Reeves v Reeves

[2024] NSWSC 134

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Reeves v Reeves [2024] NSWSC 134

Hearing dates:

11-15 September, 11-12 October 2023

Date of orders:

26 February 2024

Decision date:

26 February 2024

Jurisdiction:

Equity

Before:

Meek J

Decision:

Will construction and rectification claims dismissed. Estoppel claim succeeds.

Catchwords:

SUCCESSION — Dispute between the plaintiff and the defendant who are the only two children of the deceased, who died in 2021, regarding their entitlements to valuable farming land in Dungog region, which at her death comprised 21 lots — Plaintiff claims that in teenage years the deceased (his mother) and his father (who died in 2005) made initial promises of inheritance of “half of the farm” on which he acted in various ways including forgoing the study of medicine and forgoing an opportunity of postdoctoral studies overseas to remain on the farm and provide assistance in respect of the farming operations which initially involved dairying operations — Subsequent to his father’s death the plaintiff claims the deceased, who ceased dairying operations and leased 13 of the 21 lots and part of another lot (predominantly north of a road dividing the farming property) (the “leased lots”), gave encouragement to the plaintiff to continue work he had engaged in maintaining the leased areas on the promise of receiving the leased lots — Plaintiff continued the work — Deceased made a Will relevantly giving the plaintiff only 2 of the leased lots and the balance of her real property to the defendant — Plaintiff sought relief that the reference by name to the gifted lots should be properly construed as being a reference to most of the lots north of the dividing road — Plaintiff in addition to the construction claim sought rectification of the Will to the above effect — Plaintiff alternatively to the construction claim and rectification claim sought entitlement to the 14 lots by means of an estoppel — Held construction and rectification claims to be dismissed but estoppel claim succeeds

WILLS — Construction — Principles — Discussion of appropriate method for describing landholding — The appropriate method will depend upon various factors including context — Generally use of the words “more particularly described (as)” followed by a distinct title reference, is a useful and appropriate drafting technique to remove doubt about what land is precisely the subject of a gift

SUCCESSION — Wills — Rectification — Whether always necessary to construe document first — Discussion of rectification principles – Consideration of requirements of ‘clerical error’ — Consideration of conjunction ‘because’ in s 27(1) Succession Act 2006 (NSW)

EVIDENCE — Presentation of evidence regarding complex landholdings — Forensic assistance to the Court, and to witnesses, of having a large map version of the deceased’s landholdings to identify the disputed landholding by reference to a single document, so that the evidence of the many witnesses could be comparable and comprehensible by reference to a fixed or standard reference point — Practitioners commended for thoughtful presentation of maps

EVIDENCE — Assessment of evidence of witnesses where estoppel claims based on some conversations in the decade prior to the deceased’s death and some many decades ago — Assessment of evidence of professionals engaged by the deceased including evidence of a solicitor regarding instructions for a will made over a decade prior to the deceased’s death where the solicitor’s electronic file is lost

ESTOPPEL — Estoppel by encouragement — Farming properties — Plaintiff’s case for detriment presented holistically, with all of the elements of forgoing opportunities and work carried out sharing the common thread that the plaintiff (for the most part) remained living and working in or around the family farm secured by the promises that he would inherit, under the initial promises, “half of the farm” and, by the subsequent promises, the “leased lots”

ESTOPPEL — Discussion of issues including whether career choices may constitute detrimental reliance — Discussion of ‘counterfactual case’, significance of countervailing benefits and proportionality of relief — Held choices made by the plaintiff involved life changing decisions with irreversible consequences of a profoundly personal nature, beyond the measure of money — Held relief claimed not “wholly disproportionate” or “out of all proportion” to his detriment

Legislation Cited:

Administration of Justice Act 1982 (UK)

Civil Procedure Act 2005 (NSW)

Conveyancing Act 1919 (NSW)

Evidence Act 1995 (NSW)

Probate and Administration Act 1898 (NSW)

Succession Act 2006 (NSW)

Supreme Court Rules 1970 (NSW)

Supreme Court Rules (Amendment No. 337) 1999 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Alan Wibberley Building Ltd v Insley [1999] 1 WLR 894

Alcan Australia Ltd v Geraghty (Supreme Court (NSW), Young J, 8 October 1993, BC9302153, unrep)

Allgood v Blake (1873) LR 8 Exch 160

Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12

Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560; [2014] HCA 14

Bear v Bear; Jordan v Bear [2022] NSWSC 1687

Bell v Georgiou [2002] EWHC 1080 (Ch); [2002] WTLR 1105

Blacket v Barnett [2017] NSWSC 1032

Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304

Carrington v Wallace [2019] NSWSC 1301

Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39

Coorey v George (Supreme Court (NSW), Powell J, 27 February 1986, BC8601222, unrep)

D Capital 2 Pty Ltd v Western [2022] NSWSC 1064; (2022) 20 BPR 42,919

Daniel v Athans [2022] NSWSC 1712

De Lorenzo v De Lorenzo (2020) 104 NSWLR 155; [2020] NSWCA 351

Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84

Dillwyn v Llewelyn (1862) 4 De GF & J 517; 45 ER 1285

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

Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8

Estate of JA Gilmore, deceased [2014] NSWSC 1263

Evans v Evans [2011] NSWCA 92

Fairbairn v Varvaressos (2010) 78 NSWLR 577; [2010] NSWCA 234

Farrelly v Phillips (2017) 128 SASR 502; [2017] SASCFC 111

Fell v Fell (1922) 31 CLR 268; [1922] HCA 55

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

Galaxidis v Galaxidis [2004] NSWCA 111

Gan v Xie [2023] NSWCA 163

Gazzo v Comptroller of Stamps (Vic) (1981) 149 CLR 227; [1981] HCA 73

Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm)

Gillett v Holt [2001] Ch 210

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

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857

Habberfield v Habberfield [2019] EWCA Civ 890

Henry v Henry [2010] UKPC 3; 1 All ER 988

Horn v GA & RG Horn Pty Ltd [2022] NSWSC 1519

Horn v GA & RG Horn Pty Ltd (No 2) [2022] NSWSC 1747

Idoport Pty Ltd v National Australia Bank Ltd (2000) 49 NSWLR 51; [2000] NSWSC 338

IMO Leys [2000] VSC 164

James v Douglas [2016] NSWCA 178

Kaplan v State of Victoria (No 8) [2023] FCA 1092

King v Perpetual Trustee Co (Ltd) (1955) 94 CLR 70; [1955] HCA 70

Kramer v Stone [2023] NSWCA 270

Lewis v Stewart [2018] NSWSC 1186

Lindsay-Owen v Lake [2000] NSWSC 1046

Lockrey v Ferris [2011] NSWSC 179

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42

Marley v Rawlings [2015] AC 129; [2014] UKSC 2

Maxwell v Maxwell [2022] NSWSC 1028

Middleton v Schofield [2022] NSWSC 1454

Moore v Aubusson [2020] NSWSC 1466

Muir v Winn [2009] NSWSC 857

Perpetual Trustee Co Ltd v Wright (1987) 9 NSWLR 18

Perrin v Morgan [1943] AC 399

Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14

Priestley v Priestley [2017] NSWCA 155

Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220

Ramsden v Dyson (1866) LR 1 HL 129

Re Cobcroft [2015] NSWSC 346

Re Will of McCowen [2013] NSWSC 1000; (2013) 9 ASTLR 337

Riva NSW Pty Ltd v Key Nominees Pty Ltd [2023] NSWSC 711

Shymko v Lach [2022] NSWSC 1096

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

Sidle v Queensland Trustees Ltd (1915) 20 CLR 557; [1915] HCA 48

Singh v Singh [2018] NSWCA 30

Soulos v Pagones [2023] NSWCA 243

Sullivan v Sullivan [2006] NSWCA 312

Taylor v Stav Investments Pty Ltd as trustee for the Stav Investments Family Trust (No 2) [2023] NSWCA 322

Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776

Vescio v Bannister (Estate of the late Betty Tait) [2010] NSWSC 1274

Waddell v Waddell [2012] NSWCA 214

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

Wang v Yu (No 2) [2024] NSWSC 4

Warton v Yeo [2015] NSWCA 115

Whittaker v Child Support Registrar [2010] FCA 43

Wild v Meduri [2023] NSWSC 113

Texts Cited:

Carr, Daniel J, “Rectification of testamentary writings in Scotland, England and Wales, and Australia” (2023) 17 J Eq 181

Dal Pont, GE, Interpretation of Testamentary Documents (2019, LexisNexis Butterworths)

Dal Pont, GE, Law of Succession (3rd ed, 2021, LexisNexis)

Heydon, JD, MJ Leeming and PG Turner, Meagher, Gummow and Lehane’s Equity Doctrine & Remedies (5th ed, 2014, LexisNexis Butterworths)

Macquarie Dictionary, online ed

McFarlane, Ben, The Law of Proprietary Estoppel (2nd ed, 2020, Oxford University Press)

Meek J, “Will Construction” (Paper), NSW Bar Association Succession and Elder Law Committee, 22 March 2023

Category:

Principal judgment

Parties:

Russell Robert Reeves (Plaintiff)
Kevin Wayne Reeves (Defendant)

Representation:

Counsel:
C Birtles with J Green (Plaintiff)
S Fendekian with F McNeil (Defendant)

Solicitors:
Mullane & Lindsay Solicitors (Plaintiff)
Doyle Wilson Solicitors (Defendant)

File Number(s):

2022/153417

JUDGMENT

Introduction

1. HIS HONOUR: These proceedings involve a dispute between the plaintiff and the defendant who are the only two children of the late Gloria Dawn Reeves (the deceased), who died on 28 May 2021. The dispute is in relation to their entitlements to valuable farming land at Stroud Hill, approximately 5-7 km north-east of the main town area of Dungog, NSW, though address details variously refer to the location as being both Dungog and Stroud Hill.

