part of Russell's estate, the defendants alleged [12] that Anne had occupied the Fernmount land continuously, and paid $150,000 towards the improvement of the Fernmount land given to her by her late brother in approximately 1990. They alleged that Anne erected the new residence in about 1977 to 1978 at her own expense, relying on her labour and that of her brothers. The defendants further alleged that Anne was the owner of an insurance policy on the life of Russell, and that the proceeds of the life insurance policy generated, on 4 October 1978, a fund of $30,000 that was used by Anne for the construction of improvements on the Fernmount land. Anne relocated to the Fernmount land a substantial shed that had been acquired with the life insurance monies. Anne continued to service loans and built other improvements on the Fernmount land, including a piggery built with a Rural Assistance Loan that was serviced by Anne. Anne took out a business loan to carry out final renovations to the residence on the Fernmount land in about 1998 or 1999. Anne paid all outgoings for the Fernmount land until Mark left school at age 14, after which Mark, and later Mark and Michelle, contributed labour and funds towards the maintenance, outgoings and repairs of the Fernmount land over time. Mark and Michelle currently pay all significant outgoings for the Fernmount land, and do maintenance in lieu of paying any agistment fees for their dairy herd. The defendants alleged that Tanya has never paid any outgoings for the Fernmount land.
12. FAD par 21
On the first day of the hearing, the defendants' counsel explained their position on the issue of whether Tanya still has an enforceable interest in the Fernmount land. That position appears to be different to that which would arise out of aspects of the FAD summarised above. The defendants' position is that Tanya continues to have an enforceable two ninths interest in the Fernmount land [13] , but that interest is only in the unimproved value of the Fernmount land comprising Russell's half interest and the portion of Ray's half interest purchased with the fire insurance proceeds [14] .
13. T 5.45
14. T 6.22
In apparent anticipation of the defendants' allegations that Tanya had delayed seeking any relief concerning her interest in the Fernmount land, Tanya pleaded the following allegation [15] :
15. FASOC par 21A

The first defendant had, over a period of years after the death of the deceased and ongoing until the commencement of these proceedings, represented to the plaintiff: –

that her entitlement to her father's estate was 1/9 of one-half share of the Fernmount land;
that she had purchased a half share of the Fernmount land belonging to the Deceased's brother with funds sourced solely from her own borrowings;
that she would remain on the Fernmount land until her death and divide it equally between her children in her will;
that any decisions affecting the Fernmount land would be the subject of discussion and agreement between the plaintiff, the first, second and fourth defendants; and
that the names of the plaintiff, second defendant and fourth defendant could not be put on title to the Fernmount property as to do so would have adverse stamp duty and capital gains tax consequences.
1. I will call these representations the “Fernmount land representations”.
2. In response [16] the defendants admitted that Anne made representations (i) and (iii). They admitted representation (iv) in part, in that Anne made the representation to the extent that decisions would be the subject of discussion, but they denied that the representation included the words "and agreement". The defendants denied that Anne made representations (ii) or (v). Finally, the defendants alleged that, insofar as Tanya pleads a cause of action based upon the Fernmount land representations, they were made more than six years ago, so that the cause of action is statute barred by s 48 of the Limitation Act 1969 (NSW) (Limitation Act).
  16. FAD par 21A
3. Tanya alleged that she relied upon the Fernmount land representations in not seeking to require Anne to administer Russell's estate or to distribute Tanya's share of the estate [17] . The defendants denied this allegation [18] .
  17. FASOC par 21B
  18. FAD par 21B
4. Tanya then alleged that she had suffered the following detriments by reason of her reliance upon the representations [19] , which the defendants denied [20] :
  19. FASOC par 21C
  20. FAD par 21C

a. she allowed the first defendant to continue to reside on the Fernmount land without accounting to the plaintiff for her occupation;

b. she allowed the second and third defendants to benefit from the Fernmount land by using that land in their dairying business and by occupying a house on the Fernmount land from time to time without accounting to the plaintiff for the use and occupation; and

c. by not requiring the first defendant to complete administration of the deceased's estate.

Finally, Tanya alleged that the making of the representations was a breach of trust by Anne [21] , in that Anne encouraged Tanya not to make enquiries as to her interest in Russell's estate, and Anne preferred the interests of Mark and Michelle to the interests of Tanya, to her detriment. The defendants denied this allegation [22] .
21. FASOC par 21D
22. FAD par 21D

Tanya's claim for an interest in the sale proceeds of the Pony Paddocks

Tanya seeks an order that Anne account to her in respect of two ninths of the proceeds of sale of the Pony Paddocks.
Tanya pleaded [23] that Russell's mother, Ellen, held the Pony Paddocks on trust for Russell and his two siblings. The defendants denied this allegation [24] .
23. FASOC par 22
24. FAD par 22AA
Tanya alleged [25] that the trust arose because Ellen had purchased the Pony Paddocks using funds solely provided by Russell's aunts, for the purpose of the Pony Paddocks being acquired on trust for Ellen’s three children. The defendants denied [26] this allegation, but added that, if it was true, Anne was at all relevant times unaware of the facts; that Anne made enquiries and was told by Russell's father that Russell did not hold any interest in land other than the Fernmount land; and that Anne dealt with Ellen, by oral agreement, in which no condition was placed upon the distribution of the funds from the sale of the Pony Paddocks by Ellen, or that those funds be paid to Russell's estate.
25. FASOC par 22A
26. FAD (first) par 22A
Tanya alleged [27] that, before their sale, the Pony Paddocks had been held on resulting trust for Russell and his siblings. The defendants again denied [28] this allegation, but added that, if it was true, Anne was unaware that Ellen held the Pony Paddocks on trust; and that Anne acquired the funds in consideration of her work in assisting Ellen to subdivide and sell the Pony Paddocks, so that she took the funds for value without notice. Tanya replied [29] to this defence by pleading that the value of the funds received by Anne exceeded the value of the work done by her on a quantum meruit basis, and that Anne is only entitled to retain the value of the work done on that basis, and holds the balance of the proceeds of sale on trust for Russell's estate.
27. FASOC par 22B
28. FAD (first) par 22B
29. Reply par 1A
Tanya then alleged [30] that, between 1981 and 1987, Anne received seven payments totalling $83,296.89 from the sale of Russell's interest in the Pony Paddocks. The defendants denied [31] this allegation, and added that Tanya had acquiesced in Anne's use of the proceeds by not taking any steps until the commencement of these proceedings; that Tanya's action is statute barred or alternatively barred by laches; and that, furthermore, to the extent that the proceeds were not invested in the Fernmount land, they were spent on the maintenance and welfare of Tanya, Anne, Mark and Louise. In her reply, Tanya alleged [32] that she had no knowledge sufficient to ground a defence of acquiescence, waiver, or that her claim was statute barred until 10 March 2016. Tanya pleaded that she would rely upon her response to the limitation defences set out more fully in her reply.
30. FASOC par 23
31. FAD par 22
32. Reply par 2
Tanya alleged [33] that, between 1981 and 1987, each of Tanya, Mark and Louise were minors, which was admitted by the defendants [34] .
33. FASOC par 23A
34. FAD (second) par 22A
Tanya alleged [35] that the payments received by Anne from the sale of the Pony Paddocks represented a one third share of the net proceeds of sale of the Pony Paddocks and were made to Anne as part of Russell's estate. The defendants admitted [36] that Anne had received one third of the proceeds of sale but denied the balance of the allegation.
35. FASOC par 23B
36. FAD par 22B
The defendants denied [37] Tanya's allegation [38] that Anne held the proceeds received from the sale of the Pony Paddocks as to one third for herself and two ninths for each of Tanya, Mark and Louise.
37. FAD par 23
38. FASOC par 24
Then Tanya pleaded [39] that Anne, in breach of her duties as administrator of Russell's estate, failed to treat the proceeds as estate funds, and spent the proceeds on household and other expenditure. The defendants denied [40] the allegation, other than to plead that the funds were spent on the maintenance and advancement and education of the minor children, including Tanya, and invested in the Fernmount land.
39. FASOC par 24A
40. FAD par 23A

