Robertson v Robertson

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. S CI 2007 10039

GRANT ANTHONY ROBERTSON	Plaintiff
v
BERNARD BRESLIN SPENCER ROBERTSON, ANAHAW PTY LTD (ACN 006 317 442), ANIHIDI PTY LTD (ACN 005 049 605) AND WAVERLEY PROPERTIES PTY LTD (ACN 005 799 593)	Defendants

---

JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4-6, 10-12 MARCH 2009
DATE OF JUDGMENT:	1 MARCH 2010
CASE MAY BE CITED AS:	ROBERTSON v ROBERTSON
MEDIUM NEUTRAL CITATION:	[2010] VSC 54

---

CONTRACT – Family business - Alleged oral agreements between father and son – Whether any intention to enter into a legally binding contract - Whether any exchange of promises – Implied contract - Whether exercise of trustee powers subject to oral agreement – Whether father agreed to increase son’s allocation under the family trust – Whether father agreed to transfer superannuation assets to family trust upon his retirement or death – Whether agreement not to sell major asset of business until 2056 - Whether agreement that units and shares would be held by family companies on behalf of the son.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Pearce SC with Mr R. Hay	Mills Oakley
For the Defendants	Mr D. Collins SC with Mr A. McClelland	Brian Ward & Partners

Table of Contents

Introduction and Pleadings

Background to the Family Business

Contributions by Family Members to the Business
Breakdown in Relations Between Father and Son

The 1984 Agreement

Variations to the Trust Arrangements

The 1994 determination
The 2005 determination

Superannuation

The Highway Unit Trust Agreement
The Ferntree Unit Trust Agreement

The Bacchus Marsh Shopping Centre

The Horsewhite Unit Trust Agreement

Environinvest Agreement

HIS HONOUR:

Introduction and Pleadings

This proceeding is the regrettable result of a falling out between a father and his son. The plaintiff, Grant Anthony Robertson (“Grant”), and his father, Bernard Breslin Spencer Robertson (“Bernard”), were once both heavily involved in the operation of the family business. Now they are fighting over its control and ownership. That business, established in 1971 by Bernard, involves property development and investment. Grant alleges that over a number of years a series of agreements, none of them in writing, were made between him and his father about its ownership and control. Their subject matter varied. Put very broadly, they concerned: (i) the amount of Grant’s entitlement under the family trust structure; (ii) the dealings in investments held by Bernard’s superannuation fund; (iii) the future of the major asset of the business (the Bacchus Marsh Village Shopping Centre); (iv) whether certain units in a unit trust known as the Horsewhite Unit Trust are held by the third defendant, a company called Anihidi Pty Ltd (“Anihidi”) for Grant’s benefit; and, finally, (v) whether a parcel of shares in a company called Environinvest Ltd are similarly held by the fourth defendant, a company called Waverley Properties Pty Ltd. Grant alleges that his father has breached each of these agreements. He sues accordingly for breach of contract, or alternatively, specific performance.

In general terms the defence is that, although the relationship between father and son was once close, it was based upon ties of trust and family, not contract. There were and are no agreements by which either party is legally obliged to the other. While Bernard cannot recall the actual communications by which he and Grant developed and nurtured the way they did business together, he can say what he did not agree to. He made no agreements of the kind alleged by his son.

This is a case in which a particularly close examination of the pleadings is warranted. The family relationships, and the family business, were complicated. While as pleaded Grant’s claims are clearly based on contract, they do not fit neatly into well-defined tenets of contract law. The law of trusts seems, at least at first glance, to accommodate them more comfortably. And the evidence does not fit neatly into the allegations made in the statement of claim.

The first plea in the current version of the statement of claim[1] (to which, for convenience, I shall refer as “the statement of claim”) is that of the father/son relationship. It is admitted. So too is both the incorporation of Anihidi and its role as the trustee of a unit trust - the Robertson Unit Trust – which forms part of the family property. At the same time, as the defendants also concede, another company, Anikau Pty Ltd (“Anikau”) “held all the units in the Robertson Unit Trust”.[2] It did so as the trustee of the Robertson Family Settlement. It therefore seems, on the basis of these admitted claims, that Anihidi was the legal owner of the units while Anikau was simultaneously both their beneficial owner (qua Anihidi) and (qua the beneficiaries of the Robertson Family Settlement) trustee of them for those beneficiaries.
[1]Consolidated amended statement of claim filed 11 November 2008.
[2]Statement of claim, para.3(b).

In addition to its other roles within the Robertson structure, Anikau “provided management services to the trustee companies of unit trusts and syndicates (in which members of the Robertson family had significant investments) that were established for the purposes of property development and property investment.”[3] The individual trustee companies to which Anikau provided services in this way, and in which members of the family had significant investments, formed “the Robertson Group” of companies. This too is admitted.
[3]Ibid, para.3(a).

The next allegation in the statement of claim is (it seems) to some extent controversial. It is to be found in paragraph 3(c) of the pleading. It is that the Robertson Family Settlement “is a trust established for the benefit of the Robertson family which is divided into four sub-funds respectively known, after each of Bernard’s children, as ‘Neil’s Fund’, ‘Grant’s Fund’, ‘Bradley’s Fund’ and ‘Vicki’s Fund’ ”.

Bernard and the other defendants admit “that the trust fund comprising the Robertson Family Settlement was divided into four sub-funds” with the names set out in the statement of claim; but they do not admit that the trust was established for the benefit of the Robertson family. The manner in which the defence is pleaded does not make it clear why this is an issue between the parties. The explanation cannot lie in the fact that two family members, Bernard and his wife, were not and are not beneficiaries; they are, the trustee having been given a discretion to divide the income of each child’s fund among that child and his or her parents (and others).

The statement of claim then[4] alleges that Bernard (before 1984) controlled the Robertson Group. He did so because he was the majority shareholder in, and the managing director and chairman of the board of, Anikau and Anihidi, and the majority shareholder in all the companies in the Robertson Group.
[4]At para. 3(d).