2. On 22 October 2010, the deceased executed her last Will (last Will), which gave the majority of the disputed land (which I will describe in more detail below) to the defendant (Kevin Wayne Reeves – but generally referred to and known as “Wayne”).

3. Without intending any disrespect, it is convenient to refer to various of the deceased’s family relations (many of whom bear the common surnames) by reference to their given or familiar family names.

4. Mr Birtles appeared with Mr Green for the plaintiff. Ms Fendekian appeared with Ms McNeil for the defendant. For convenience, I will refer to the submissions on behalf of the plaintiff and the defendant as submissions by Mr Birtles and Ms Fendekian respectively. However, it was evident that throughout the hearing their juniors gave them considerable assistance which should be properly acknowledged.

5. I will cite the evidence in the proceeding by reference to the Court Book (CB), transcript pages and exhibit numbers and cite the submissions by reference to the plaintiff’s opening written submissions (POS), the plaintiff’s closing written submissions (PCS), the defendant’s closing written submissions, which incorporated the defendant’s opening submissions (DCS), and transcript pages.

6. The means by which the plaintiff (Russell Robert Reeves) presses his case to a greater share of the disputed land are through three claims for relief, namely:

1. construction of the last Will (construction claim);

2. rectification of the last Will (rectification claim); and

3. a declaration that the disputed land to which the plaintiff claims to be entitled is held on trust by the executors of the deceased’s estate for the plaintiff based on principles of estoppel (estoppel claim).

7. I have determined that the plaintiff’s construction claim and rectification claim fail but the plaintiff’s estoppel claim succeeds.

8. The plaintiff’s claims, whilst at one level are able to be simply stated, are grounded in a detailed factual history.

9. A significant degree of the history per se is not relevantly disputed. Nonetheless, the parties are at dispute regarding various matters which are said to bear upon the deceased’s intentions regarding what she proposed or wished the plaintiff to inherit at various points during her lifetime and, in particular, in the process of the deceased making her last Will.

10. The factual disputes in this regard, which on the plaintiff’s side are said to underpin his three claims and on the defendant’s side are said to undermine the three claims, focus on expressions used by the deceased and others to describe the disputed land and upon choices made by the plaintiff during his lifetime.

11. The extent of the deceased’s landholdings at the time of her last Will, the ownership of which did not vary in the subsequent 10 to 11 years leading to her death, is not in dispute.

12. By October 2010, the deceased held 21 pieces of land which are identifiable in a number of ways, but for precision are technically described as lots in deposited plans.

13. The case was, to a substantial extent, advanced on both sides on the basis that there was a ‘correct’ form of appellation of the various lots by which (it is contended) the deceased in some way conclusively defined the content of her intentions, whether expressed in forms of testamentary promises or in her last Will. The parties marshalled, both in affidavit and documentary form, a large volume of evidence prehearing directed to descriptions of the disputed land.

14. During the hearing, there was a considerable degree of testing of various witnesses regarding naming and forms of spelling of the disputed land (in whole or part).

15. Broadly speaking, the evidence revealed that the deceased and others, over many decades, used different names and various forms of spelling to refer to the disputed land, both individually and collectively, for different purposes.

16. Often, use of the descriptions was by reference to farms or farming operations. At other times, use of the descriptions was to the land, structures on the land or landmarks. The lots constituting the disputed land were rarely referred to by the deceased, the parties or relevant witnesses in casual or informal settings or engagements by reference to their lot and DP numbers. There is no real dispute that on parts of the disputed land there were relevantly, at various times, ‘farms’ managed in the sense of uses of land by the deceased and her husband for remunerative purposes. Those uses were in the form of dairying and beef cattle operations (farms). As will be explained further below, the two key dairy operations on the family farm were known as “Dingadee Dairy” and “Kennilworth Dairy”. Both of these operations have since ceased.

17. Ultimately, for the purposes of determining the plaintiff’s claims, it is the deceased’s use of names or descriptors, in context, which is relevant for the construction, rectification and estoppel claims. The plaintiff’s understanding of the deceased’s use of names is also relevant for his estoppel claim.

18. Determination of the plaintiff’s claims requires some outlining of the various family relationships, details of deceased’s last Will, her estate and, in particular, her property holding to provide sufficient context for addressing the claims for relief. Much of that material is not disputed per se and I will set that out below.

Family relationships

19. The deceased was born in Stroud, which is to the east of Dungog, in March 1928, and, by the time of her death in May 2021, was aged 93. As a child, she lived with her parents in what is described as the Dingadee area: CB 82[10], 269[70]. The name “Dingadee” is, according to the Geographical Names Register of the Geographical Names Board, of Aboriginal origin: CB 1056.

20. In her early childhood, she lived in a house known as “Dingadee House” on land which is not part of the estate land, but owned by the Hooke family: CB 82[10], 269[70].

21. In 1949, at the age of 21, the deceased married James Clifford Reeves, who is referred to in the evidence as “Jim” or “Jimmy” (I will refer to him as “Jim”). The deceased remained married to Jim for approximately 55 years until his death on 4 February 2005. She did not remarry or form any other relationship after Jim’s death.

22. In February 2021, the deceased was hospitalised, and she remained hospitalised until she passed away: CB 116[211].

23. The plaintiff, the deceased’s first child, was born in August 1951 and is currently aged 72. The defendant was born approximately four and a half years later in March 1956 and is currently aged 67.

24. The plaintiff is a research scientist: CB 81, 126, 212. He holds a Bachelor of Science degree (awarded with honours in 1974) and a Doctor of Philosophy degree in chemistry (awarded in 1978) from the University of Newcastle: CB 86[34]-[35]. He co-founded, and is an employee of, Apace Research Limited (Apace), a not-for-profit scientific research organisation: CB 91[57]. The plaintiff also co-founded, and is the non-executive managing director of, Ethanol Technologies Pty Limited (Ethtec) (CB 106[159], 121[242]) and is a director of Ethanol Technologies Investments Limited (ETI) (Exhibit D3). ETI is the parent company and controlling entity of Ethtec: T 163.27-29; Exhibit D3 page 22.

25. The plaintiff married Barbara Bensley (Barbara) in April 1980 and they remained married until Barbara’s death on 14 August 2016.

26. The plaintiff and Barbara have three children, namely:

1. Stuart, born in April 1981 – now aged 42;

2. Andrew, born in November 1985 – now aged 38; and

3. Angela Funnell (nee Reeves) (Angela), born in April 1991 – now aged 32.

27. Stuart and Andrew referred to the deceased as “mama”.

28. The defendant is a grazier and has always lived and worked on the family farm: CB 259. In 1975 he started studying physics at the University of Newcastle, during which time he stayed in Newcastle and returned to Dungog on weekends to work on the farm. Eventually, the defendant dropped out of university: CB 260[11]. In 2007, he resumed his studies on a part-time basis and in 2014 graduated with a Bachelor of Science degree majoring in physics. Since that time, the defendant has continued to work on the family farm: CB 259[4], 261[16].

29. The defendant has never married and has no children.

30. The deceased was survived by a sister Patricia, who is currently aged approximately 92: CB 147[4], [8]. Patricia’s daughter Karen Hewitt (Ms Hewitt) swore an affidavit in the proceedings on the part of the plaintiff.

Working and professional relationships

31. During their lifetimes, the deceased and Jim were assisted by various workers on the farms, as well as a number of professionals.