The defendants admitted [41] that Anne no longer holds the proceeds of sale of the Pony Paddocks [42] .
41. FAD par 23B
42. FASOC par 24B
The defendants denied [43] Tanya's allegation [44] that Anne's failure to distribute or account for the proceeds of sale of the Pony Paddocks, as an asset of Russell's estate, was a wilful default, in breach of her duty to administer the estate, and in breach of her duty as trustee for her minor children.
43. FAD par 24
44. FASOC par 25
Finally, the defendants denied [45] Tanya's allegation [46] that Anne is bound to indemnify or pay equitable compensation to Tanya for any loss suffered by reason of Anne's wilful default.
45. FAD par 24A
46. FASOC par 25A

Contributions of beneficiaries to Russell’s estate

The defendants admitted [47] allegations [48] by Tanya that Anne and Mark were employed by a business operated by Russell's family, but they were dismissed in 1990. The significance of Tanya's allegation is obscure.
47. FAD pars 25 and 26
48. FASOC pars 26 and 27
Tanya then alleged [49] that, between 1992 and 1994, she contributed between $200 and $300 per month to the mortgage over the Fernmount land. The defendants denied this allegation [50] and said that Mark contributed a minimum of $520 per month, and also sold cattle to provide funds for the benefit of the Fernmount land [51] .
49. FASOC par 28
50. FAD par 27
51. FAD par 27
Tanya alleged [52] that, in 1996 and 1997, she contributed funds to renovate the cottage on the Fernmount land occupied by Mark and Michelle. The defendants responded [53] by accepting that Tanya paid a nominal amount for paint but alleged that was in return for advances made to her by Anne. They alleged that Mark and Michelle contributed financially and provided extensive labour. Finally, the defendants alleged that Anne contributed to the renovation cost of her residence and to the cottage on the Fernmount land.
52. FASOC par 29
53. FAD par 28
Finally, Tanya alleged [54] that Mark and Michelle did not pay rent for residing in the cottage on the Fernmount land. The defendants admitted [55] that Mark and Michelle did not pay rent, but said that, in lieu of rent, they carried out and paid for weed eradication, pasture management, cleaning, repairs and maintenance to the entire property, which had fallen into a state of significant disrepair. They said that Mark and Michelle both had employment off the farm, and that they used most of their disposable wages to pay for expenses associated with maintaining the Fernmount land. Mark and Michelle have never been remunerated or reimbursed for their labour on the Fernmount land, or for their contributions to maintenance costs or payment of outgoings. The defendants alleged that the value of the payments and contributions made by Mark and Michelle exceeded the commercial value of any rent that could have been charged for their occupation of the Fernmount land.
54. FASOC par 30
55. FAD par 29

Dealings with the Fernmount land without Tanya's consent

Tanya pleaded a number of claims that Anne, with the participation of Mark and Michelle, breached her duty to Tanya as administrator of Russell's estate by granting mortgages over the Fernmount land without Tanya's consent.
First, Tanya alleged [56] that, from 2002 onwards, Mark used the Fernmount land as collateral for loans to develop his dairying business on another property known as "Caban's". The defendants admitted the allegation [57] , but pleaded that the arrangement was subject to extensive discussions, that Tanya was fully informed of the proposal, and that she gave it her consent and encouragement.
56. FASOC par 31
57. FAD par 30
Tanya then pleaded [58] that, on 26 March 2004, in breach of her duties to Tanya and Russell's estate, and without the knowledge and consent of Tanya, Anne permitted Mark and Michelle to mortgage the Fernmount land to the detriment of Tanya. The defendants denied the allegation [59] and alleged that in about January to March 2003 Tanya was made fully aware of the proposal, which was the subject of extensive discussions with Tanya. They alleged that Tanya expressly consented to the proposal. Further, part of the loan proposed involved the borrowing of the sum of $40,000 to refinance a loan taken out by Anne, used for renovations to the Fernmount land. Further, Mark and Michelle had used their own labour and that of their staff and their machinery on the Fernmount land to carry out farm maintenance, repairs, grade roads, improve pasture, and pay outgoings in order to assist Anne in servicing mortgages secured by the Fernmount land. They alleged that at no time did Tanya demand consideration or set terms for her giving consent to the Fernmount land being used for that purpose.
58. FASOC par 32
59. FAD par 31
Further, the defendants pleaded [60] that Tanya had been fully informed of the proposal during meetings and that she had consented, or acquiesced, or was estopped from claiming contribution or equitable damages, or had waived such a right. Furthermore, any claim she had is statute barred.
60. FAD par 32
Tanya responded by alleging [61] that she had no relevant knowledge of the transactions sufficient to support a defence of acquiescence, estoppel or waiver until 15 October 2015. Tanya also relied upon her general response to the defendants' limitation defences [62] .
61. Reply par 3
62. Reply pars 5 to 12
The general response to the defendants' limitation defences pleaded by Tanya is [63] that the relevant causes of action are not based on liability at law; that the obligation of an administrator to account is a continuing one; and that Tanya first discovered the facts giving rise to the causes of action on one of five specified dates between 15 October 2015 and 22 February 2019. Furthermore, Tanya relied upon the Fernmount land representations.
63. Reply par 5
Tanya pleaded [64] that she was under a disability until 14 May 1988 when she turned 18, so that [65] any limitation period was postponed until that time. Tanya pleaded [66] that, after she turned 18, she relied upon the Fernmount land representations, and because of her limited interest in Russell's estate referred to in those representations, did not make further investigations as to her entitlement to Russell's estate.
64. Reply par 6
65. Reply par 7
66. Reply par 8
Tanya then alleged [67] :
67. Reply par 9

The plaintiff first discovered that her entitlement under intestacy was as to 2/9ths of the deceased's share of the estate, being: –

(a) the funds received by the first defendant for the Pony Paddock;

(b) the one-half share of the Fernmount property; and

(c) the insurance proceeds referred to in paragraph 17 of the Statement of Claim which was used to purchase 15/17ths of the Fernmount property;

when she obtained and read the transcript of the Family Provision Act proceedings on 30 October 2015.

In the circumstances, Tanya pleaded [68] that any relevant bar was postponed until 30 October 2015, given the content of the Fernmount land representations and the reliance by Tanya on them. Consequently [69] , the proceedings were commenced within time.
68. Reply par 10
69. Reply par 11
Finally, Tanya pleaded [70] , in response to the defendants' limitation defences, that the defendants, through their counsel on the first day of the hearing, admitted that Tanya has not lost her proprietary interest in the Fernmount property for limitation reasons, and are not now entitled to withdraw that admission.
70. Reply par 12
Tanya then pleaded [71] another set of representations alleged to have been made by Anne, Mark and Michelle in the following terms:
71. FASOC par 32A

From 2002 onwards the first, second, and third defendants represented to the plaintiff: –

(a) that the indebtedness of the second and third defendants was a business loan to the second and third defendants for the purchase of the business at Caban's;

(b) that the loan was obtained for the sole benefit of the second and third defendants;

(d) that the second and third defendant would cause their dairying business to be sold before the first defendant's guarantee was called on; and

(e) that the Fernmount land was not at risk of being sold pursuant to the guarantee because the second and third defendants would ensure that Fernmount was protected by using their own assets to satisfy any call on the guarantee.