The defendants admit that, both before and after 1984, and indeed to the present, Bernard held the relevant managing directorships. They also admit the fact that, before 1985, Bernard was the majority shareholder in Anikau and Anihidi. Otherwise, they do not admit the allegations recited in paragraph 3(d). It follows that they do not admit that before 1984 Bernard was chairman of the boards of Anikau and Anihidi, or was the majority shareholder in all the companies in the Robertson Group.

Grant then alleges that he was, before 1984, “executive director of each company in the Robertson Group”, and held one share in each of Anihidi and Anikau – that one share amounting to 20% of the issued capital of each of those companies.[5] In response, the defendants plead that, while Grant was a director of a number of companies (each of which is identified in the defence), and while his appointment as such was necessary because the law at that time required the companies in question to have at least two directors, the allegations concerning Grant’s position as executive director of each company in the Group is denied. Given, as Grant alleges, that Bernard was the managing director of (at least) two companies in the Group, Anikau and Anihidi, the denial is perhaps unsurprising: the reader of the statement of claim is proffered no definition of the expressions “managing director” and “executive director”, and therefore has no means of ascertaining how a company might operate with one of each.
[5]Statement of claim, paragraph 3(e) and 3(f).

By contrast with the defendants’ denial that Grant held the position of executive director, they admit that he held one share in each of Anihidi and Anikau, and that one share amounted to 20% of the issued capital of each of those companies. It is, however, not admitted that before 1984 Grant “had provided guarantees to financiers of the Robertson Group and to vendors who had sold land to companies in the … Group”: statement of claim, paragraph 3(g). The allegation made by paragraph 3(h) - that Grant before 1984 devoted substantial amounts of time to working for the Robertson group for no reward - is denied, save that the defendants concede that none of the directors of those companies in which it is admitted that Grant was a director received any director’s fees before 1984.

The year 1984 is significant because it was during that year that Bernard married Rosemary Moores. It was his second marriage: Beryl, the mother of his four children, had died on 4 October 1980. According to Grant, the prospective marriage provided the impetus for a review of the structure of the family business. This review was, Grant alleges, informed by a recognition of his membership of the Robertson family, and of his past services to the Robertson Group, including his guarantee of its obligations not only to financiers, but also to those from whom it purchased the land it then developed. Moreover, the agreement to which the review gave rise was (or so the statement of claim would have it) in consideration of Grant (i) transferring both his share in Anihidi and his share in Anikau to the trustee of a new trust to be known as the Robertson Family Trust and (ii) agreeing to continue (a) to work for the Robertson Group and any companies that became part of it, and (b) to guarantee the obligations of its members, present and future.

All this is set out in paragraph 4 of the statement of claim, a paragraph that winds itself around nearly four pages of hyperactive text before meeting up with paragraph 5. In the latter part of its journey, it describes the agreement which, it alleges, was brought into being after the completion of the review. It refers to this agreement as “the 1984 agreement”, and in the prayer for relief seeks an order that it be specifically performed or, alternatively, an order for damages – presumably, as a result of its breach.

Particulars of the 1984 agreement are given under paragraph 4. The agreement was, according to those particulars:

… partly oral and partly to be implied. Insofar as it was oral, it was constituted by conversations between Grant and Bernard … between February 1984 and September 1984. … Insofar as it was implied it was implied by the implementation of the facts alleged in paragraph 5 below that relate to the 1984 agreement.”

By the terms of the 1984 agreement, as alleged in paragraph 4, Bernard and Grant agreed that Grant would restructure the Robertson Group; and he would do so in a manner that ensured 11 things. First, that the assets of the Robertson family would remain under the control of blood relatives. Secondly, that those assets would be protected even in the event that litigation against Anihidi, or Anikau, or both, were to be successful. Thirdly, that Grant would continue to work for the Robertson Group. Fourthly, that Bernard would “retain control of the Robertson Group until his death”. Fifthly, that “Bernard and Grant would be the executive directors of Anikau and Anihidi and any further companies that became part of the Robertson Group”. Sixthly, that Grant would continue to be executive director of all the existing members of the Group. Seventhly, that he “would be given an interest in … the Robertson Family Trust that included separate funds attributed to Neil, Grant, Vicki, Bradley and Rosemary … which in the case of Grant and Neil would reflect the amount of work that they had done and were expected to do for the Robertson Group … and which in Grant’s case reflected the matters referred to in paragraph 4(b)” (namely, the benefits which, by being guarantor for the Group, Grant conferred on the Group and therefore on the family). Eighthly, that “the Robertson Family Trust would have an unallocated fund [being an additional, and therefore the sixth, fund within the Trust] that could be allocated to each of the [five separate] funds referred to … [above] having regard to future contributions made by Grant, Neil, Vicki and Rosemary to future growth in wealth of the Robertson Group”. (The absence of any reference to Bradley at this point – paragraph 4(A)(viii) of the statement of claim - is unexplained). Ninthly, that “Grant and Bernard would determine how the assets contained in the unallocated fund referred to … [above] would be allocated and would cause the trustee of the Robertson Family Trust to give effect to that determination”. Tenthly, “that as Bernard reduced his involvement with the day to day affairs of the Robertson Group … Grant would take over the day to day control of the … Group”. And, finally, that the trustee of the Robertson Family Trust would control any further companies that became part of the Robertson Group.

As pleaded in the statement of claim, the 1984 agreement also provided that “Bernard would make a new will in the form of a testamentary trust that ensured that upon Bernard’s death Grant and Neil would together control all the companies in the Robertson Group” and that “Bernard would transfer his shares in Anihidi and his shares in Anikau to the trustees of the Robertson Family Trust.”[6]
[6]Statement of claim, para.4(B) and 4(C).