32. Without attempting to be exhaustive, I note details of the following workers and professionals having some connection with the deceased:

1. Philip Martin Addison (Mr Addison) – Jim’s and the deceased’s accountant for the period from approximately 1977 to 2005: CB 142[9], 144[20] (I note that in 2005, after the deceased’s death, Mr Addison had nothing to do with the deceased and her accounting work was handed over by Mr Addison to Lynn Jenkins of his office);

2. Gregan John McMahon (Mr McMahon) – Jim’s and the deceased’s solicitor at the firm McMahon & McMahon, who acted for them (although principally for Jim) from approximately the late 1970s through to 2006: CB 161[20];

3. Felix Prentice – a solicitor of the firm W.J. Enright & Prentice (which firm had from 1 July 2005 incorporated McMahon & McMahon: CB 159[8]) – which (specifically Felix or Max Prentice) may have acted in the administration of Jim’s estate: CB 767, 803;

4. Jennifer Blundell – a solicitor of the firm Jennifer Blundell and Associates – who acted for the deceased in relation to various compensation claims against authorities (including RTC, State Rail Authority and Australian Rail Track Commission) in or about 2010: CB 246[18];

5. Paddy Vincent Dillon (Mr Dillon) – a real estate, stock and station agent – whose firm Dillon & Sons Pty Ltd acted for Jim and the deceased for over 30 years up until the services of the firm were terminated by the deceased in January 2014: CB 171[13], 174[33];

1. Ronald James Shepherd (Mr Shepherd) – a grazier who worked on dairy farm properties in the Dungog area and, in particular, worked at Dingadee Dairy from 2001 to 2002 and then Kennilworth Dairy from 2002 to 2006: CB 177[7], 178[11];

2. Beverly Irene Irwin (Ms Irwin) – a retired business proprietor in Dungog who was a friend of the deceased and regularly visited the deceased at her home for afternoon tea throughout the 1970s to 1990s: CB 190[4], [6];

3. James Gordon Alison – a farmer owning land several lots of which adjoin land owned by the deceased: CB 228[2];

4. Andrew James Doyle (Mr Doyle) – a solicitor, being a director of Doyle Wilson Solicitors, who commenced to act for the deceased from in or about June 2010 in relation to the preparation of her last Will: CB 233[7];

5. Andrew Badgery (Mr Badgery) – the deceased’s financial planner who in or about June 2009 referred the deceased to a new accountant John Morgan Gowing: CB 244[4];

6. John Morgan Gowing (Mr Gowing) – the deceased’s accountant, and principal of GowingAdvisory in Muswellbrook, who was engaged by her from about June 2009 and whose firm acted for her up until her death: CB 244[7]. (Until about 2008, the deceased’s accountant was the firm of Addison Watts. She sold her shares in the Dairy Farmers Co-operative and learnt that she would have to pay a considerable amount in tax: CB 264[38]. Following that, the deceased contacted Mr Badgery, who recommended Mr Gowing as a new accountant: CB 264[39]);

7. Wayne Brorson (Mr Brorson) – a valuer, of the firm Brorson Valuations Pty Ltd, who valued property held by Jim for probate purposes (on the instructions of Mr McMahon) consequent upon Jim’s death in 2005 (CB 804-816), and who subsequently provided to Mr Gowing the documents I describe below as the North map and South map; and

8. Lindsay Evan Moxey (Mr Moxey) – a stock and station agent, currently contracted to Elders, who in 2006 had acted as an agent for the deceased to sell her dairy cattle and later arranged for part of the Dingadee property to be agisted to distant relatives of his, and otherwise maintained a close relationship with the deceased: CB 292[2]-[8].

Deceased’s real property and the disputed land

33. The evidence in the proceedings contained numerous descriptions and references to the deceased’s landholding. For reasons which are explicable by the relief sought in the rectification claim, many of the witnesses annexed map documents to their affidavits principally for the purposes of outlining what they contended to be the deceased’s description, or their understanding of the deceased’s description, of her land.

34. That resulted in their being many different map documents in the Court Book materials.

35. Counsel, in their preparation for the hearing of the case, recognised the forensic assistance to the Court, and to the various witnesses, of having a large map version of the deceased’s landholdings.

36. Within a short period of time after the commencement of the hearing, each of the respective counsel handed up, as a form of aide-mémoire, a large-scale (A3 size) coloured map of the deceased’s landholdings. The document handed up by the plaintiff’s counsel was marked as MFI-1, and the document handed up by the defendant’s counsel marked as MFI-2.

37. Counsel and instructing solicitors are to be commended for their assistance to the Court in preparing such diagrams, which facilitated the hearing of the matter and the Court’s and witnesses’ understanding of the various lots referred to during the hearing.

38. Counsel also rightly recognised that, for the sake of simplicity, it is helpful (if not imperative) to identify the disputed landholding by reference to a single document, so that the evidence of the many witnesses could be comparable and comprehensible by reference to a fixed or standard reference point, and everyone was “on the same page”. During the course of the hearing, the vast majority of witnesses who were cross-examined in relation to the deceased’s landholding and naming of land were cross-examined by reference to MFI-2. That is explicable by the fact that the defendant’s counsel cross-examined first and there were more witnesses for the plaintiff than for the defendant.

Various maps of the deceased’s lots

39. As MFI-2 was the principal document to which witnesses were taken, it is convenient to use that document as being the document by reference to which I will describe the deceased’s land. To assist in making these reasons for judgment comprehensible, I will incorporate MFI-2 as an appendix to these reasons for judgment.

40. MFI-2 contains both a table (on the left) and a coloured map diagram (on the right). The table contains contained six columns with the following headings (from left to right): lot; purchase details; source (of purchase details); nickname; source (of nickname); and colour.

41. There are 22 rows of data in the table (under the abovementioned headings). In particular, under the heading “lot”, there are entries which for the most part identify lots of land by reference to lot and DP number. Those entries contain lettering identification from (a)-(v), being 22 entries.

42. Whilst there are 22 rows, there are a few anomalies in the alphabetical identification of lots (a)-(v). Without intending to be exhaustive:

1. row 3 being lot (c) [Lot XX DP XXXXX ] has been included in the table even though it is a lot in fact owned by the plaintiff, and so is not one of the 21 lots owned by the deceased;

2. row 6 contains reference to 2 lots labelled simply as “(f)”;

3. row 14 follows a row in which the lot is lettered (m) but, instead of being lettered (n), is lettered (o), with (n) following (o) in row 15; and

4. row 18 refers to an enclosure permit entitlement which is not a lot owned by the deceased.

43. The detail contained in the table is sourced principally from three affidavits read in the proceedings, being: the plaintiff’s first affidavit; the defendant’s first affidavit; and Mr Gowing’s first affidavit.

44. Insofar as the purchase details of the lots are concerned, there is, as I understood it, no substantial dispute regarding the descriptions contained in that column. Various witnesses were asked about the names recorded in the “nickname” column. The nicknames were inserted for only half (11) of the 22 rows. There is no dispute that the names have been sourced from the affidavit references. However, a number of the witnesses who were questioned about the nicknames did not agree that the relevant lots were known by such nicknames.

45. For the purposes of describing the real property owned by the deceased, the table includes all 21 lots. I propose to refer to the particular lots, for the purposes of addressing the evidence in the proceedings, by reference to the nominated letter in the MFI-2 table, for example “(a)”, “(b)” etc, as a means of identifying the particular lots.

46. For simplicity and ease of reference, I set out the lettering used to identify each of the deceased’s 21 lots in MFI-2 immediately below.

No.	Lot abbreviated name	Lot title reference
Dingadee lots
1	(a)	Lot X DP XXXXX X
2	(b)	Lot XX DP XXXXX X
3	(d)	Lot X DP XXXXX X
4	(e)	Lot X DP XXXXX X
5	(f-4)	Lot X DP XXXXX X
6	(f-5)	Lot X DP XXXXX X
7	(g)	Lot X DP XXXXX X
8	(h)	Lot X DP XXXXX
9	(i)	Lot X DP XXXXX X
10	(j)	Lot X DP XXXXX
Kennilworth lots
11	(k)	Lot X DP XXXXX X
12	(l)	Lot X DP XXXXX X
13	(m)	Lot X DP XXXXX X
14	(n)	Lot XX DP XXXXX X
15	(o)	Lot XX DP XXXXX X
16	(p)	Lot X DP XXXXX X
17	(q)	Lot X DP XXXXX X
(r)	Enclosure permit (see below)
18	(s)	Lot XXX DP XXXXX X
19	(t)	Lot X DP XXXXX X
20	(u)	Lot XXX DP XXXXX X
21	(v)	Lot X DP XXXXX X

Land features

47. There are various features of the deceased’s landholding, and her landholding may be characterised in a number of different ways. A particular feature of the landholding, as is evident from MFI-2 and emerged from the evidence, is that there is (with some minor exceptions) somewhat of a natural division of the deceased’s landholding by reference to a road known as Stroud Hill Road, which runs essentially horizontally from east to west on MFI-2. Lot (o) (being Lot XX/DP XXXXX X) is the one lot which straddles both north and south of Stroud Hill Road. However, with that exception, there are 10 lots held by the deceased which lie entirely north of Stroud Hill Road and 10 lots which lie entirely south of Stroud Hill Road.

48. The 10 lots that lie north of Stroud Hill Road are referenced in MFI-2 as being lots (a), (b) and (d)-(j). For counting purposes, the lot which is lot (f) is in fact two lots (Lots X and X DP XXXXX X) which adjoin one another.