I will call these representations the “Caban's farm representations”.
The particulars given for the Caban's farm representations were that they were all made from late 2002 until around Easter 2003 in conversations between Tanya and Anne, and between Tanya and Mark, and at a meeting with a solicitor at which Tanya, Anne, Mark and Louise were present.
The defendants responded to the pleading of the Caban's farm representations [72] by admitting that representations (a), (c) and (d) were made. In response to representation (b), the defendants accepted there was a representation that the loan was primarily for the benefit of Mark and Michelle, but in addition that Anne's remaining mortgage and debts were going to be amalgamated into and discharged with the facility. Otherwise the defendants denied the making of representation (b). As to representation (e), the defendants pleaded that the representation was that the risk to the Fernmount land would be mitigated by Mark and Michelle selling their own assets first, if the guarantee was called upon, and by their having insurance, but they otherwise denied (e).
72. FAD par 32A
Tanya then made a number of allegations concerning the Caban's farm representations [73] , each of which was denied by the defendants [74] . Those allegations were that Tanya relied upon the Caban's farm representations and did not take any further steps to investigate the nature of the security over the Fernmount land. Tanya was not informed that the guarantee given by Anne was secured by way of a mortgage over the Fernmount land. Tanya was not informed that the loan to Mark and Michelle included the discharge of the mortgage of $40,000 granted by Anne. In the circumstances, Tanya had not consented to her interest in Russell's estate being encumbered, or Anne using Tanya's entitlement to Russell's estate for the benefit of Mark and Michelle, or at all, or to Mark and Michelle using Tanya's entitlement in Russell's estate for the benefit of Anne, or at all. Tanya suffered a detriment in relying on the Caban's farm representations in that the Fernmount land became subject to a mortgage, and Tanya's interest in the Fernmount land was used to secure a loan to Mark and Michelle. In the circumstances, Anne, Mark and Michelle acted unconscionably in securing the encumbrance over the Fernmount land. Further, Anne acted unconscionably in preferring the interests of herself and Mark and Michelle over the interests of Tanya. Anne, Mark and Michelle are bound to indemnify Tanya against any loss suffered by her; or are liable to pay equitable compensation to Tanya caused by reason of the diminution of funds available to her on the completion of the administration of Russell's estate, and on the basis that it would be unconscionable for Tanya to bear any liability for the indebtedness of Mark and Michelle.
73. FASOC pars 32B to 32I
74. FAD pars 32B to 32I
Tanya then turned her attention to a different mortgage granted by Anne over the Fernmount land, this time in respect of the acquisition by Mark and Michelle of a different dairy farm known as "Taylor's Farm".
Tanya pleaded [75] that, on 30 January 2006, in further breach of her duties to Tanya and the estate, and without the knowledge of Tanya and without obtaining Tanya's consent, Anne gave a guarantee in the amount of $1,250,000 for a loan to Mark and Michelle, secured by the granting of a registered mortgage over the Fernmount land, to purchase Taylor's Farm, and to develop Mark and Michelle's dairying interests. The defendants responded to this allegation [76] by pleading that, from the end of October 2005, Tanya was made fully aware by Anne, Mark and Michelle of the proposal to use the Fernmount land as collateral security for the purchase of Taylor's Farm, and that proposal was the subject of extensive discussions between Tanya and all of the defendants. Those discussions involved the possibility of purchasing Taylor's Farm, the nature and extent of any finance to be obtained, the possibility of securing any finance against the Fernmount land, and Tanya and Louise expressly agreed and consented. It was agreed that, if there was any risk of Mark and Michelle not being able to service their finance responsibilities, then Taylor's Farm would be sold. Tanya did not set or insist upon any other terms when providing her consent. Tanya encouraged Mark and Michelle to carry out the proposal.
75. FASOC par 33
76. FAD par 33
The defendants responded further to this allegation by Tanya [77] by alleging that Tanya was fully informed during meetings and conversations, that she gave her consent, that she had acquiesced, that she was estopped, that she had waived her rights, that they were statute barred, and that Tanya was disentitled to relief by reason of her laches.
77. FAD par 34
Tanya then alleged a further set of representations concerning the circumstances in which the Fernmount land was mortgaged to support the purchase of Taylor's Farm by Mark and Michelle. Tanya alleged [78] :
78. FASOC par 33A

From late 2005 onwards the first, second, and third defendants represented to the plaintiff: –

(a) that the indebtedness of the second and third defendants was a business loan to the second and third defendants secured over the land at Taylor's Farm;

(b) that the loan was obtained for the sole benefit of the second and third defendants;

(d) that the first defendant was a personal guarantor for the indebtedness of the second and third defendants;

(e) that the second and third defendants would cause the dairy business to be sold before the guarantee by the first defendant was called on; and

(f) that the Fernmount land was not at risk of being sold pursuant to the guarantee because the second and third defendants would ensure that the Fernmount land was protected by using their own assets to satisfy any call on the guarantee.

I will call these representations the ‘Taylor’s Farm representations’.
The particulars given by Tanya of the Taylor's Farm representations were that they were oral and made from late 2005 to early 2006 in discussions between Tanya and Mark over the phone and in person.
The defendants responded to this allegation by Tanya as to the making of the Taylor's Farm representations by pleading [79] that representation (a) was made, but it was further represented that the purpose of the loan was also to refinance the remaining finance that had been taken out to secure the Caban's farm business. The defendants admitted representation (b) but added that it was also represented to Tanya that Mark and Michelle would be paying the outgoings of Anne. The defendants admitted representations (d) and (e) but denied representation (c). In response to the allegation of representation (f), the defendants said that the representation was that the risk to the Fernmount land would be mitigated by Mark and Michelle selling their own assets first, if the guarantee was called upon, and by having their insurance. Otherwise they denied representation (f).
79. FAD par 34A
Tanya then made a series of allegations based upon the Taylor's Farm representations, [80] each of which was, subject to one exception, denied by the defendants [81] . Those allegations were that Tanya relied upon the Taylor's Farm representations and did not take any further steps to investigate the nature of the security over the Fernmount land. Tanya was not informed that the guarantee was secured by way of mortgage over the Fernmount land in addition to a mortgage over Taylor's Farm, that the terms of the mortgage included a redraw facility, or that the amount guaranteed was $1,250,000. In the circumstances, Tanya had not consented to her interest in Russell's estate being encumbered, or Anne applying her entitlement in Russell's estate for the benefit of Mark and Michelle, or at all. Further, Tanya suffered a detriment in relying upon the Taylor's Farm representations in that the Fernmount land became subject to a further mortgage and her interest in the Fernmount land was used to secure the loan to Mark and Michelle. In the circumstances, Anne acted unconscionably in preferring the interests of herself and Mark and Michelle over the interests of Tanya. Further, Anne, Mark and Michelle acted unconscionably in granting the guarantee and securing the encumbrance over the Fernmount land. Anne, Mark and Michelle are bound to indemnify Tanya against any loss suffered by her, or liable to pay equitable compensation to Tanya caused by reason of any diminution of funds available to Tanya on the completion of the administration of Russell's estate, and on the basis that it would be unconscionable for Tanya to bear any liability for the indebtedness of Mark and Michelle and the guarantee given by Anne. The exception to the defendants' denial of Tanya's allegations was that [82] the defendants did not deny Tanya's allegation that she was not informed that the terms of the mortgage included a redraw facility. The defendants did not admit that allegation either, as they did not claim to have a relevant recollection.
80. FASOC pars 33B to 33H
81. FAD pars 34B to 34H
82. FAD par 34C
Tanya then pleaded further allegations concerning an increase in the amount of the Taylor's Farm loan secured by a mortgage over the Fernmount land.
Tanya pleaded [83] that, in about December 2013, in further breach of her duties to Tanya and the estate, without the knowledge of Tanya and without obtaining Tanya's consent, Anne gave a guarantee for $1,310,000 of a debt owed by Mark and Michelle secured by an encumbrance on the Fernmount Land, for the renovation of and to have erected improvements on the land owned by Mark and Michelle, to the detriment of Tanya. The defendants responded [84] by denying the allegations and by pleading as follows. For 12 to 18 months prior to the mortgage, Tanya was made aware of the proposal. The use of the Fernmount land as security was the subject of extensive discussions at meetings on the telephone and in person between Tanya and the defendants. Tanya and Mark specifically discussed the serviceability of the increased finance required for the new dairy building, when measured against the anticipated improvement in Mark and Michelle's business productivity, as anticipated after the construction of the new dairy. Tanya consented to and encouraged the use of the Fernmount land for the purpose. Tanya visited the land owned by Mark and Michelle during the period in which renovations to the improvements on the property occurred and had knowledge of how the additional finance was being applied.
83. FASOC par 34
84. FAD par 35
The defendants responded further [85] by repeating their claim that Tanya was fully informed of the proposed transaction, that Tanya participated in meetings and conversations at which the transaction was proposed, that she consented, despite having full knowledge she acquiesced, that she was estopped, that she has waived her right to any remedy, and that her claim to relief is barred by laches.
85. FAD par 36
Tanya pleaded [86] that Anne, Mark and Michelle did not inform Tanya that the guarantee was extended from $1,250,000 to $1,310,000, and that the renovation and improvement of Taylor's farm was funded by the extension of Anne's guarantee.
86. FASOC par 34A