The defendants deny, in its entirety, paragraph 4 of the statement of claim. The consequence is that, if Grant is to succeed in obtaining the relief which he claims in relation to the 1984 agreement, he must prove on the balance of probabilities the facts upon which the existence of an agreement in the terms pleaded depends. But, although clarity may come when the litigation landscape is surveyed through wider lens than those provided by a mere portion of the pleadings, the view from the presently restricted horizon discloses potential difficulties. As pleaded, the agreement is internally inconsistent. It also contains elements that may not be sufficiently certain. And it sits within the context of complicated trust arrangements which were put in place to benefit not merely Grant but also the other members of Bernard’s family. These arrangements bind the trustee or trustees; and the alleged agreement between Bernard and Grant was an agreement which had as its parties two people who were intimately familiar with the terms of the trusts and the rights and obligations attached to them. It follows that, insofar as the agreement purported to affect trust property, or to stand between a trustee and the trustee’s duty, it could not be enforced by the court if to do so were to make the court complicit in a breach of trust. Nor could it be the subject of a claim by Grant if it were not intended to have binding force.

An example of each potential problem may readily be given. First, an internal inconsistency, or at least an inherent uncertainty, lies in the allegation that Grant would restructure the Robertson Group in a manner that ensured on the one hand that Bernard “retain control of the Robertson Group until his death” and on the other “that as Bernard reduced his involvement with the day to day affairs of the … Group … Grant would take over day to day control of the … Group”. Likewise, there appears to be an inconsistency in, on the one hand, the proposed allocations to Neil and Grant, the size of which was to reflect in part the work they were expected to do for the Group, and the other the disposition of the unallocated fund, which would be based in part on their like contributions – thus enabling them, as opposed to their siblings and Rosemary, to be rewarded twice for the same work.

Secondly, uncertainty lurks in the proposition that Grant would restructure the Group in a manner that ensured that he would remain working for the Group. In what circumstances? For life? For how many hours a day, or a week? For how many weeks in a year? For what remuneration? What duties were or would be included in his job description? Perhaps the answer is that we are at present looking only at paragraph 4 of the statement of claim, and therefore at what Grant undertook to ensure. On this assumption, and based on this paragraph, the reader is entitled to expect that the pleading will later include an allegation that Grant has fulfilled this undertaking by drawing a contract of employment which includes the terms necessary for such a contract to be efficacious and enforceable.

Thirdly (in relation to the complications inherent in imposing an agreement upon the structure of a trust) what right would repose in Bernard and Grant to “determine how the assets contained in the unallocated fund … would be allocated” unless the trust instrument so provided? There is nothing in the statement of claim to suggest such a provision. Again, the reader is entitled to expect a subsequent allegation that Grant has drawn a trust deed which makes provision for the creation of an unallocated fund the assets and income of which are to be allocated according to the determination of Bernard and Grant, with some appropriate provision by which disagreements between them might be resolved.

Another point should be made about the agreement as pleaded in paragraph 4 of the statement of claim. It does not readily present to the reader as something which was intended to have binding force and upon which Grant might successfully sue. Rather, it is portrayed in the pleading more as a consensus, reached between Bernard and Grant as fellow trustees or directors, about certain aims which should be pursued. These having been agreed, Grant was given the responsibility of adding the necessary detail to a general concept. In other words, its description in the statement of claim would fit the kind of agreement which directors and trustees routinely make between themselves in the exercise of their duties as such, with no suggestion that they are thereby creating private obligations one to the other. It is particularly difficult to read paragraph 4 as pointing to the creation of private obligations owed by Bernard to Grant.

Evidence, when called, may of course alter this first impression of the case as pleaded by the plaintiff. Until then, the reader waits and wonders.

As pleaded, the agreement imposes but two obligations on Bernard. First, he was to make a will that ensured that upon his death Grant and Neil would control all the companies in the Group. Secondly, he was to transfer to the trustee of the soon-to-be-created Robertson Family Trust all his shares in both Anihidi and Anikau. According to paragraph 5(f) of the statement of claim, he fulfilled each of these obligations. At this point, therefore, the source of any complaint Grant may have, and upon which this litigation is founded, remains a mystery.

The mystery deepens when one contrasts what the plaintiff alleges that the 1984 agreement required him to accomplish with what he maintains he actually did and what he thereby achieved. While Bernard had only to make a new will giving control of the Robertson Group to Neil and Grant, and transfer some shares, Grant was by the 1984 agreement obliged to ensure each of the 11 outcomes to which I have already referred. But, according to his own allegations, he failed to accomplish a number of them. It is instructive at this point to make the comparison between aspiration and achievement.

Although, as Grant contends, he undertook to ensure that he remained working for the Robertson Group, he is no longer associated with it. This is the first miss-match between what he says was his responsibility and what he accomplished. Secondly, although part of his consideration for becoming a party to the 1984 agreement was that he would continue to guarantee the obligations of the Group, he no longer puts himself forward as a guarantor. Thirdly, although he undertook to ensure that he would continue to be a director of the member companies of the group, he no longer is. Fourthly, although he undertook to ensure that he and his father would determine how the assets contained in the unallocated fund would be allocated, and that the two of them would cause the trustee of the Robertson Family Trust to give effect to that determination, the evidence called at the trial revealed a trust deed which made no provision to this effect; and neither did any other instrument prepared by Grant or anybody else. Fifthly, although Grant undertook to ensure that, as Bernard reduced his involvement with the day to day affairs of the Robertson Group, Grant would take responsibility for those affairs, Grant has now gone from the Group, and Bernard dictates how great or small his own involvement is.

It is noteworthy that the statement of claim does not allege that Bernard had responsibility for giving effect to Grant’s undertakings. He could merely await the outcome. If it were not in accordance with the undertaking in question, Bernard (as the argument for the defendants runs) need do nothing.

These propositions must now be examined in the light of paragraphs 5 and 6 of the statement of claim. It will be necessary thereafter to turn to the evidence. Paragraph 5 begins with the assertion that “pursuant to the 1984 agreement” certain things were done. The list, however, does not bear an easy relationship with the list of eleven items included in paragraph 4 as those things which, according to that paragraph, Bernard and Grant agreed that Grant would do; or, to put more it accurately, the giving effect to which Grant would “ensure”. To reiterate: paragraph 4 alleges that, by the agreement, Grant was to restructure the Robertson Group so as to ensure certain outcomes. By its introductory words, paragraph 5 alleges that, pursuant to the 1984 agreement, Grant “restructured the companies and trusts in the Robertson Group by causing” certain things to be done (as opposed to producing the results which Grant was to “ensure”). One thing which Grant caused to be done was the incorporation of Anahaw. He also, according to paragraph 5(a)(iii) of the statement of claim, caused that company to be appointed trustee of the Robertson Family Trust. The creation of that Trust was, as pleaded in paragraph 4 of the statement of claim, one of the things which Grant agreed to do; but that paragraph says nothing about the ranking of the new Trust amongst the several trusts within which the Robertson family cocooned its affairs. Nevertheless, paragraph 5 claims that, pursuant to the 1984 agreement, Grant “established [the Robertson Family Trust] as the main family trust for the Robertson family”: paragraph 5(a)(ii)[7].
[7]My emphasis.