49. The balance of the 21 lots held by the deceased, barring lot (o), lie entirely to the south of Stroud Hill Road. The major portion of lot (o) also lies south of Stroud Hill Road. In the table in MFI-2, those 11 lots are listed as lots (k)-(q) and (s)-(v).

50. The plaintiff and his legal representatives, for the purposes of advancing his case, essentially described the 10 lots north of Stroud Hill Road as being the “Dingadee lots” (CB 37[1]) and the remaining 11 lots, all (essentially) lying south of Stroud Hill Road as being the “Kennilworth lots”. Those two descriptions conveniently group the lots under a descriptor which was not seriously disputed between the parties: CB 271[80], 272[91], 275[110], 276[116]. For convenience, I will adopt the same description.

51. The disputes regarding nomenclature, at least initially, were as follows:

1. the defendant asserted that lots (g), (h), and (i) (see below) were known as “Yates”, as well as “Dingadee”, and that the cottage located on lot (h) was known as “Yates Cottage” or “the cottage”, rather than “Dingadee Cottage”: CB 274[101];

2. the defendant maintained that Kennilworth is spelt “Kenilworth” (i.e. with one “n” rather than two): CB 279-280[138]-[139]; and

3. the defendant asserted that lot (a) (on which the Dingadee Dairy was originally operated) was called “Dinga Dee” by the deceased (i.e. as two words), based on a conversation he had with the deceased in or around 2010: CB 283[167].

52. The land referred to in row (r) in the MFI-2 table identifies land being PLT X in DP XXXXX , which is the subject of Enclosure Permit XXXXX from the NSW Department of Planning, Industry & Environment: CB 1168. The plaintiff describes it as being PLT X in DP XXXXX (CB 85[32(g)], 107[164(h)]), while the defendant and Lachlan Wilson (Mr Wilson, his solicitor in the proceedings) describe it as being of part of Lot X in DP XXXXX XX: CB 276[117], 299[7]. I will refer to it as the “enclosure permit entitlement”.

53. A Crown Land Search was conducted by the defendant’s solicitor (CB 299[5]), which describes the enclosure permit entitlement as being an enclosed road and a “Crown public road through and west of Lot [X] DP [XXXXX XX]”: CB 1168, 1347. It is evident from the map attached to the search that it comprises in fact two small, enclosed road areas, one being “through” lot (q) (Lot X DP XXXXX XX) and the other to the “west” of lot (q) and adjacent to Lot X DP XXXXX X, benefiting lot (q) with the area of 7,359 m²: CB 137[64], 276[117], 277[119], 299[7]-[8], 1169, 1268, 1348.

54. An enclosure permit is an authorisation issued by the Department to an owner of an adjoining property and allows the Crown road to be used for the grazing of stock and fenced into the owner’s private land. The permit, whilst described as a form of “holding” (CB 1168), does not give the person with the benefit of the permit ownership of the Crown road or allow them to restrict access along the Crown road: CB 1255. In fact, it is subject to small annual rent payable annually in advance on 3 October each year, which for the 2021 year was $516: CB 1168, 1281[54], 1347.

55. For that reason, the land subject to the permit is not to be understood as being land forming part of the deceased’s estate (despite the form of the description of real property in the inventory of property). When a property enclosing a Crown road is sold, the enclosure permit remains in force and the new owner of the land is liable for payment of the rent, including any arrears of rent and interest: CB 1255[15], 1345.

56. There are a number of other features which are evident on the map in MFI-2, and are referred to in some of the evidence in the proceedings, that bear mentioning.

57. There is a railway line that runs east to west across the deceased’s land. It runs south of Stroud Hill Road on the east and crosses Stroud Hill Road between lots (k) and (o). North of Stroud Hill Road, it enters the land area owned by the deceased (after winding through other land not owned by the deceased) between lots (j) and (h). It continues through to Monkerai Road (sometimes described by Stuart as Monkerai Creek Road: T 242-243), runs past lot (a), borders lot (e) and continues south effectively around the border of lot (a).

58. Lot (v) is a small lot being the site of the deceased and Jim’s first home (sometimes referred to in the evidence as the “original home” e.g. CB 83[17], 223[99], 1245[46]), and lot (u) is a small lot with the site of the deceased’s second home (sometimes described in the evidence as the deceased’s family home or “Kennilworth Homestead” e.g. CB 82[15], 1266[45]). Those lots, when one looks at MFI-2, are distinct, but appear to be more generally located within the boundary lines of lot (s).

59. On the western side of lot (s) and lot (o), there is a road, being Majors Creek Road, which runs to the north and is effectively perpendicular to Stroud Hill Road. Monkerai Road generally runs along the border of Lot XX DP XXXXX X (the plaintiff’s lot), lot (b), lot (g) and lot (h) to the east and (relevantly) lot (a) and lot (d) to the west. To the far left side of MFI-2 there is another road, Fosterton Road, which, in its northern part, runs north-south in lots (not owned by the deceased) to the west of lots (d) and (a). In its lower reaches, Fosterton Road touches along the border of lots (a) and (f) and eventually intersects with Stroud Hill Road: T 429.28-430.15.

60. Lot (i) is exceedingly small and hard to discern from MFI-2 or MFI-1. Early on in the hearing, it was marked with an X on MFI-1, with the agreement of counsel.

61. For the most part, the lots forming part of the Kennilworth lots were acquired by Jim and/or the deceased from 1956 through to the beginning of the 1970s. The exception was lot (n) which was purchased in 1986.

62. The lots forming part of the Dingadee lots were purchased later than the set of Kennilworth lots (excepting lot (n)). Lots (a) and (f) were purchased in 1979, lots (d) and (e) were purchased in 1980, lot (b) was purchased in 1987, lots (g), (h) and (i) were purchased in 1993 and the final lot (j) was purchased in 2002.

63. Thus, all of the 21 lots had been acquired by 2002.

64. There was some slight dispute on the affidavit evidence regarding the sizing of the various lots. The plaintiff in his first affidavit (sworn 15 August 2022) indicated that the total area of the farm comprising the Dingadee lots and the Kennilworth lots is 788.68 ha: CB 106[161]. That figure was taken from records which the plaintiff had accessed from the NSW Valuer General: CB 136[58]. It is also supported by a reference in the NSW Local Land Services Rates 2001 Tax Invoice: CB 992. Mr Wilson took issue with that sizing figure in his affidavit (affirmed 4 October 2022) and responded to the plaintiff’s calculations: CB 299[7]-300[13]. The plaintiff responded to Mr Wilson’s calculations in a subsequent affidavit (sworn 28 October 2022), in which he explained his calculations and ultimately accepted the figures given by Mr Wilson: CB 136[58]-137[64].

65. There is no issue on the hearing which is vitally dependent on the actual size of each of the lots or their total sizes. For the purposes of the hearing, the parties proceeded on the basis that the areas referred to in the evidence of a valuer, Mark Ellis (Mr Ellis), were accurate, or at least that his evidence appropriately details the size of the areas. On that basis, I note that Mr Ellis indicated that the 10 Dingadee lots comprise an area of approximately 301.13 ha (CB 1251) and the 11 Kennilworth lots comprise an area of 419.137 ha (CB 1252), together being a total of approximately 720 ha.

Valuation of the lots

66. Mr Ellis provided evidence in the proceedings on behalf of the defendant which included a valuation report dated 13 September 2022 (initial valuation report): CB 1247-1365. He provided land descriptions of the various lots in that report: CB 1267-1268.

67. On 24 August 2023, the plaintiff swore an affidavit which was directed to providing additional evidence in relation to the parcels owned by the deceased, including their past use and current occupation, in response to Mr Ellis’ initial valuation report. In that affidavit, he provided a description of the Dingadee lots and the Kennilworth lots: CB 212-224. (His description of the 10 lots as being the Dingadee lots was, for evidentiary purposes, limited to being understood as his contention regarding which lots comprise the Dingadee lots.)

68. On 31 August 2023, Mr Ellis provided a supplementary valuation report addressing observations as to whether he agreed with the plaintiff’s description of the lots and whether the plaintiff’s descriptions changed any of his reasoning or conclusions in his initial valuation report: CB 1241-1246.

69. From approximately early 2007 (T 36.35-39) (with an exception I will refer to below), the deceased leased out three of the Kennilworth lots, namely (k), (l), (m) and part of lot (o) (being that part north of Stroud Hill Road), together with the 10 Dingadee lots.

70. The exception being that one of the “leases” is in fact a “licence”. Specifically, a land use licence agreement, dated 16 November 2013, between the deceased and a company, Baker Family Group Holdings Pty Ltd, as trustee for the Baker Family Unit Trust (Baker Family licence): CB 945-948. The Baker Family licence is in respect of premises described as XX Monkerai Road Main Creek, comprising 420 acres of grazing land and incorporating steel cattle yards and a hay shed, covering lots (h), (j), (b), (g) and the part of lot (o) north of Stroud Hill Road, together with the plaintiff’s Lot XX DP XXXXX X (lot (c) in MFI-2): CB 110[177(i)], 945–948. The Baker Family licence is signed by the deceased and witnessed by the defendant: CB 948.