The defendants responded [87] to this allegation by admitting the fact of the increase in the guarantee and repeating their responses to pars 35 and 36 of the FASOC.
87. FAD par 36A
Tanya then alleged [88] that Anne, Mark and Michelle did not inform her that the guarantee by Anne was further extended between 18 August 2007 and 21 March 2015 from $1,250,000 to $1,609,000, by 15 separate transactions for specified purposes connected with the operation of Mark and Michelle’s properties. The defendants responded [89] to this allegation by admitting the facts of the increases in the guarantee. They said that the increases referred to in FASOC par 34(e) to (g) were temporary limit increases and repaid in accordance with their terms. The defendants alleged that Tanya consented to the guarantee without any limitation on the value of the loan or the guarantee. The defendants informed Tanya from time to time that the loan had been varied but not the specifics of those variations. Tanya took no steps to enquire about or oppose those variations. Accordingly, Tanya is estopped from claiming contribution or equitable damages. Further, Tanya has waived any right to contribution or equitable damages. Alternatively, Tanya’s claim is barred by laches. Finally, the defendants pleaded that Tanya’s claims in FASOC par (a) to (i) are statute barred. The increase in the guarantee referred to in (i) occurred on 5 February 2013.
88. FASOC par 34AA
89. FAD par 36AA
Tanya made a series of allegations [90] concerning the consequences of the increases in the guarantee, all of which were denied [91] by the defendants. Tanya pleaded that she continued to rely upon the Taylor’s Farm representations. In reliance on those representations, she did not take any further steps to investigate the nature of the security over the Fernmount land until about October 2015, when requests for an accounting were refused by Anne. In the circumstances, Tanya has not consented to her interest in Russell’s estate being encumbered, or Anne applying Tanya’s entitlement in Russell’s estate for the benefit of Mark and Michelle, or at all. Tanya suffered a detriment in relying on the representations in that the Fernmount land became subject to a further mortgage and her interest in the Fernmount land was used to secure the loan to Mark and Michelle. Anne, Mark and Michelle acted unconscionably in granting the guarantee and securing the encumbrance over the Fernmount land. Anne acted unconscionably in preferring the interests of herself and Mark and Michelle over the interests of Tanya. Anne, Mark and Michelle are bound to indemnify Tanya against any loss suffered by her, or are liable to pay equitable compensation for loss or damage to Tanya caused by reason of the diminution of funds available to her on the completion of the administration of Russell’s estate, and on the basis that it would be unconscionable for her to bear any liability for the indebtedness of Mark and Michelle and the guarantee given by Anne. Anne is bound to indemnify Tanya against any loss suffered by her caused by the wilful default of Anne in relation to the mortgage and guarantee over the Fernmount land.
90. FASOC pars 34B to 34I
91. FAD pars 36B to 36H

Tanya’s joint venture claim

Tanya pleaded a claim arising out of an agreement between Tanya and Louise, with the consent and cooperation of the other defendants, to jointly develop part of the Fernmount land to erect ecologically sustainable accommodation and facilities (the joint venture agreement).
In relation to the joint venture agreement, Tanya pleaded [92] a number of matters, all of which were denied [93] by the defendants. Tanya alleged that the joint venture agreement was made in about March 2008 between Tanya and Louise. It was made by oral agreements between Tanya and the defendants between about 21 to 24 March 2008 (the Easter 2008 meeting), and Tanya and Louise shortly before 21 March 2008 and shortly after 24 March 2008. The joint venture agreement was subsequently recorded in several written documents listed in the particulars to FASOC par 37AA.
92. AFSOC pars 37, 37AA, 37A, 37B and 40
93. FAD pars 39 to 40
The joint venture agreement contained the following express terms:

(a) the plaintiff and the fourth defendant would benefit from any increase in the value of the Fernmount land resulting from the approval of the Development Application;

(b) the joint venture agreement was to equalise the use of the property the second defendant had enjoyed and the benefit the second defendant had received in building his business and purchasing Taylor's Farm;

(d) a trust structure would be established to protect the interests of all parties after the DA had been approved.