According to paragraph 5, all of the 60 issued shares in Anahaw, bar one, were – pursuant to the 1984 agreement - issued to Bernard; and the single share of which Bernard was not the legal and beneficial owner was issued to Grant on trust for his father. The 60 shares were in five classes: 15 “A” class; 15 “B” class, one of which was held by Grant in trust for Bernard; 10 “C” class, 10 “D” class and 10 “E” class. It is not alleged that different classes enjoyed different rights. All this was Grant’s doing, since it all came about as a result of Grant’s restructure, pursuant to the 1984 agreement, of the Robertson Group. As a result of Grant’s restructure Bernard was, therefore, the beneficial owner of all the shares in Anahaw. This is consistent with the object of ensuring the retention of Bernard’s control over the Group until his death; it is inconsistent with Grant assuming, gradually, control of the day to day affairs of the Group, since Anahaw (and therefore Bernard) was given effective ownership and control of all of the five shares in the issued capital of Anihidi and all of those, again five in number, in the issued capital of Anikau. According to paragraph 5(a)(v) of the statement of claim, four of the five shares in Anihidi were held outright by Anahaw, and the fifth was held by Bernard on trust for that company. The position with Anikau was the same.[8] Moreover, while paragraph 3(d)(iv) of the statement of claim alleges that before 1984 Bernard was “the majority shareholder in all the companies in the Robertson Group”, and while paragraph 5(b) suggests that after the restructure “except for two companies in the Robertson Group, Anahaw and Anihidi were the owners of all the shares in the companies in [that] Group”, any implied change in Bernard’s position was without substance given his ownership of Anahaw and, through Anahaw, Anihidi. It must therefore be assumed that Bernard’s control of the Group remained and remains unchanged.
[8]Statement of claim, para.5(a)(vi).

According to paragraph 5(a)(vii) of the statement of claim, the restructuring effected by Grant pursuant to the 1984 agreement had the consequence that Bernard and Grant were appointed directors of Anahaw. It had, too, the further consequence that “the rights attaching to units in the Robertson Unit Trust held by Anikau as trustee of the Robertson Family Settlement [were] varied.”[9] The statement of claim descends to no details of the variation. Instead, it immediately proceeds to allege that “new units [were] issued to Anahaw as trustee of the Robertson Family Trust which had different rights to those issued to Anikau.”
[9]Ibid, para.5(a)(viii).

Both the new and the old units were units in the Robertson Unit Trust. It was asserted in the particulars under paragraph 3(a) of the statement of claim that Anihidi was, before 1984, the trustee of that trust. There is nothing at or leading up to this point in the pleading – paragraph 5(a)(viii) - to suggest any change in that position. Paragraph 4 does not contain an assertion that Grant would include in his restructure of the Robertson Group the removal from Anihidi of its responsibilities to the Robertson Unit Trust; and paragraph 5 contains nothing to indicate that Grant’s restructure had that effect. On the contrary, the particulars under paragraph 5(b) refer to Anihidi “as trustee of the Robertson Unit Trust”.

The statement of claim does, however, set out at this point particulars of the new units issued to Anahaw and the variation in the rights of the old units held by Anikau. The latter became entitled to priority in the distribution of the first $20,000 of both capital and income. The (new) units held by Anahaw were “entitled … to be considered for income distributions after income distributions paid to the holders of the [Anikau] units and the balance of the capital … upon a winding up or redemption of units”.[10]
[10]Ibid.

I noted above that, if the particulars under paragraph 3(d)(iv) correctly state the position, Bernard was before 1984 “the majority shareholder in all the companies in the Robertson Group”. This is an allegation denied by the defendants. After 1984, if paragraph 5(b) of the statement of claim is right, “except for two companies in the Robertson Group, Anahaw and Anihidi were the owners of all the shares in the companies in the Robertson Group”. As explained above, the change nevertheless makes no material difference. This is made clear by both the statement of claim and the defence. As Grant pleads in paragraph 5 of the statement of claim, and as the defendants themselves assert in their defence, Bernard holds the legal and beneficial interest in four of the five shares in Anahaw, and the beneficial interest in the remaining one, and Anahaw in like fashion is the beneficial owner of all five shares in Anihidi (and, for that matter, Anikau). The defendants admit that Anahaw and Anihidi are shareholders in the individual companies identified in paragraph 5(d) of the defence as members of the Robertson Group. For reasons which will become apparent, it is of interest that they include Horsewhite Properties Pty Ltd, but not Eveleigh Nominees Pty Ltd.

To an outsider looking in, the multiplicity of companies and trusts and ownerships peering dimly out of the pages of the statement of claim presents itself as a world of smoke and mirrors, the necessity for which is unknown and perhaps unknowable. Granted, there may be good sense in having separate trusts and, perhaps, trustees for each separate property development. Granted, too, that a legitimate desire to restrict the spread of liability might have been a factor. But at the level of Anahaw and Anihidi and Bernard, and the Robertson family generally, there seems to be no reason save perhaps for taxation benefits why the arrangements could not have been much simpler, with the same end result.