71. For the purposes of the plaintiff’s claims, the matter proceeded on the basis that the plaintiff’s own land (being lot (c)), which was included in the Baker Family licence by the deceased, was (self-evidently) not included in his claim for what is described as the “leased lots”. Thus, unless otherwise indicated, I will refer to the “leased lots” as being the 10 Dingadee lots plus lots (k), (l) and (m), and part of lot (o): e.g. CB 3[3], 7[36], 37[3], 41-42[36], 1286, 1350. As there were 13 lots and part of another lot, the leased lots were at times during the evidence described as being 14 lots.

72. In light of the plaintiff’s ultimate claims in the proceedings, it is convenient to refer to the three Kennilworth lots which were leased, namely that lots (k) [Lot X DP XXXXX X], (l) [Lot X DP XXXXX X], (m) [Lot X DP XXXXX X] and part of lot (o) [part of Lot XX DP XXXXX X] as being “the Kennilworth leased lots”.

73. Mr Ellis valued the 10 Dingadee lots, which comprise an area of 301.13 ha, at a total amount of $5,420,375 (adopting a rate of $18,000 per hectare): CB 1251.

74. Mr Ellis valued the 11 Kennilworth lots, which comprise an area of 419.137 ha, at a total amount of $5,130,123 (adopting a rate of $12,240 per hectare): CB 1252.

75. Mr Ellis valued the leased lots as well. However, in valuing the leased lots, he did not include the small part of lot (o) which is north of Stroud Hill Road. Thus, the value Mr Ellis gave was for the 13 lots, which he indicated comprised land area of approximately 320.496 ha, being $5,768,925 (adopting a rate of $18,000 per hectare): CB 1252.

66. There was no broad challenge to Mr Ellis’ valuation reports. Rather, there was a very discrete challenge to the value that Mr Ellis attributed to lot (e), being the lot which is bounded to its north, west and south by lot (a) and, to the east, by the railway line.

67. In response to the plaintiff’s statement that lot (e) was effectively landlocked, Mr Ellis indicated in his report that it is unlikely that the land would have potential to be sold in isolation and he considered it to be contiguous with adjoining lots, but nonetheless confirmed his assessment of value at $18,000 per hectare as at September 2022: CB 1242.

68. In response to the plaintiff’s comments more generally, Mr Ellis revised the value that he had attributed to a number of the Dingadee lots in his supplementary valuation report, resulting in a revised value for the 10 Dingadee lots of $4,953,527: CB 1245. Likewise, he revised his value for certain of the Kennilworth lots, resulting in a revised valuation for those 11 lots at $6,309,750: CB 1246.

69. Mr Ellis was cross-examined, and I considered him to be a careful, reliable and truthful witness.

70. The critical part of his cross-examination focused upon lot (e) and its potential use and value. He was cross-examined on the basis that the lot, being bounded on the east by the railway line, has no vehicular access other than what might be obtained by access through lot (a) at some point on the northern, western or southern boundaries of lot (e).

71. Lot (e) is 3.25 ha. Mr Ellis explained that, if the lot was totally isolated with no vehicular access, the value of the lot would represent a constrained value. This would most likely be the value of the lot to an adjoining owner, which would take into account the value of the contiguous lots less some sort of discount to reflect the fact that the transaction would take place “off market”, or “not [be] exposed to the overall market”, because the most likely buyer would be the adjoining owner (which presumably causes the price to have little upward pressure without competition amongst buyers): T 375.

72. If there were access to lot (e), Mr Ellis indicated it would probably sell as a lifestyle lot, by which he meant that the likely use would involve a purchaser building a house on the lot and having a hobby farm or undertaking hobby farm style pursuits on the property: T 376. Mr Ellis indicated that if there were no access to lot (e), the value of the lot would be determined by (or have to take into account) the cost of acquiring a right-of-way over the adjoining property, based on market rates which would be a percentage of the rate per hectare: T 376-377.

73. During the hearing, there were two other diagrams which featured largely in the evidence of Mr Doyle, the solicitor who attended on the deceased for the purpose of making the last Will, and Mr Gowing. Although there are various forms of the diagrams in evidence, Mr Gowing and Mr Doyle were cross-examined by reference to a version of the two diagrams which appear at CB 1028 and 1029 and at pages 26 and 27 of Exhibit P1. The diagrams present as forms of topographical maps that cover the area where the deceased’s property is located. The document at CB 1028 and page 26 of Exhibit P1 identifies, through shading or hatching, the lots held by the deceased south of Stroud Hill Road, and contains handwriting under the map “South of Stroud Hill Road”. I will refer to that map as the “South map”. The document at CB 1029 and page 27 of Exhibit P1 depicts lots held by the deceased, identified through shading or hatching, which are north of Stroud Hill Road and contains under the map handwriting “north of Stroud Hill Road”. I will refer to that map as the “North map”.

74. Colour versions of the North map and South map appear at CB 838-839 (and 1026-1027). They were sourced by Mr Gowing from Mr Brorson, who provided them to Mr Gowing on 22 June 2010: CB 245[14]. The colour versions contain no annotation on the actual maps themselves. The documents which I have described as the North map and South map do, however, contain handwriting. As the maps bear some importance in relation to the Will-making process, I will later in these reasons briefly address the context in which the maps were sourced from Mr Brorson.

Farming operations

85. From the time of the acquisition by Jim and the deceased of the initial Kennilworth lots around the 1960s, the couple operated a dairy farm on Kennilworth. That farm continued in operation through the childhood years of the parties.

86. In March 1979, Jim and the deceased purchased lot (a), on which lot the Dingadee Dairy operated. The plaintiff states (and I accept) that he contributed $26,000 to the purchase price of $80,000 for lot (a).

87. The Dingadee Dairy was operated by a share farmer, Colin Sullivan (Mr Sullivan), under a share farming agreement with Jim and the deceased, by which they received income from the dairy and also from the house on the lot. The plaintiff says, and I accept, that he forwent a share of income from that arrangement at Jim’s request.

88. From about 1990, Stuart commenced helping at the Kennilworth Dairy and doing other farm jobs on the weekend with the plaintiff, Jim and the defendant. According to Stuart, Jim ran the Kennilworth Dairy on what he described as the “Kennilworth property”, which, according to his understanding (T 175), constituted the property held by Jim and/or the deceased on the south side of Stroud Hill Road: CB 182[6], [8]. The “Dingadee property”, to Stuart’s understanding, constituted the landholding on the north side of Stroud Hill Road.

89. In 2001, the share farming agreement with Mr Sullivan for the Dingadee Dairy came to an end, and Jim then engaged workers to run the Dingadee Dairy: CB 105[153], [154].

90. In or about December 2006, the deceased decided to close the Kennilworth Dairy and raise beef cattle instead: CB 111[183]; 138[67], 213[11], 217[48], 263[30]; T 33, 300.35-37.

91. In 2006, the Australian Rail and Track Co-operative (ARTC) made a decision to remove two wooden bridges that connected the farm between land south of the railway line and land north of the railway line. ARTC advised that it was not intending to replace the bridges. The deceased decided that she would not accept this decision and sought compensation against ARTC: CB 264[41]-[42].

92. In about November 2009, Mr Gowing assisted the deceased to reinstate her entitlement to compensation arising from shares she had lost in Dairy Farmers Cooperative Pty Ltd as a result of the milk quota system: CB 247[21].

93. In May 2010, and for some months thereafter, Mr Gowing assisted the deceased in a dispute with Binnie Beef which related to cattle that were on agistment on the deceased’s property: CB 246[20].

94. On 24 July 2010, the deceased received a compensation payment of $300,000, plus payment of her legal expenses, from ARTC as a result of her claim: CB 246[19].

Leasing of lots

95. In 2006, approximately a year after Jim died, the deceased informed the plaintiff that she had decided to lease “the Dingadee paddocks”: CB 109[174]. The deceased indicated that she would contact Mr Dillon to arrange it. It appears from about that time arrangements were made for leasing.

96. Mr Dillon indicates that, in about 2008, approximately three years after Jim died, the deceased contacted him wishing to engage Dillon & Sons to lease some of the Dingadee paddocks: CB 172[21]. It seems to me that the timing of the deceased’s initial contact with Mr Dillon was earlier than that, namely in or about late 2006. However, nothing of substance turns on that.

97. Mr Dillon met with the deceased at her home, sitting at the kitchen table, to discuss her requirements. He took topographical plans of the area with him and showed the plans to the deceased: CB 172[22]. According to Mr Dillon (CB 172[22]):

22. … I showed the plans to Gloria and said words to the effect of:

“What do you want to do?”

Gloria replied:

“Now that the dairy is closed we don’t use the Dingadee paddocks any more. Wayne is running beef cattle of [sic] Kennilworth. I want to lease the Dingadee paddocks”

98. Mr Dillon indicates that he did not ask the deceased to identify the Dingadee paddocks as it was obvious to him, based on his past dealings with the deceased and as a property owner in the area, that she was referring to her land on the north side of Stroud Hill Road: CB 172[23].