Tanya alleged that Anne and Mark consented to the joint venture agreement and to the express terms that were pleaded.
The steps allegedly taken by Tanya in pursuit of the joint venture were then set out [94] .
94. FASOC par 38
The defendants pleaded [95] that they do not know and cannot admit Tanya's allegation [96] that, on 29 April 2008, Tanya and an identified town planner attended the Fernmount land to discuss development options with Anne.
95. FAD par 40
96. FASOC par 40
The defendants admitted [97] Tanya's allegation [98] that, on 8 September 2008, Tanya and Louise registered the business name "Perry Eco Developments" as the proprietors of the business.
97. FAD par 43
98. FASOC 41
The defendants admitted [99] Tanya's allegation [100] that Tanya prepared a business plan for Perry Eco Developments for the construction of ecologically responsible holiday units and a conference centre to be erected on the Fernmount land.
99. FAD par 43
100. FASOC par 41
The defendants admitted [101] Tanya's allegation [102] that, from 2008 to 2010, Tanya and Louise prepared and lodged a development application with the local council. The defendants further said that they also contributed to the lodging of the development application.
101. FAD par 45
102. FASOC par 43
Tanya's allegation [103] that, on 9 December 2010, the development application was approved by the local council with an operational date of 28 March 2011 was admitted [104] by the defendants.
103. FASOC par 44
104. FAD par 46
The defendants also admitted [105] the allegation [106] by Tanya that the development consent was to lapse on 28 March 2016, unless building work commenced in accordance with the development application.
105. FAD par 50
106. FASOC par 48
Tanya then alleged [107] that she undertook the necessary demolition and building work on the Fernmount land at her own expense, prior to 28 March 2016, to ensure compliance with the development approval. In response, the defendants denied [108] that demolition and building work was done at Tanya's own expense, insofar as the work took place prior to the development consent. They said that while Tanya made some financial contribution to this work, financial contributions were also made by Anne, Mark and Michelle. Further, the employees of Mark and Michelle were used in relation to the work together with Mark and Michelle's equipment. Otherwise, the defendants admitted the allegations.
107. FASOC par 49
108. FAD par 51
The defendants admitted [109] Tanya's allegation [110] that Tanya took the necessary steps at her own expense to ensure that the development approval was substantially commenced and therefore recognised by the local council as attaching to the land.
109. FAD par 52
110. FASOC par 50
Tanya then alleged [111] that, but for the work done and the expenses incurred by Tanya in securing substantial commencement, the development approval would have lapsed. The defendants admitted [112] this allegation, and said that, but for the work done and the expenses incurred by the defendants as well, the development approval would have lapsed.
111. FASOC par 49A
112. FAD par 52A
The defendants denied [113] the allegation made by Tanya [114] that the registration of the development application on the title of the Fernmount land has materially increased the value of that land.
113. FAD par 53
114. FASOC par 51
Tanya alleged [115] that the Fernmount land was worth, at 1 January 2018, $1,375,000 without the development approval and $1,725,000 with the development approval.
115. FASOC par 50
Tanya then made a series of allegations [116] , all of which bar one were denied [117] by the defendants. Tanya's allegations are that she undertook approximately 80% of the work and spent approximately 40% of the funds required to obtain the development approval. The increase in the value of the Fernmount land which is attributable to the development approval is $350,000, or otherwise as determined on sale of the Fernmount land. In the circumstances, it would be unconscionable for Anne and Mark to assert a beneficial interest in the increased value beyond their own expenditure in support of the joint venture agreement. It would be unconscionable for Louise to assert a beneficial interest in the increase in value beyond her own expenditure, given the work done by Tanya and Tanya's securing the substantial commencement of the development approval. Tanya alleged that, in the circumstances, Anne holds the Fernmount land subject to a constructive trust, so that Tanya is entitled to an interest in the increase in value reflective of her time and effort, which is substantially more than half of the value of the increase. Anne, Mark and Michelle are liable to indemnify Tanya against any loss caused to her by reason of any diminution of funds available to her in satisfaction of her entitlement to a proportion of the increase in value caused by the development approval, on the basis that it would be unconscionable for her to bear any liability for the indebtedness of Mark and Michelle and the guarantee given by Anne.
116. FASOC pars 50B be to 50G
117. FAD pars 50B to 50G (the defendants have not directly responded to FASOC par 50G)
The defendants responded to the whole of the FASOC by pleading [118] :
118. FAD par 57

The Defendants further say in response to the whole of the Further Amended Statement of Claim that to the extent that the contributions of the Plaintiff are to be taken into account in determining her entitlements, including but not limited to the alleged contributions relating to the development application, the contributions of the Defendants to the value and maintenance of the Fernmount property and to the procurement of the Development Application should also be taken into account in determining the entitlements of all parties including the Plaintiff.

Some preliminary observations concerning issues of fact

An obvious feature of the present case is that the events that are relevant have occurred over a period spanning some 45 years.
Few of the issues arise out of individual events that occurred during this period. The administration of Russell's estate during the collective minority of the children spanned 23 September 1975 to 14 June 1992, when Louise attained her majority. That is a period of about 17 years. Thereafter, during all of the children's majority, Anne has administered Russell's estate for a further 28 years or so. Many events relevant to the use and improvement of the Fernmount land occurred on numerous occasions throughout this period. The Fernmount land representations are said to have been repeated on numerous occasions over the years. The family deal developed and evolved over the same period.
In relation to the Pony Paddocks claim, Tanya relies, as will be seen, on her recollection of comments made by her grandfather when Tanya was about five years old. As noted above, Anne received the Pony Paddocks proceeds in seven payments between 1981 and 1987.
Tanya alleged that she made contributions to mortgage payments between 1990 and 1994, and that she contributed funds to renovate the cottage on the Fernmount land in 1996 and 1997. Anne claims that she made very substantial improvements to the Fernmount land on many occasions during the minority of her children. Mark and Michelle claim that they made improvements to the Fernmount land regularly and continuously from even before the time that Mark left school at the age of 14 years.
Tanya's claim that Anne breached her duty as administrator by encumbering the Fernmount land with mortgages relied upon conduct that commenced in 2002 and continued from that time, with additional relevant events in 2004 and from 2015 onwards. The Caban’s farm representations were alleged to have been made from late 2002 until around Easter 2003. The Taylor's Farm representations were alleged to have been made from late 2005 to early 2006.
Even the joint venture agreement concerning the eco-tourism lodge development was alleged to have been made in about March 2008, and significant events relevant to the variation of the proposal occurred at different dates after that time.
This case raises acutely the problem that occurs with many family disputes that have percolated through the decades, where there are serious practical limitations on the quality of the evidence that the parties are able to give, and consequently the nature and precision of the findings of fact that can be safely made by the Court.
As Emmett J (as his Honour then was) said in Warner v Hung, in the matter of Bellpac Pty Ltd (recs and mgrs apptd) (in liq) (No 2) [119] :
119. [2011] FCA 1123; (2011) 297 ALR 56, at [48]

[48] Under s 140(2) of the Evidence Act 1995 (Cth) (the Evidence Act), the court must, in deciding whether it is satisfied that a case has been proved to the requisite standard, take into account:

• the nature of the cause of action or defence;

• the nature of the subject matter of the proceeding; and

• the gravity of the matters alleged.

When proof of any fact is required, the court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361–2).

See also to similar effect Neale v Bank of Western Australia [120] .
120. [2014] NSWSC 315 per Hammerschlag J at [198]
This is a significant consideration in this matter, as much of the cases of all of the parties depend upon their assertions as to what was said by themselves and others in the relatively distant past. As McLelland CJ in Eq famously said in Watson v Foxman [121] (in the context of whether alleged statements were misleading and deceptive):
121. (1995) 49 NSWLR 315 at 318-319

… Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court “must feel an actual persuasion of its occurrence or existence”. Such satisfaction is “not … attained or established independently of the nature and consequence of the fact or facts to be proved” including the “seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”: Helton v Allen (1940) 63 CLR 691 at 712.

His Honour was concerned with the reliability of evidence of a relatively small number of statements claimed by a party to have been made orally a considerable time before the hearing. The forensic problem that his Honour addressed may be compounded by orders of magnitude when, in reality, what the witnesses are attempting to do is to give evidence of a distillation of the effect of numerous conversations made in a family or social context, long in the past and over a considerable period, between a number of people, not all of whom may have been present and participated in all of the conversations. As I have said previously in a similar context in Spink v Flourentzou [122] :
122. [2019] NSWSC 256; affirmed Flourentzou v Spink [2019] NSWCA 315

[181] The problem that McLelland CJ in Eq so perceptively explained is amplified where the reality is that the same subject was discussed frequently by the members of a family, at a time of family unity, in different locations where, as the evidence shows was true in the present case, the parties were initially reluctant to make the arrangement, but persuaded themselves over time that it was safe and prudent for them to do so. It is almost certain that the proposal was put in different ways by the different parties using different words over the period, and that the proposal may have evolved in its substance and in the way that it was described by the participants. The participants were not contemplating making a clear, formal agreement that would be enforceable at law. It is likely that the participants used expressions intending those words to have a particular meaning and assuming that the others participating understood the intended meaning.

[182] In these circumstances, the Court is presented with limited and distilled evidence from the perspective of the individual witnesses which is said to have given rise to an arrangement, whether that alleged in the paragraphs of the statement of claim, or that which is implied in the defence.