The statement of claim is certainly productive of confusion about the structure of the Robertson arrangements. The claim in paragraph 5(b) that Anahaw and Anihidi were, following Grant’s 1984 restructure, owners of all the shares in all bar two of the companies in the Robertson Group, is an example. For one thing, Anahaw was, following the restructure, the owner of all the shares in Anihidi. Relevantly, therefore, Anihidi drops out of the picture, and it becomes inappropriate to describe it as a joint owner, with Anahaw, of anything. Secondly, the paragraph goes on to identify the two exceptions as Horsewhite Properties Pty and Eveleigh Nominees Pty Ltd. Having done that, it asserts that the shareholders in those two entities were and are either (in the case of Horsewhite Properties) Anahaw and Anihidi and other members of the Group, or (in the case of Eveleigh, until 2007) other members of the Group (but neither Anahaw or Anihidi); and, if the particulars under paragraph 5(b) are correct, thereafter (again, in the case of Eveleigh) Anahaw and Anihidi directly. But the statement of claim has already asserted that the shares in those “other members” were themselves held by Anahaw and Anihidi. It follows, in these circumstances, that paragraph 5(b) cannot be correct in excepting Horsewhite Properties and Eveleigh Nominees from the proposition that Anahaw and Anihidi were after 1984 the owners of all the companies in the Robertson Group. There were, in truth, no exceptions.

The next allegation in the statement of claim seems to be undisputed, at least for the purposes of this litigation. It is that Bernard and Grant were appointed executive directors of all the Robertson Group companies.[11] In response, the defendants accept that “Grant and Bernard either are, or have at various times in the past been, directors of the companies in the Robertson Group”;[12] but they also assert that nothing said in paragraph 5 to have been “implemented in pursuance of any contract between Grant and Bernard” was in fact thus effected.[13] If anything was done, its doing had no connection with any agreement between father and son.
[11]Statement of claim, para.5(c).
[12]Defence, para.5(e).
[13]Ibid, para.5(h).

This assertion would cover the next of Grant’s allegations were it not denied altogether. It is that, pursuant to his agreement with his father, he guaranteed the obligations of the Robertson Group – involving total potential liabilities of $50,000,000, with a current exposure of $23,000,000.[14]
[14]Statement of claim, para.5(d).

For reasons which do not appear in the statement of claim, Grant did not, as part of the 1984 agreement, undertake to “restructure the Robertson Group in a manner that ensured” Grant’s “continuing to guarantee the obligations of companies in the Robertson group and further companies that became part of the Robertson Group”. Paragraph 4(ii) merely alleges that such a guarantee was part of the consideration given by Grant for Bernard’s promise to make a new will and transfer his shares in Anihidi and Anikau to the trustee of the Robertson Family Trust. This is in contrast to Grant’s agreement to continue to work for the Robertson Group. The continuation of Grant’s engagement in this way is alleged to be not only the other part of the consideration given by him for the two promises allegedly made by Bernard, but also something which Grant would “ensure” as part of the restructure of the Robertson Group.

The statement of claim, now at paragraph 5(e), pleads that, pursuant to the agreement, the Robertson Family Trust was established. It was divided into 100 parts, 18 of which were allocated “for Grant’s family (‘Grant’s Fund’)”, and the same number “for Neil’s family (‘Neil’s Fund’)”. The share “for Vicki’s family (‘Vicki’s Fund’)” was set at nine parts. Bradley’s family received seven parts, and Rosemary’s family received six. (Nothing is said about the composition of “Rosemary’s family”, so one is left to speculate about who might be included. Bernard? Bernard and the step-children? Other children by some other father?) A total of 52 parts having thus been allocated, the balance of 42 parts was, for the time being, deliberately left unallocated.

It is another unsatisfactory feature of the statement of claim that, although this allocation is described in paragraph 5 under the rubric of things allegedly done “pursuant to the 1984 agreement”, paragraph 4 - which gives details of that agreement – says nothing about the share which any beneficiary is to take of the 100 parts into which the fruits of the new family trust were to be divided; and there is no reference in either paragraph 4 or paragraph 5 to the means by which those shares were, or were to be, fixed, save that (i) the (then unspecified) share of Grant and Neil was asserted in paragraph 4(A)(vii) as being, when fixed, intended to “reflect the amount of work that they had done and were expected to do for the Robertson Group” and (ii) that Grant and Bernard would determine how the assets contained in the unallocated fund would be allocated. It is therefore impossible from the statement of claim itself to ascertain whether or not the allocations were truly “pursuant to the 1984 agreement”.[15] One can (and perhaps should) assume, however, that (i) Neil and Grant had in the past and (it was anticipated by Bernard and Grant) would in the future make contributions of about equal value and (ii) that the trust deed of the Robertson Family Trust would provide for an “unallocated fund” the income and capital of which were to be allocated in accordance with determinations made from time to time by Bernard and Grant .
[15]Statement of claim, para. 4(A)(ix).

Before searching the statement of claim for the anticipated allegations, it is appropriate to continue the examination of paragraph 5. According to paragraph 5(f), in September 1984 Bernard (again, pursuant to the 1984 agreement) made a will. In it, he divided the 60 shares in Anahaw so that Grant and Neil received 15 each, while ten were allocated to each of Vicki, Bradley and Rosemary. Paragraph 5(f) asserts that this “ensured that upon Bernard’s death Grant and Neil would assume control of the Robertson Group.” In fact, as its own terms reveal, it only ensured that – if the will remained unchanged - those two would have a 50% interest, while the other three would between them hold the other half.

The 1984 will was, if paragraph 5(g) of the statement of claim correctly describes the position, superseded by another made, in relevantly the same terms, in 1988. In the meantime, following 1984, “Grant continued to devote substantial amounts of his time to working for the Robertson Group”.[16]
[16]Statement of claim, para.5(h).

Whether paragraph 5(g) does or does not correctly describe the position is, on the pleadings, a question which on one level is easy to answer. The defence admits the making of the two wills. On the other hand, it does not address their terms other than to deny whatever in paragraph 5 is not admitted. Issue is therefore joined not only over the allegation about Grant’s continued service, but also over the allegation concerning the terms of the wills.