99. Mr Dillon indicates that, in her instructions to him, the deceased variously referred to the Dingadee paddocks as (CB 173[24]):

… the Dingadee Dairy paddocks (which I now know to be Lot [X] in DP [XXXXX X], Lot [X] in DP [XXXXX X], Lot [X] in DP [XXXXX X], Lots [X] and [X] in DP [XXXXX X]), Yates’ paddock (which I now know to be Lot [X] in DP [XXXXX X] Lot [X] in DP [XXXXX X] Lot [X] in DP [XXXXX XX][)] or Russell’s paddocks (which I now know to be Lot [XX] and Lot [XX] in DP [XXXXX X]).

100. Mr Dillon attended the deceased at her home on at least five occasions to discuss the leasing of the Dingadee paddocks. Dillon & Sons acted for the deceased in respect of the leasing of the paddocks, however, whilst he has searched the firm’s records, Mr Dillon has not been able to obtain copies of those leases: CB 173[25]-[29].

101. In early 2007, following the closure of the Kennilworth Dairy (in about December 2006), the deceased commenced leasing the 14 lots which I have described as the leased lots: T 36.37-39; cf CB 109-110[174]-[176].

102. The deceased then commenced to use the Kennilworth lots, apart from the four lots which she had leased, in the beef cattle raising operation which was managed by the defendant: CB 111[183].

103. There is little detail regarding those arrangements. The only formal documentation adduced on the hearing regarding the leasing arrangements was:

1. the Baker Family licence for lots (b), (c), (g), (h), (j) and part lot (o): CB 110[177], 945-948; and

2. a lease to Greg Wall and Sally Wall for three years, dated from 1 October 2020 to 30 September 2023Ior lots (d) and (e) and part of lot (a) (Wall lease): CB 110[177], 970-987.

The plaintiff also referred to an email from Dillon & Sons in respect of a lease of lot (k): CB 110[177].

104. Under the Baker Family licence, the licensee had an obligation to maintain fencing on the property to a suitable standard to accommodate the use: CB 947 [cl 20].

105. Under the Wall lease, the permitted use was agistment of cattle: CB 972. Under the lease, the lessee had obligations (CB 978-979):

1. to manage the land in a proper and husband like manner and preserve and maintain the land in a proper and productive state (cl 10.1.1);

2. to maintain internal fencing on the land in good and substantial repair (cl 10.1.12); and

3. to keep all parts of the land which were cleared at the date of the lease clear of suckers, scrub, saplings, woody weeds and undergrowth (cl 10.1.14).

106. Mr Moxey was unable to precisely identify which lots were leased to Peter Moxey and Diane Moxey (the Moxeys): T 368. The defendant, whilst deferring to what he thought was Mr Moxey’s superior knowledge, gave evidence suggesting that the area leased to the Moxeys was the three lots west of Monkerai Road, being lots (d), (a) and (e), and that the lease was for about six years: T 272.5-44. He intimated that the leased lots were not all leased separately as it was too much hassle to do so: T 281.156-120.

107. As I will set out further below, it is the plaintiff’s case that he spent substantial time and money maintaining the leased lots over a number of years.

Wills

108. Jim made a Will dated 6 December 1950 (CB 399), by which he appointed the deceased as executrix and left his entire estate to her. Consequent upon his death, the deceased sought and obtained probate of that Will.

109. The deceased, so far as the evidence discloses, made three Wills during her lifetime, namely:

1. a Will on 14 January 1966: CB 400;

2. a Will on or about 9 February 2006 (2006 Will): CB 606-607; and

3. her last Will: CB 873-894.

2006 Will

110. A signed version of the deceased’s 2006 Will is not in evidence. However, there was no dispute between the parties as to its contents and it was agreed that the 2006 Will is in accordance with the document contained in the Court Book: T 35.6-13.

111. The deceased, by cl 1 of the 2006 Will, appointed the plaintiff and the defendant to be joint executors and trustees.

112. She gave the whole of her estate upon trust to pay all her just debts, funeral and testamentary expenses, and to:

1. transfer to the defendant the houses and land identified in folio identifiers XXX/XXXXX X and X/XXXXX X and two-thirds of her shares in a company known as JC & GD Reeves Kenilworth Pty Ltd (the company);

2. transfer to the plaintiff the remaining one-third of her shares in the company; and

3. hold the residue of her estate for the plaintiff and the defendant in equal shares as tenants in common: CB 606.

Last Will

113. The deceased received advice, from Mr Gowing and Mr Doyle, about incorporating into her Will the terms of what is described as a “Beneficiary Controlled Testamentary Trust” (testamentary trust provisions).

114. The deceased’s last Will is a lengthy document of 21 pages together with a back sheet.

115. I will say more about the content and the structure of the last Will later in these reasons.

116. Leaving aside, for the moment, the dispute arising from the construction and rectification issues and the detail of the testamentary trust provisions, at face value the dispositive provisions of the last Will are relatively straight-forward. The dispositions are summarised in a form of affidavit of executors affirmed by the plaintiff and the defendant on 17 May 2022 and 2 June 2022, respectively (executors’ affidavit), as follows (CB 1081-1082):

1. each of the plaintiff’s three children received a sum of $10,000;

2. the plaintiff received:

1. a trust for property consisting of “Lot [XX] in DP [XXXXX X] [lot (b)] and Lot [X] in DP [XXXXX X] [lot (a)] together with improvements thereon”; and

2. a trust for one-third of the balance of the deceased’s estate;

3. the defendant received:

1. a trust for property consisting of all the livestock, motor vehicles, machinery and plant and equipment owned by the deceased at the date of her death and all the real property owned by the deceased as at the date of her death, apart from that referred to in cl 7.3(a) of the last Will (being the lots gifted to the plaintiff), together with improvements thereon; and

2. a trust for two-thirds of the balance of the deceased’s estate.

Application for probate and appointment of an interim administrator

117. On 10 September 2021, Mr Gowing renounced probate of the last Will.

118. Following correspondence between the parties’ respective solicitors, the parties made a joint application for probate by summons dated 28 June 2022 and signed by Mr Doyle (who, although being the solicitor for the defendant, filed the document on behalf of both parties for the purposes of making the application).

119. The summons was supported by the executors’ affidavit as I have noted.

120. Having regard to the plaintiff’s claims in the proceedings needing to take their course, it became evident to the parties that an interim administrator would be required to assist in the administration of the estate.

121. On 19 December 2022, Katelin Whitley (Ms Whitley), a solicitor based in Singleton, was appointed as interim administrator of the deceased’s estate for the period up to 19 June 2023: CB 1217.

122. The special grant of administration was in essentially a usual form, limiting Ms Whitley’s role to: collecting and preserving the deceased’s assets; paying liabilities of the deceased or her estate incurred in the usual course of business; establishing and operating estate bank accounts; keeping an account of all receipts and disbursements in the administration of the estate; and appointing an accountant to keep estate records and prepare tax returns.

123. The orders of the Court noted the specific agreement of the parties that Ms Whitley, as interim administrator, would be requested to record farm income and all leasing income and expenses relating to the land separately between identified parcels of land which were categorised as being “Russell’s land”, “Kevin’s land” and “the disputed land”: CB 1217-1218.

124. The orders further permitted Ms Whitley to delegate to the defendant the selling of livestock, on the basis that he would advise Ms Whitley and the plaintiff of such sale and identify the number of livestock sold and the proceeds of sale received.

125. The orders also noted an agreement between the parties that an amount of $125,000 would be paid from the estate towards the defendant’s costs in the proceedings. It was further noted that the defendant may apply to the Court at any time to increase the amount of the payment, both parties had liberty to apply to the Court for a different costs order at the conclusion of the proceedings and both parties shall reimburse the estate for any legal costs paid from the estate in the event that a different costs order is ultimately made: CB 1218-1219.

126. The orders made on 19 December 2022 (specifically, Order 4) envisage that Doyle Wilson Solicitors would be acting for the parties as executors in relation to the application for probate: CB 1218.

127. On 2 March 2023, a formal notation was made by Hallen J to the effect that the Court could not admit the deceased’s last Will, in its present form, to probate, until such time as the rectification claim was determined: CB 1223.

128. On that occasion, a formal order was also made pursuant to r 7.10(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that the defendant be appointed to represent the deceased’s estate for the purposes of the proceedings: CB 1224. The appointment of Ms Whitley as interim administrator was also extended until further order of the Court or the issue of the grant of probate of the deceased’s last Will, whichever is the earlier: CB 1224.

129. Further, an order was made that, in addition to the $125,000 earlier paid to the defendant on account of his costs in the proceedings, an amount of $220,000 also be paid from the estate towards the defendant’s costs, on the same terms of there being liberty to either party to apply to the Court for a different costs order at the conclusion of the proceedings: CB 1224.