In these circumstances, the following considerations, as stated by Hallen J in Evans v Braddock [123] , accepted by Sackar J in Campbell v Campbell [124] , and by myself in Meshumar v Otmy,[125] apply:
123. [2015] NSWSC 249
124. [2015] NSWSC 784 at [76]
125. (2018) 97 NSWLR 615; [2018] NSWSC 125 at [41]

[74] A court, in cases involving events which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200, per Jagot J, at [1247]. Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4][2010] WASC 160, per Kenneth Martin J, at [157].

…

[76] The circumstances of this case, make what was written by Tamberlin J in Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben’s of Australia) (Federal Court of Australia, Tamberlin J, 29 June 1995, unrep), at 122–123 (in a passage cited with approval by the High Court when it upheld his Honour’s decision: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15 ; (1999) 161 ALR 599, at [15]) appropriate to remember:

Price paid $1,750,000. “The fact that it has a DA for cabins had no impact on their decision to buy the property, it was location and proximity to family to visit the kids and grandkids”.

Highest offer of $1,740,000: "They were not looking to pursue development of the DA".

Highest offer of $1,705,071: "They had no interest in development of the DA, the attraction to the property was the location and confidence in the region."

Highest offer of $1,300,000: "Was not interested in development of the DA".

The principal significance of the statement of agreed facts is that the ultimate purchasers were uninterested in the existence of the development approval. None of the under-bidders were interested in the development approval. Even accepting that there may have been impediments to the sales process over the 12-month period in which the specialist resort broker was the exclusive agent for the sale of the Fernmount land, no offers were made for the purchase of the property.
Tanya submitted to the Court an affidavit of her solicitor, Guy Moloney, sworn on 27 July 2021, which contained evidence of a discussion between Mr Moloney and a Mr Wheaton on 19 May 2021. Mr Wheaton was one of the bidders for the Fernmount land. Mr Wheaton's personal view of the potential for the Fernmount land was: "Simply agricultural and residential," but Mr Wheaton also made some observations as to his own view of whether the existence of the development approval could have influenced other bidders, and as to the possible value of the development approval. Mr Wheaton was recorded as saying: "there is an implicit premium we placed of $200K".
Tanya also placed before the Court an affidavit of Mr Gibbons, the defaulting purchaser, sworn on 13 July 2021, in which Mr Gibbons said: "I understood that if there could be a possible variation to the DA to increase the cottages to 3-bedroom units, I could have perhaps sold some of those units or leased them to sustain the value of having carried out the DA". That understanding is inconsistent with a number of the conditions to the development approval.
Tanya also placed before the Court a number of spreadsheets, one being a document recording inspections presumably prepared by the Ray White agent, and the second apparently a document prepared by Tanya.
The defendants opposed Tanya being permitted to rely upon the two additional affidavits, as Tanya had not applied for or been given leave to reopen her case. The defendants consented to the Court having regard to the Ray White spreadsheet, but not the spreadsheet prepared by Tanya.
The position of the defendants was that the Court should decide the issue of whether the development approval added value to the Fernmount land based upon the statement of agreed facts and the Ray White spreadsheet.
I accept the defendants' submission that the additional affidavits should be disregarded, as Tanya has not been given leave to reopen her case. In any event, the affidavits do not contain any admissible evidence upon which the Court could properly act to attribute a value to the existence of the development approval.
Tanya delivered additional written submissions on 28 July 2021 and the defendants responded on 12 August 2021.
The principal submission made by Tanya was that the Court should decide that the existence of the development approval added $375,000 to the value of the Fernmount land, being the difference between the final sale price of $1,750,000 and the $1,375,000 valuation agreed to by the expert valuers as at January 2018.
I reject that submission. The contract under which the Fernmount land was sold was exchanged more than three years after the January 2018 date of the agreed valuation. The Court can only act upon the agreed valuation being current as of the date that it was given. The Court is entitled to infer that the market value of the Fernmount land would probably have increased over the three-year period. It would be counter to accepted valuation principle for the Court to infer, without any evidence or the benefit of expert opinion, that the increase in value was attributable to the presence of the development approval.
I conclude that Tanya has failed to establish that the existence of the development approval added to the market value of the Fernmount land at the date of its sale.

Estate’s interest in the Fernmount land

As I have explained above, the defendants claimed that Tanya's entitlement is limited to 21% of the unimproved capital value of the Fernmount land.
The defendants' position on this issue is, in substance, that as the original dwelling on the Fernmount land had burnt down, the value of the improvements should not be included in Russell's estate, as they were made and financed by the efforts of Anne and her brothers, and the property was maintained over the years by the efforts of Mark and Michelle, with very little contribution from Tanya and Louise.
To put this issue in context, I refer to the following aspects of the expert valuation evidence tendered by the parties. The defendants' valuation expert was Mr Guest who, in the context of attributing a total value to the Fernmount land of $1,130,000 as at 28 March 2017, valued the improvements at $180,000 [225] . Tanya's expert, Mr King, expressed the opinion that the value of the Fernmount land as at 11 July 2017 was $1,310,000 (excluding the value added by the development application) of which the improvements were valued at $255,000 [226] .
225. Court Book p 2467.
226. Court Book p 2337.
As the Fernmount land eventually sold for a price of $1,750,000 by contract exchanged on 6 April 2021, the value of the improvements may have increased somewhat.
In order to demonstrate my point, I will assume that the value of the improvements at the time of sale was $240,000, which is an escalation of the average of the values adopted by the two valuers.
At 21%, Tanya's share of this adopted value for the improvements on the Fernmount land would only be about $50,000, so this is approximately the value of this issue to the defendants.
As a matter of legal principle, it would not be a simple matter of excluding the improvements from Russell's estate on the basis that the dwelling on the property burnt down shortly after Russell's death, and Anne, and to a lesser extent Mark and Michelle, were responsible for building and maintaining the improvements. The reason is that all of the improvements are fixtures and, as such, they became part of the Fernmount land, and so part of Russell's estate.
As the administrator of Russell's estate, Anne may, as a matter of legal principle, be entitled to claim allowances for her expense and effort in improving and maintaining the estate. However, Anne could only realise the benefit of that entitlement by participating in an accounting in respect of the affairs of the estate since the grant of letters of administration to her on 23 September 1975. As explained by the learned editors of Jacobs' Law of Trusts in Australia (8th ed, LexisNexis Butterworths), Anne's real entitlement is to an allowance in the accounting process for her expenditure on improving the trust estate: see Re Walder; Townsend v Walder [227] .
227. (1903) 3 SR (NSW) 375; 20 WN (NSW) 144.
If the Court makes an order for Anne to account for her administration of the estate, she will be able to claim these allowances, but she will also have to account for all receipts and expenses over the last 46 years.
I do not think that the evidence discloses conduct on Anne’s part that precludes her from seeking an account in relation to her administration of Russell’s estate, for the purpose of claiming a special allowance in relation to her conduct and expenditure in improving the value of the Fernmount land. Anne will be given an opportunity to make an election to seek an account. However, the process of accounting is mutual so, if Anne seeks an account she will subject herself to the need to account to the beneficiaries, including Tanya, in respect of some 46 years of transactions in circumstances where it is improbable that she has prepared accounts or retained vouchers that will be necessary for the accounting process to be efficient and cost-effective.