Meanwhile, as paragraph 5 of the statement of claim moves beyond sub-paragraph (g), it continues to devote large amounts of space to the changing post-1984 landscape. In terms of strict pleading, the entirety of that landscape is said by the plaintiff to be the product of the 1984 agreement. The particulars under paragraph 5(i), however, describe one event which was not: Bradley’s death on 25 April 1993. As those particulars would have it, he did not leave a family. The evidence was different. It disclosed that he left a wife. Indeed, he had left her before he died, and at the time of his death was living with a new partner. But he had no children. To say that he left no family was nevertheless inaccurate. To say that he left a wife who was regarded by Grant and Bernard, and perhaps others, as not entitled to her late husband’s interest in the family fortune, is – on the evidence as I understand it – entirely correct. Although the statement of claim does not explicitly say so, it proceeds on the basis that Grant and Bernard treated Bradley’s share as being no more than contingent. He had no enforceable right to, or interest in, the Robertson Family Trust. One may at this point in the examination of the statement of claim assume, since there is nothing in the pleading to suggest any relevant distinction between Bradley, his siblings and Rosemary, that at the time of Bradley’s death nobody had a vested beneficial interest in the capital of that Trust.

It was presumably on this basis that (if the statement of claim is accurate) Bernard and Grant did not allow Bradley’s notional share to fall into Bradley’s estate. Rather, it was, according to paragraph 5(i) of the statement of claim, redistributed among the remaining contingently entitled beneficiaries of the Trust. In the words of that paragraph, “Pursuant to the 1984 agreement … (i) in or about 1995, Grant and Bernard determined that Bradley’s Fund in the Robertson Family Trust would be transferred into the unallocated fund and the unallocated fund allocated to … Neil’s Fund – 35.2%; Grant’s Fund – 35.2%; Vicki’s Fund – 17.65%; and Rosemary’s Fund – 11.76%”.

These percentages add up to 99.81. Perhaps there is a misprint somewhere in this portion of the statement of claim. Whatever the problem, the defence simply denies the relevant allegations; and Grant himself goes on to plead – in paragraph 5(j) - that he and his father “Pursuant to the 1984 agreement ... (j) in or about August 2005 ... determined that because of Grant’s contribution to the growth in the wealth of the Robertson Group, Grant’s Fund would be allocated assets from the unallocated fund so that Grant’s Fund notionally held 40% of the assets of the Robertson Family Trust”.[17]
[17]Statement of claim, para.5(j).

This is another example of the capacity of this statement of claim to obscure, rather than reveal, the issues. As I have noted, paragraph 5(i) speaks of Grant’s and Bernard’s 1995 determination, under the rubric of the 1984 agreement, that “the unallocated fund [would be] allocated” to the four remaining funds: Neil’s, Grant’s, Vicki’s and Rosemary’s. If this determination was put into effect, as paragraph 5(i) implies it was, then there was nothing left in the unallocated fund to allocate. Yet (again, as I have noted) paragraph 5(j) asserts that such a further allocation was made – and one very favourable to Grant’s Fund, because it “notionally” increased that fund’s share in the assets of the Robertson Family Trust to 40%. It is entirely unclear whether this was at the expense of shares previously allocated to the funds of Neil, Vicki and Rosemary, or whether – despite the implication contained within paragraph 5(i) – the unallocated fund remained intact, or at least with something left to allocate. It does seem clear, for reasons which will later be addressed, that neither the 1995 allocation nor the further allocation could properly be effected without an amendment to the Robertson Family Trust Deed of Settlement.

It is also clear that the statement of claim is predicated on the assumption that, since the 40% allocation to Grant’s Fund was made pursuant to the 1984 agreement, earlier allocations could be revoked by those made later. Indeed, this is acknowledged by paragraph 5(k), which states that “Pursuant to the 1984 agreement ... (k) in or about August 2006, Grant and Bernard determined to revoke the 1995 determination”. The particulars under this sub-paragraph refer to a document signed by Grant and Bernard, but give no further details. In the meantime, the reader of the statement of claim is left to wonder why the allocation the year before (in August 2005) of a notional 40% interest to Grant’s Fund did not itself amount to a revocation of the determination of 1995.

As pleaded, Grant’s Fund’s entitlement to its “notional” 40% arises pursuant to the 1984 agreement, and not as the consequence of some independent agreement made between Bernard and Grant in August 2005, or any other time. No independent agreement is alleged. And if it were, it would confront the difficulty that the consideration for it was past: Grant’s Fund was, as paragraph 5(j) of the statement of claim makes clear, allocated its notional 40% because of his past contribution to the Robertson Group. That allocation increased his fund’s share of the 100 parts into which the assets of the Robertson Family Trust had been divided, and decreased that of the unallocated fund, or perhaps the funds of Grant’s siblings and step-mother as well. There is no suggestion in the statement of claim that an amendment to the trust deed was required to effect this change. It follows that the statement of claim proceeds on the basis that the original 18% interest of Grant’s Fund was merely contingent, as were all allocations made pursuant to the 1984 agreement. The reader is left to assume that the trust deed will reflect this.

The remaining allegations of paragraph 5, to be found in sub-paragraphs (l) and (m), are that, pursuant to the 1984 agreement, Grant and Bernard transferred to Anahaw not only the share (Grant) or shares (Bernard) each held separately in Anihidi, but also the share or shares each held separately in Anikau.

As I have recorded, the particulars under paragraph 4 of the statement of claim describe the 1984 agreement as being “partly to be implied”. And “[i]nsofar as it was implied it was implied by the implementation of the facts alleged in paragraph 5 ... that relate to the 1984 agreement. The plaintiff’s case (as alleged in paragraphs 4 and 5 of the statement of claim) is, therefore, that insofar as the 1984 agreement arose as by implication, it arose from Grant restructuring the companies and trusts in the Robertson Group by causing the eight outcomes identified in paragraph 5(a) of the statement of claim, namely:

(i) Anahaw to be incorporated;
(ii)the Robertson Family Trust to be established as the main family trust for the Robertson family;

(iii) Anahaw to be appointed trustee of the Robertson Family Trust;
(iv) all the shares in Anahaw to be held beneficially by Bernard;
(v) & (vi)Anahaw to be the beneficial owner of all the shares in both Anihidi and Anikau;

(vii) Bernard and Grant to be appointed directors of Anahaw;
(viii)the rights attaching to units in the Robertson Unit Trust held by Anahaw as trustee of the Robertson Family Settlement to be varied, and new units, with different rights, to be issued to Anahaw.