130. During the hearing, the defendant sought, by notice of motion, further payments of money on account of his costs. I dealt with that application and on 11 October 2023 made the following orders:

1. Orders that the amount of $350,000 be paid out of the estate of the late Gloria Dawn Reeves by the interim administrator to the defendant within 7 days, on the basis that the payment is a form of interim distribution out of the defendant’s entitlement in the estate and, accordingly, the amount of the payment must be taken into account in the ultimate administration of the estate by either the interim administrator or whoever ultimately administers the estate and adjustments accordingly made.

2. Notes the defendant has given a direction to pay to his legal representatives and that the payment will be made to the defendant’s legal representatives trust account.

Estate

131. The parties, in their executors’ affidavit, annexed a form of inventory of property of the deceased’s estate: CB 1087-1089 (see also CB 1053-1055).

132. Whilst nothing of significance turns on it, that initial inventory of property is somewhat incomplete in that it did not include three of the deceased’s lots, being lots (e), (g) and (i).

133. Subsequently, an amended inventory of property was prepared which includes those three lots: CB 126[7], 1164. The amendment was only necessary to include those lots. Both inventories ascribed the same value to the landholding (namely an estimated $10 million). Both inventories include the enclosure permit entitlement as “property” of the deceased.

134. The amended inventory of property may be summarised as follows:

1. land (described as XX Monkerai Road, Stroud Hill – 17 lots; XX Majors Creek Road, Dungog – 3 lots and the enclosure permit entitlement; and XXXX Stroud Hill Road, Stroud Hill – 1 lot) totalling an estimated $10 million;

785. There is no positive requirement for a plaintiff to prove that the relief sought is proportionate, rather the concept of proportionality is a negative principle such that enforcement of the expectation must not be disproportionate: Delaforce at [77] per Handley AJA (Giles JA and Allsop P agreeing); Soulos at [399] per Ward P (Meagher and Mitchelmore JJA agreeing).

786. This approach appears to be in contrast to that which has been taken in the United Kingdom, which places emphasis on the positive operation of proportionality in the doctrine of proprietary estoppel: see Henry v Henry [2010] UKPC 3; 1 All ER 988 at [65] per Sir Jonathan Parker for the Board; Habberfield v Habberfield [2019] EWCA Civ 890 at [56]-[58] per Lewison LJ (Moylan and Rose LJJ agreeing); see generally Professor Ben McFarlane, The Law of Proprietary Estoppel (2nd ed, 2020, Oxford University Press) at [7.123]-[7.136].

787. What amounts to a “life-changing” decision may vary from case to case and it is a guide to determining whether there is significant detriment: Soulos at [382].

788. In Donis, such decisions included the claimant’s decisions to: move into an older home in an area well removed from her family; put her and her husband’s funds into improving the property and defraying mortgage payments; put her own efforts and those of her family into renovating the property; and allow herself to become pregnant and give up teaching sooner than she otherwise would have done: Donis at [33].

789. In Soulos, Ward P identified the claimant’s life-changing decisions as including: his consent to a less favourable settlement of family law proceedings against his ex-wife at the behest of his parents, on the faith of a promise from his parents that they would assist him re-entering the property market; the payment of rent (which covered mortgage repayments); and renovations which were carried out and/or paid for by the claimant: Soulos at [383].

790. In Ashton v Pratt (CA), Bathurst CJ found that the claimant’s alteration of her position in becoming the promisor’s mistress and not returning to the escort business for a period of time was not a life-changing event amounting to any detriment which called for the enforcement of the promise: Ashton v Pratt (CA) at [143].

791. In Waddell v Waddell [2012] NSWCA 214 (Waddell), the claimant worked his family’s farm full-time for almost three decades in the expectation (induced by the promisor, his father) that he would receive a 10 acre portion of the farm. Whilst not adopting the language of Nettle JA in Donis, Campbell JA said to similar effect at [67]:

… That career choice has brought with it the consequences of being without the superannuation and other benefits that an employee would have, and being inhibited in his borrowing capacity.... It has set the course of [the claimant’s] life over decades, in a way that cannot now be unscrambled….

Discussion

792. When one views the nature of the subsequent promises, they were predominantly or essentially in context promises in terms of the leased lots, rather than land north of Stroud Hill Road. The plaintiff’s detrimental reliance in relation to the subsequent promises was in relation to the leased lots.

793. The adjusted values of the Dingadee lots, as per Mr Ellis’ supplementary valuation report, are as follows (CB 1245):

No.	Lot	Land area (ha)	Rate/ha	Equated value
1	(a)	105.2	$18,000	$1,893,600
2	(b)	31.39	$18,000	$565,020
3	(d)	46.94	$16,000	$751,040
4	(e)	3.25	$18,000	$58,500
5	(f-4)	0.2969	$16,000	$4,750
6	(f-5)	0.5291	$16,000	$8,466
7	(g)	5.316	$14,000	$74,424
8	(h)	87.513	$14,000	$1,225,182
9	(j)	20.69	$18,000	$372,420
10	(i)	0.006956	$18,000	$125
Total	301.132	$4,953,527

794. The adjusted values of the Kennilworth lots, as per Mr Ellis’ supplementary valuation report, are as follows (CB 1246):

No.	Lot	Land area (ha)	Rate/ha	Equated value
1	(k)	17.9073	$14,000	$250,702
2	(l)	0.1468	$14,000	$2,055
3	(m)	1.31	$14,000	$18,340
4	(o)	115.3	$18,000	$2,075,400
Sub-total	134.6641	$2,346,497
5	(p)	27.9334	$12,000	$335,201
6	(q)	86.45	$12,000	$1,037,400
7	(s)	102.871	$16,000	$1,645,936
8	(t)	0.1745	$16,000	$2,792
9	(u)	1.0268	$16,000	$16,429
10	(v)	0.6272	$16,000	$10,035
11	(n)	65.39	$14,000	$915,460
Sub-total	284.4729	$3,963,253
Total	419.137	$6,309,750

795. There is limited evidence as to the size of the part of lot (o) which was leased. The only place I can readily locate this information is in Appendix 8 of Mr Ellis’ initial valuation report, which lists the part of the leased lot as being estimated at 3.5 ha: CB 1350.

796. There might perhaps be debate about how a part of a lot should be valued. No submissions or specific evidence was addressed as to how the leased part of lot (o) should be valued. If the part of that lot is given a value of $18,000 per ha, in accordance with the value that Mr Ellis has attributed to the whole of lot (o), then the value of the part of lot (o) which was leased would be $63,000. Even, if the value to be attributed to the part of lot (o) is not $18,000 per ha, it can hardly be suggested that uncertainty about the precise value of 3.5 ha constituting part of lot (o) would make any material difference in relation to the proportionality argument in this case.

797. Based on the above assumption, the value of the leased lots is as follows:

No.	Lot	Land area (ha)	Rate/ha	Equated value
1	(a)	105.2	$18,000	$1,893,600
2	(b)	31.39	$18,000	$565,020
3	(d)	46.94	$16,000	$751,040
4	(e)	3.25	$18,000	$58,500
5	(f-4)	0.2969	$16,000	$4,750
6	(f-5)	0.5291	$16,000	$8,466
7	(g)	5.316	$14,000	$74,424
8	(h)	87.513	$14,000	$1,225,182
9	(j)	20.69	$18,000	$372,420
10	(i)	0.006956	$18,000	$125
11	(k)	17.9073	$14,000	$250,702
12	(l)	0.1468	$14,000	$2,055
13	(m)	1.31	$14,000	$18,340
14	Part (o)	3.5	$18,000	$63,000
Total	323.9961	$5,287,624

798. The land area of the leased lots is (10 Dingadee lots at 301.132 ha + the area of the 3 and a part of the Kennilworth lots at 22.8641 ha =) 323.9961 ha. The value of the leased lots is ($4,953,527 + $334,097 =) $5,287,624.

799. Ms Fendekian submitted that, if the values attributed to the lots in the supplementary valuation report (CB 1245-1246) are applied, the relief sought (being the transfer of all 14 leased lots to the plaintiff) would be land in the value of $7,028,927: DCS [182]. It is not clear to me how that figure is calculated.

800. On the above figures, if the entirety of lot (o) were included, the value of the 10 Dingadee lots ($4,953,527) and the 4 Kennilworth lots ($2,346,497) would be $7,300,024.

801. In any event, Ms Fendekian submitted that such a result is manifestly disproportionate to any detriment even on the plaintiff’s best case: DCS [182].

802. Ms Fendekian submitted that the disproportionality of the relief sought by the plaintiff vis a vis any detriment is reinforced when one has regard to the fact that the deceased has already gifted to the plaintiff real property valued in the amount of $2,458,620 (being lot (a) at $1,893,600 + lot (b) at $565,020, based on the revised figures of Mr Ellis at CB 1245) as per cl 7.3 of the last Will, plus one-third of the residue estate (as per cl 8.3 of the last Will): DCS [184].