Replacement of administrator

As Russell's estate has now been realised and takes the form of the net proceeds of sale of the Fernmount land held in a solicitor's controlled money account, Tanya's application for a revocation of the grant of letters of administration to Anne and the appointment of a new administrator has been overtaken by events, and is no longer necessary or convenient. It is not warranted that the costs of the replacement of the administrator be imposed upon the estate.
It should be possible for the parties to agree to orders to give effect to these reasons for judgment that will include the steps necessary for the final administration of Russell's estate.
Even if it were appropriate for the Court to make orders that risked squandering the balance of the estate by requiring the parties to engage in an accounting process, the proper participants in the taking of accounts would be the parties themselves, and there would be no necessary role for a replacement administrator.
Consequently, I will not make any orders at this stage for the replacement of Anne as the administrator of Russell's estate.

Summary of conclusions

As a result of the circumstances in which these reasons for judgment have been prepared, it has happened that the issues have been considered in a somewhat episodic way and it has been a challenge to deal with all of the issues coherently.
I will require the parties to consider these reasons and to submit draft short minutes of order to give them effect. I will be open to submissions that the Court has not sufficiently dealt with issues that are essential for determination in order to finally bring these proceedings to a conclusion.
In order to assist the comprehension of these reasons, I will now set out in summary form the principal conclusions that I have reached. I will firstly deal with the relief sought in the proceedings: see the analysis at [34]-[59] above:

The Court will not make orders for the revocation of the grant of letters of administration to Anne or the appointment of a replacement administrator, as the need to do so has been overtaken by events, and the completion of the administration of Russell's estate may be effected by appropriate orders made by the Court.

Tanya is entitled to a declaration that she is entitled to two ninths of Russell's estate.

The estate the subject of Tanya's entitlement will be two ninths of the net sale proceeds of the Fernmount land (subject to the resolution of issues as to costs not yet dealt with), unless Anne pursues her application for an account in order to limit the interest of Russell's estate in the Fernmount land to its unimproved capital value. In that event, Anne will open up the right of all beneficiaries of the estate to require Anne to give a full account of her administration of the estate.

Tanya will be entitled to a declaration that Anne holds the whole of the net proceeds of sale of the Fernmount land on trust, unless Anne elects to institute the accounting process referred to above.

The Court will not now, in the exercise of its discretion, make an order at the suit of Tanya that Anne account to Tanya on a wilful default basis in respect of her use of the Fernmount land and the proceeds of sale of the Pony Paddocks.

Accordingly, the Court will not make any order that Anne pay to Tanya any money found to be due to her as a result of the taking of the account.

The Court will not make an order that Anne indemnify Tanya in respect of the loss of Tanya's share in the proceeds of sale of the Pony Paddocks.

It is no longer necessary for the Court to consider making an order for the sale of the Fernmount land, as that property has been sold by the voluntary act of Anne.

As Anne, Mark and Michelle have taken the steps necessary to cause the guarantee and mortgage over the Fernmount land granted by Anne to be discharged, without any loss to Russell's estate having occurred, there is no utility in the Court making orders that Anne account to Tanya or that Anne, Mark and Michelle indemnify Tanya in respect of the grant of the guarantee and the mortgage.

The Court will not make an order that Mark and Michelle account to Tanya for the profits that they have made as a result of the guarantee and the mortgage over the Fernmount land having been granted by Anne.

The Court will not make any order that Anne holds on trust for Tanya exclusively any portion of the net proceeds of sale of the Fernmount land on the ground that that portion is attributable to the value of the development approval that resulted from Tanya's efforts, as no additional value attributable to the development approval has been established.

The Court will not order that an accounting be undertaken to ascertain the value of Tanya's separate contributions to Russell's estate, and accordingly no such accounting will be undertaken to determine the value of any contributions by Mark and Louise.

I will now set out in summary form the principal conclusions that have been reached that have led to the Court reaching the position set out above concerning the orders sought by Tanya:

On a bare balance of probabilities, I have found that Anne did receive the share of proceeds of the sale of the Pony Paddocks as part of Russell's estate: see [196] above.

Tanya had a definite understanding since the age of five that Russell had an interest in the Pony Paddocks, and the reason that she did not pursue her claim against Anne for her share of the proceeds of sale of the Pony Paddocks was because of her acceptance of the family deal: see [201] above.

Anne was told by the solicitor who acted for her in obtaining letters of administration in respect of Russell's estate that she was entitled to use the children's share of the estate for their education, maintenance and advancement: see [203] above.

Anne spent the proceeds of sale of the Pony Paddocks that she received substantially on renovations to the residence on the Fernmount land, the installation of a pool, the purchase of a caravan to enable the family to go on holidays, and otherwise for the general benefit of the family, including herself: see [220] and [229] above.

Anne used the Fernmount land for most of the duration of the minority of her children as the home of herself and her family, and as a means of carrying on various farming businesses to raise income for the family: see [231] above.

Anne was not authorised by s 44 of the Trustee Act to spend Tanya's share of the proceeds of sale of the Pony Paddocks for the benefit of the family: see [243] and [244] above.

The Court has power on any accounting of Anne's administration of Russell's estate retrospectively to authorise Anne to apply Tanya's share of the proceeds of sale of the Pony Paddocks for the benefit of the family, and the Court should do so, on the principles set out above at [283]. Those principles will only become relevant if the Court ordered Anne to give an account of her administration of the estate.

The question of whether Tanya's claim in respect of the sale proceeds of the Pony Paddocks is statute barred does not depend upon the application of s 47(1)(c) of the Limitation Act because the claim was not to "recover trust property", as the whole of the proceeds of sale of the Pony Paddocks have been expended and do not exist as a fund capable of recovery: see [292] above.

By reason of ss 48 and 52(1) of the Limitation Act, Tanya's claim against Anne for equitable compensation for the expenditure of Tanya's share of the proceeds of sale of the Pony Paddocks was a period of six years that commenced to run three years after Tanya achieved her majority, and accordingly the limitation period has elapsed: see [300] above. The Court's conclusion as to Tanya's claim that the limitation period has not expired because of her reliance on the Fernmount land representations will be referred to below.

In the exercise of the Court's discretion, it will not order Anne to account to Tanya on a wilful default, or any other basis, in respect of the administration of Russell's estate during the period of Tanya's minority, including as to the use of the Fernmount land and the expenditure of the proceeds of sale of the Pony Paddocks: see [315] above. That is primarily because, as a result of the passage of time and the subsistence of the family deal until late 2015, it would be oppressive to require Anne to give a formal accounting in the absence of the availability of records necessary for that process.

The family deal that governed the conduct of the parties until late 2015 had the elements set out above at [338].

It was an implied feature of the family deal that, so long as it was in effect, no member of the Perry family would lose their right to enforce their entitlements to a share in the capital of Russell's estate, but it also had the effect of releasing Anne from liability for failing to administer Russell's estate in a manner that commercially increased its value for the beneficiaries, as well as failing to keep up-to-date accounts and vouchers to support all transactions relating to the estate: see [342] and [344] above.

The family deal operated as a convention between the members of the family as to the uses to which the Fernmount land would be put, which was intended to supplant the strict legal rights that the family members had as beneficiaries of Russell's estate: see [345].

The alleged Fernmount land representations (iii), (iv) and (v) were aspects of the family deal and did not have any separate relevance to these proceedings: see [357] above.

The Fernmount land representations (i) and (ii), to the effect that Tanya was only entitled to a one ninth share of one half of Russell's estate, were made by Anne and acted upon by Tanya: see [365]-[366] above.

Given the existence of the family deal during the whole period of Tanya's majority up to late November 2015, the Court has rejected Tanya's claim that, if she had known the true share in Russell's estate to which she was entitled, Tanya would not have participated in the family deal and would have commenced proceedings within the relevant limitation period to enforce her claims against Anne for maladministration of Russell's estate during her minority: see [373].