It may be accepted, at least for present purposes, that these steps are unlikely to have been taken without some agreement between Bernard and Grant. Grant, however, needs to go further if he is to qualify for the relief which he seeks in this litigation. Hence the statement of claim asserts that the 1984 agreement was also to be implied by the implementation of all the facts alleged in paragraph 5 that relate to the 1984 agreement. But all the facts alleged in paragraph 5 relate to that agreement. Thus, the 1984 agreement is, according to the case as pleaded in the statement of claim, to be implied (in part) from the fact that Anahaw became, directly or through Anihidi, the owner of all the shares in the member companies in the Robertson Group;[18] that Bernard and Grant were appointed executive directors of all those companies;[19] and that Grant guaranteed their obligations.[20] The agreement (so the allegations continue) was further to be implied following the allocation of the 100 parts into which the assets of the Robertson Family Trust were divided: namely, as to 18 for Neil’s Fund, 18 for Grant’s Fund, 9 for Vicki’s Fund, 7 for Bradley’s Fund, 6 for Rosemary’s Fund and 42 for the unallocated fund.[21]
[18]Statement of claim, para.5(b).
[19]Statement of claim, para.5(c).
[20]Statement of claim, para.5(d).
[21]Statement of claim, para.5(e).

No relevant implication arises from any of this. Anahaw’s assumption of the position of holding company for the Robertson Group does not imply any wider agreement than the narrowly-focussed consensus that it should assume that role. Nor does the appointment of Bernard and Grant as directors imply any wider agreement. Grant was a guarantor before 1984, so the fact that he continued in that position thereafter implies nothing. And, as pleaded, the 1984 agreement was silent about the division as between the funds of individual family members of the assets of the Robertson Family Trust. That division cannot therefore imply anything.

According to the plaintiff, the implication upon which he relies is further supported by Bernard’s making, in 1984, of a new will by which, if implemented on Bernard’s death, 15 shares in Anahaw would pass to Neil, 15 to Grant, and 10 to each of, respectively, Bradley, Vicki and Rosemary;[22] and that another will, containing like terms to those referred to in paragraph 5(f) of the statement of claim, was made in 1988.[23] Additionally, “Grant continued to devote substantial amounts of his time to working for the Robertson Group”[24] and “in or about 1995 Grant and Bernard determined that Bradley’s fund in the Robertson Family Trust would be transferred into the Unallocated Fund which in turn would be allocated to the funds of the surviving beneficiaries so that Neil and Grant received 35.2%, Vicki received 17.65% and Rosemary 11.76%”[25] (a total of 99.81%). According to the statement of claim, the implication was further made out by the August 2005 determination to allocate assets from the unallocated fund to Grant’s Fund so that the latter “notionally held 40% of the assets of the Robertson Family Trust”.[26] And so the implications continue through the balance of paragraph 5 of the statement of claim: they arise, so the plaintiff alleges, from all of the above as well as from the 2006 determination to revoke the 1995 determination[27] and from the transfer to Anahaw by Grant and Bernard respectively of their shares in Anihidi and Anikau.[28]
[22]Statement of claim, para.5(f).
[23]Statement of claim, para.5(g).
[24]Statement of claim, para.5(h).
[25]Statement of claim, para.5(i).
[26]Statement of claim, para.5(j).
[27]Statement of claim, para.5(k).
[28]Statement of claim, paras.5(l) and 5(m).

There are difficulties with this analysis. An implication is to be distinguished from a conclusion derived from speculation. It is impermissible to speculate. In litigation, one reaches a conclusion by implication only after a process of reasoning based upon logic and experience; a process which in turn enables one to draw an inference which is more likely than not to be correct (sufficient to prove an element of a civil cause of action) or beyond reasonable doubt (sufficient to prove an element of a criminal charge). It follows, accordingly, that one cannot by implication conclude that a new set of circumstances has arisen simply on the basis of the continuation of an existing circumstance or set of circumstances. Bernard and Grant made decisions affecting the assets of the Robertson family before 1984. The fact that they continued to do so in the years after that does not give rise to the implication that post-1984 decisions were made pursuant to a particular 1984 agreement. Likewise, Grant worked for the Robertson Group before the agreement of 1984 was made, and before that agreement guaranteed the obligations of member companies of the group. Again, the fact that he continued to do so after 1984 cannot give rise to the implied conclusion that, in that year, a new agreement was made.

In short, none of the matters relied upon by the plaintiff support an implication that an agreement with all the elements of the 1984 agreement was made. Some, such as the incorporation of Anahaw, support no inference of any agreement at all, since many companies are incorporated following an individual decision made by a single person. Others, such as the appointment of Bernard and Grant as directors, were necessarily made by agreement, but not necessarily by an agreement of the 1984 kind.

There is another problem with the allegation that the matters set out in paragraph 5 of the statement of claim support the implication upon which the plaintiff relies. The 1984 will does not refer to shares in Anahaw. It simply requires the division of Bernard’s residuary estate into 100 parts which are then to be held on trust as to 15 for Neil’s Fund, 15 for Grant’s Fund, 9 for Bradley’s Fund, 11 for Vicki’s Fund, 8 for Rosemary’s Fund and the balance of 42 for the Unallocated Fund. Paragraph 5(f) of the statement of claim completely misstates this aspect of the 1984 will.

Paragraph 6 of the statement of claim exposes some of the problems foreshadowed by an examination of its predecessors. It was a core element of the 1984 agreement, as that agreement is described in paragraph 4A, that Grant “would restructure the Robertson Group in a manner that ensured … [that] (v) Bernard and Grant would be the executive directors of … Anihidi and any further companies that became part of the Robertson Group” and (vi) “Grant would continue to be executive director of all the existing companies in [that] Group”. Paragraph 5, which is concerned to describe that restructure as effected by Grant, does not assert that he succeeded in this aspect of his contractual obligations: it merely asserts that, pursuant to the agreement, he caused “Bernard and Grant to be appointed directors of Anahaw”[29] and that “Bernard and Grant were appointed executive directors of all the companies in the Robertson Group”.[30] It does not allege that those appointments could not be revoked. It does describe arrangements which were consistent with the allegation in paragraph 4 that, pursuant to the 1984 agreement, the restructure undertaken by Grant would ensure “that Bernard would retain control of the Robertson Group until his death”. It does not suggest that Bernard made any promise to retain Grant in any of his directorships.
[29] Statement of claim, para.5(a)(vii).
[30]Statement of claim, para.5(c).