803. It seems to me that Ms Fendekian’s submission in this regard does not accord with the applicable legal principles. In Kramer, Ward P re-emphasised that “[t]he authorities on relief for a proprietary estoppel… make clear that the starting point is the prima facie position that the expectation be made good”, and rejected the appellant’s contention that the legacy under the Will would have been sufficient to assuage the deceased’s conscience as it assumed a starting position of asking whether there should be further provision aside from the existing legacy, which approached the issue from the incorrect perspective: Kramer at [243] per Ward P (Leeming and Kirk JJA agreeing).

804. The fact that the deceased gifted lots (a) and (b), totalling $2,458,620, to the plaintiff under the last Will does not to my mind ameliorate or have the effect of extinguishing the plaintiff’s claim to relief to be granted the additional 12 leased lots (including part of lot (o)), totalling $2,829,004.

805. In relation to the plaintiff’s evidence that, between June 1989 and 2006, the plaintiff assisted with the Kennilworth and Dingadee Dairy operations by spending four to five hours per week performing various farming tasks without remuneration (CB 100[123]), he agreed that he spent the bulk of his time during those years with the work of Apace. He indicated that Apace had not been a financial success, but he had had some success in raising the public profile of renewable fuels: T 160.18-46.

806. The plaintiff stated in evidence (limited to his belief) at CB 121:

247. … I believe that the income I would have received from a professional career in medicine would have substantially exceeded the financial compensation I have received from Apace and Ethtec.

248. … I believe that the income I would have received from a professional academic research career relating to medical science would have substantially exceeded the financial compensation I have received from Apace and Ethtec.

807. Further, the plaintiff stated in evidence, which I accept, at CB 121-122:

250. I would not have co-founded the not-for-profit scientific research organisation Apace Research Limited to conduct research and development of renewable energy technologies for the purpose of assisting rural landowners if in 1977 my parents had not promised me that I would inherit one half of the family farm.

808. The plaintiff’s case for detriment was presented holistically, with all of the elements of forgoing opportunities and work carried out sharing the common thread that the plaintiff (for the most part) remained living and working in or around the farm secured by the promises that he would inherit, under the initial promises, “half of the farm” and, by the subsequent promises, the “leased lots”: PCS [222]-[286].

809. I have outlined above my findings in respect of the plaintiff’s case for detrimental reliance regarding:

1. farming tasks the plaintiff carried out principally in respect of the Kennilworth and Dingadee Dairy operations;

2. forgoing educational opportunities;

3. financial contributions and sacrifices;

4. forgoing other opportunities to purchase land elsewhere; and

5. land maintenance and improvement works.

810. It was submitted on behalf of the plaintiff that his detriment is of a kind and extent that involves “life changing decisions with irreversible consequences of a profoundly personal nature”: PCS at [222]; T 417.37-41, 474.29-37.

811. The plaintiff’s career choices to remain in proximity to the farm, his physical and financial assistance which he provided to the family farm operations, the establishment of his family home, the many hundreds of hours he spent on the farms and properties carrying out work, and his work on the leased lots “set the course” of his life over decades “in a way that cannot now be unscrambled”: Waddell at [67].

812. The relevant test has been described in terms of whether final relief of the kind sought by the plaintiff would be “wholly disproportionate” to the detriment suffered or “out of all proportion” to the detriment: Soulos at [402], [407]; Priestley v Priestley at [164].

813. Viewed holistically and taken together, I consider that the choices made by the plaintiff involve life changing decisions with irreversible consequences of a profoundly personal nature, beyond the measure of money. I do not regard the relief he claims as being “wholly disproportionate” or “out of all proportion” to his detriment.

814. My finding in this regard does not depend upon the value to be attributed to the small 3.5 ha area of part of lot (o), which formed part of the leased lots, whether it be $63,000 or otherwise.

Finding as to relief

815. Ultimately, I consider that the plaintiff has made out a case for estoppel in relation to what is the first option, being a claim for the 10 Dingadee lots, as well as the 4 Kennilworth leased lots.

Conclusion

Relief and costs

816. I have determined that the plaintiff’s construction claim and rectification claim fail, but the plaintiff’s estoppel claim succeeds.

817. I find that the plaintiff has made out a case for estoppel in relation to what is the first option, being a claim for the 10 Dingadee lots, as well as the 4 Kennilworth leased lots (i.e. lots (k), (l) and (m), and part of lot (o)). Mr Birtles acknowledged that, in relation to that scenario, there would need to be a practical solution worked out involving subdivision of that part of lot (o) which lies to the north of Stroud Hill Road and was part of the leased area.

818. Costs are in the discretion of the Court, subject to the CPA, rules of Court and any other Act: s 98(1)(a) CPA.

819. The Court:

1. has full power to determine by whom, to whom and to what extent costs are to be paid: s 98(1)(b) CPA; and

2. may order that costs are to be awarded on the ordinary basis or on an indemnity basis: s 98(1)(c) CPA.

820. The general position is that if the Court makes any order as to costs, the Court is to order that the costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs: r 42.1 UCPR.

821. In Horn v GA & RG Horn Pty Ltd (No 2) [2022] NSWSC 1747, I addressed the question of what is a relevant “event” for the purposes of a cost order:

What is an event?

71. Depending on the nature of the litigation the “event” may be characterised in more than one way: Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 (Doppstadt) at [15] per Ward, Emmett, and Gleeson JJA.

72. Generally, the “event” refers to the event of the claim or counterclaim, as the case may be, and may be understood as referring to the practical result of a particular claim: Doppstadt at [15] citing Windsurfing International Link v Petit [1987] AIPC 90–441 at 37,861-37,862 per Waddell J.

73. An “event” may refer to the determination of the proceedings as a whole or of particular causes of action, although not necessarily so. It may include certain disputed questions of fact or law.

74. An event will not necessarily be limited to “issues” in the technical pleading sense, but any disputed question of fact or law: Hughes v Western Australian Cricket Association (Inc) & Ors (1986) ATPR 40–748 at 48,136 per Toohey J citing Cretazzo v Lombardi (1975) 13 SASR 4 at 12 per Hogarth J; Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 at 22 per Young J (as his Honour then was); Australian Receivables Ltd v Tekitu Pty Ltd (subject to deed of company arrangement) (deed administrators appointed) & Ors [2011] NSWSC 1425 at [25] per Ward J (as her Honour then was).

75. How the Court approaches the question will essentially be guided by the circumstances of each given case rather than abstract analysis of how the notion of an event should be viewed.

822. In Taylor v Stav Investments Pty Ltd as trustee for the Stav Investments Family Trust (No 2) [2023] NSWCA 322 at [7], the Court of Appeal referenced its earlier decision in Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38], in which it had summarised the principles governing the making of an order as to costs in dealing with particular issues in proceedings.

823. Where litigation involves multiple issues, the ultimately successful party may have failed on one or a number of those issues. The “event” is not necessarily limited to the final overall outcome, but may aptly apply to individual issues in the proceedings.

824. Broadly speaking, there were three claims brought in the proceedings as I have indicated: a construction claim, a rectification claim and an estoppel claim. I have found against the plaintiff in relation to the construction claim and rectification claim (except as to the minor but inconsequential change of the words “Dinga Dee” to “Dingadee”), but in favour of the plaintiff in relation to the estoppel claim.

825. It is not to be thought that very little time was taken up in the proceedings by the construction claim and rectification claim. There was very considerable evidence addressing the issue of whether there was a correct or predominantly usual means of spelling the names “Dingadee” and “Kennilworth”, as well as addressing how the deceased spelt those names. There was also very considerable focus on evidence from Mr Gowing and Mr Doyle.

826. There was a particular connection between the construction issue and the rectification issue.

827. My provisional view is that potentially one way of addressing costs in this case is to order that the plaintiff pay the defendant’s costs of the construction claim and rectification claim and for the defendant to pay the plaintiff’s costs of the estoppel claim, and to order that the costs of those issues be set off against one another: see for example Wang v Yu (No 2) [2024] NSWSC 4 at [187]-[189], citing Riva NSW Pty Ltd v Key Nominees Pty Ltd [2023] NSWSC 711 at [221]-[224].

828. In expressing that as a provisional view, I am inviting the parties to reflect on the question of how costs ought to be dealt with and to see whether there can be some agreement on the matter. I am not requiring that there be agreement, merely that the parties consider whether costs may be agreed or at least any contested issue in respect of costs is able to be narrowed.

Orders

829. I direct the parties to bring in short minutes of order to give effect to these reasons for judgment and to consider whether an appropriate costs order can be agreed. If no agreement can be reached, I direct the parties to contact my associate to make arrangements for listing to briefly address any contested question of the appropriate substantive orders and costs.

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MFI-2 (345845, pdf)

Amendments

27 February 2024 - [4] - change "McLean" to "McNeil"

22 April 2024 - [364] - change "several" to "civil"

21 August 2024 - Coversheet, [648(4)], [700], [808], [809(4)] - change "foregoing" to "forgoing"

[744] - change "forewent" to "forwent"