Tanya has not established that she is entitled to an order for compensation from Anne in respect of the contributions that she made from time to time concerning the improvement and maintenance of the Fernmount land: see [381]-[382].

Consequently, the claim made by Mark and Michelle to compensation from Anne for their contributions to the improvement and maintenance of the Fernmount land need not be considered, as the claim was contingent on Tanya being permitted to make such a claim: see [382].

As Mark and Michelle took steps during the course of the hearing that caused the guarantee and the mortgage over the Fernmount land that were granted by Anne to secure loans made to Mark and Michelle to be discharged, there is no longer any utility in the Court making an order requiring Anne to account or Anne, Mark and Michelle to indemnify Tanya in respect of the consequences of the guarantee and the mortgage: see [387].

Tanya was entitled to make the demand in her solicitors' 9 November 2015 letter that Mark and Michelle provide a proposal on how they intended to reduce the amount secured by the mortgage over the Fernmount land with a view to ultimately discharging the mortgage: see [442].

The defendants contested Tanya's claim in relation to the guarantee and the mortgage until the time when they voluntarily caused the guarantee and the mortgage to be discharged: see [443].

Tanya has failed to establish that the existence of the development approval added to the market value of the Fernmount land at the date of its sale: see [485] above.

It will be necessary for the Court to make orders to give effect to these reasons after receipt of draft short minutes of order from the parties. Those short minutes of order should provide for a mechanism for the Court to deal with the question of costs, if the parties are unable to agree on that subject.

**********

Endnotes

Decision last updated: 17 December 2021

Medium Neutral Citation:	Perry v Perry [2021] NSWSC 1669
Hearing dates:	15 – 18 October 2018, 1 - 5 June 2019 and 14 April 2020. Final submissions received 18 August 2021.
Decision date:	17 December 2021
Jurisdiction:	Equity
Before:	Robb J
Decision:	See pars [500]-[504]. It will be necessary for the Court to make orders to give effect to these reasons after receipt of draft short minutes of order from the parties. Those short minutes of order should provide for a mechanism for the Court to deal with the question of costs, if the parties are unable to agree on that subject.
Catchwords:	CIVIL PROCEDURE — Probate and administration of estates — Administration suit — Where defendant appointed administrator of intestate estate 45 years ago — Where defendant has not yet finalised administration of estate — Where primary asset in intestate estate was land — Where plaintiff beneficiary alleged defendant has maladministered estate and sought accounting on basis of wilful default — Where evidence fallible and contemporary documents lacking — Where findings of credibility practically not possible — Where Court refused to order accounting unless defendant administrator pursues application for account to limit interest of estate in land to its unimproved capital value CIVIL PROCEDURE — Probate and administration of estates — Administration suit — Where plaintiff beneficiary sought revocation of grant of letters of administration to defendant administrator and appointment of replacement administrator — Where grant made 45 years ago — Where intervening events no longer necessitate orders sought — Where Court refused to make orders sought EQUITY — Trusts and trustees — Powers, duties, rights and liabilities — Power to provide for maintenance and advancement of minor beneficiaries — Where defendant administrator used beneficiaries’ entitlements in estate to provide for their maintenance and advancement during their minority — Where plaintiff beneficiary argued defendant administrator not entitled to do that — Where plaintiff beneficiary attained majority over 20 years ago — Where defendant administrator single parent with limited source of income — Where Court found orders can be made authorising trustee to apply income of trust for maintenance, education and advancement of minor beneficiaries
Legislation Cited:	Administration of Estates Act 1954 (NSW) Evidence Act 1995 (NSW) Interpretation Act 1987 (NSW) Limitation Act 1969 (NSW) Probate and Administration Act 1898 (NSW) Trustee Act 1929 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Andrews v Partington (1791) 3 Bro CC 401; 29 ER 610 Barlow v Grant (1684) 1 Vern 255; 23 ER 451 Brown v Smith (1878) 10 Ch D 377 Campbell v Campbell [2015] NSWSC 784 Caterpillar Financial Australia Ltd v Ovens Nominees Pty Ltd [2011] FCA 677 Clay v Clay (2001) 202 CLR 410; [2001] HCA 9 Countess of Bective v The Federal Commissioner of Taxation (1932) 47 CLR 417 Cubillo v Commonwealth of Australia (No 2) (2000) 103 FCR 1; [2000] FCA 1084 Dark v Dark [2016] NSWSC 1223 Davis v Davis [2014] WASC 395 Department of Health and Community Services (NT) v JWB and SMB (Marion's case) (1992) 175 CLR 218; [1992] HCA 15 Evans v Braddock [2015] NSWSC 249 Ex parte Chambers, in the Matter of Chambers (1829) 1 Russ & M 577; 39 ER 221 Ex parte Green (1820) 1 Jac & W 253; 37 ER 372 Flourentzou v Spink [2019] NSWCA 315 Fountain v Alexander (1982) 150 CLR 615; [1982] HCA 16 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 Hewer v Bryant [1970] 1 QB 357 Hons v Hons [2010] NSWSC 247 Hoste v Pratt [1798] 3 Ves Jun 730; 30 ER 1243 In re Cahill’s Estate (1886) 12 VLR 228 In re Howarth (1873) LR 8 Ch App 415 In re Richards (1931) 31 SR (NSW) 565 In the Estate of Dwyer (decd) (1886) 12 VLR 303 Kerferd v Perpetual Executors and Trustees Association of Australasia Ltd (1893) 19 VLR 700 Maberly v Turton (1808) 14 Ves Jun 499; 33 ER 612 McEvoy v McEvoy (No 2) [2013] NSWSC 1162 Meshumar v Otmy (2018) 97 NSWLR 615; [2018] NSWSC 125 Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78 Neale v Bank of Western Australia [2014] NSWSC 315 Pavlis v Pavlis [2021] NSWSC 1117 Re Application of a Local Health District; Patient Fay [2016] NSWSC 624 Re Moylan (1881) 5 AJR 67 Re Neeson (1869) 6 WW. & aB. Eq. 319 Re Pleash (as joint and several liquidators of Suncoast Restoration Pty Ltd (in liq) [2013] FCA 355; (2013) 93 ACSR 606 Re Walder; Townsend v Walder (1903) 3 SR (NSW) 375; 20 WN (NSW) 144 Reeves v Brymer (1801) 6 Ves Jun 516; 31 ER 1172 Robison v Killey (1862) 30 Beav 520; 54 ER 991 Sherwood v Smith (1801) 6 Ves Jun 454; 31 ER 1141 Singh v Singh [2017] NSWCA 234 Sisson v Shaw (1804) 9 Ves Jun 285; 32 ER 612 Spink v Flourentzou [2019] NSWSC 256 Warner v Hung, in the matter of Bellpac Pty Ltd (recs and mgrs apptd) (in liq) (No 2) [2011] FCA 1123; (2011) 297 ALR 56 Watson v Foxman (1995) 49 NSWLR 315
Texts Cited:	G E Dal Pont and K Mackie, Law of Succession (2nd ed, 2017, LexisNexis Butterworths) J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (8th ed, LexisNexis Butterworths)
Category:	Principal judgment
Parties:	Tanya Lynette Perry (plaintiff) Anne Lynette Perry (first defendant) Mark William Perry (second defendant) Michelle Perry (third defendant) Louise Anne Perry (fourth defendant)
Representation:	Counsel: J Needham SC/ M M Pringle (plaintiff) J Gooley/ R M Higgins (first to fourth defendants) Solicitors: HWL Ebsworth (plaintiff) Reynolds & Reynolds Legal Services (first to fourth defendants)
File Number(s):	2016/336648