It is therefore not easy to understand how paragraph 6(a) of the statement of claim could allege, as it does, that in breach of the 1984 agreement, Bernard on 21 December 2007 caused Grant to be removed as a director of Anahaw and Anihidi. It is equally difficult to understand how paragraph 6(b) could allege, as it does, that in 2008 Bernard – again acting in breach of the 1984 agreement - likewise caused Grant to be removed as a director of a large number of other companies in the Robertson Group. It is at least as difficult to understand how an order for specific performance of that agreement could be made when that which would be required to be specifically performed – ensuring that Grant would continue in his directorships – was, according to the statement of claim, something Grant should have done himself. Courts do not make orders for specific performance of the obligations of the person seeking the order. Moreover, those orders are discretionary. They are not readily made where the effect would be to cut across the rules of a corporate body and force a director upon a board which, or upon shareholders who, by those rules, has or have power to dismiss, or to decline to re-elect, him or her.

Paragraph 6(c) of the statement of claim alleges another breach by Bernard of the 1984 agreement. It asserts that, in breach of that agreement, Bernard revoked his 1988 will; and paragraph 6(d) alleges that he made a new will on an unknown date. By that will, it is alleged, he bequeathed to Rosemary all the shares in Anahaw. This, it is alleged, constitutes a breach because, according to the version of the agreement set out in the statement of claim, Bernard promised that he would make a will that gave control to Neil and Grant of the companies in the Robertson Group. Anahaw is the holding company for the Group. Were Bernard‘s present will (as described in the statement of claim) to come into effect, therefore, it would give that control to Rosemary.

The defendants admit that Bernard has revoked his 1988 will. They allege that he was entitled to do so. They do not assert that a new will has been made, but rather that it exists in draft form. Its terms are not revealed. (They also submit that, even if Bernard promised to make a will leaving control to Neil and Grant, he never promised not to revoke it.)

The final breach alleged in paragraph 6 is to be found in sub-paragraph (e). It is there said that, in breach of the 1984 agreement, “Bernard has failed or refused to cause Anahaw (as trustee of the Robertson Family Trust) to allocate part of the unallocated fund to Grant’s Fund so that Grant’s Fund comprises 40 parts of the Robertson Family Trust”. This, of course, is said to be a breach of that provision of the 1984 agreement which provided that “Grant would restructure the Robertson group in a manner that ensured … (viii) the Robertson Family Trust would have an unallocated fund that could be allocated … having regard to future contributions made by Grant, Neil, Vicki and Rosemary to future growth in wealth of the Robertson Group [and] (ix) Grant and Bernard would determine how the assets contained in the unallocated fund … would be allocated and would cause the trustee of the Robertson Family Trust to give effect to that determination”. It too must confront the difficulty that this provision does not place any responsibility upon Bernard to do anything. There is also the point that any attempt by Grant to ensure the two outcomes in question would almost certainly require the creation of a document embodying terms appropriate to effect that purpose. After all, the unallocated fund is likely to consist of both income and capital. One may assume, at least for the present, that income can without difficulty be distributed at intervals, and in accordance with such merit as is displayed by the individual family member/contributors over the interval in question. The allocation of capital in accordance with merit cannot so readily be managed. So when one speaks of an allocation made in, for example, 1995 or 2005, one has to wonder – until further information is known – whether that allocation was of capital or income and, if the former, how Grant should be entitled to retain it in circumstances where his contribution to the family’s fortunes might wither to nothing (as, whether through his fault or not, it has) while that of others was increasing exponentially. Why, it might be asked, should Grant retain 40 of the 100 parts of the assets of the family trust when all the contributions to its wealth are now made by others?

Paragraph 6 of the defence deals at length with the claims made by Grant in paragraph 6 of his pleading. It begins by alleging that, on 31 March 2007, “Grant removed himself from any involvement in the management of the day-to-day affairs of the Robertson Group”. In the particulars under paragraph 6(a), it is said that in January 2007 Grant told Bernard of his intention “effective 31 March … to relinquish his day to day involvement in the Robertson Group.” This was followed by a request from Grant to Bernard that the former not be included in the Group’s professional indemnity insurance policy which was due for renewal on 1 April “as I will be resigning.” Then, on or about 28 March, Grant told Bernard that “when I walk out the door on Friday, I hope I never see your face again in my life”.

According to the defence, Grant nevertheless remained as a director of companies in the Group until his final removal in August 2008, while not discharging his duties as such in good faith or in the best interests of the companies. In the particulars under paragraph 6(b) of the defence, it is alleged that it was in the interests of the Group to sell during 2007 one of its assets: the Bacchus Marsh Shopping Centre. Grant accepted that this was so, but refused to sign documents necessary to effect the sale because “that would compromise his legal rights in litigation with Bernard.” In addition, Grant “failed or refused to sign off financial accounts in respect of the Robertson Group which were necessary to enable tax returns to be completed for those entities for the year ended 30 June 2004.” This failure has also, so it is claimed, prevented the completion of financial returns for the year ended 30 June 2005.

The defence proceeds, by paragraph 6(c), to allege that, given Grant’s recalcitrance, Bernard caused his removal on 21 December 2007 as a director of Anahaw and Anihidi and, successively on 5 March 2008 and 7 August that year, as a director of other companies in the Group. It seems that the fact of removal, and the dates on which that occurred, are not a matter in contention.

The defendants’ final response to the claims of breach made in paragraph 6 of the statement of claim is to be found in paragraphs 6(f) and 6(g) of the defence. They there admit that Bernard has not directed Anahaw to allocate part of the unallocated fund to Grant’s Fund, say that he has no obligation to do so, and admit that Grant has guaranteed obligations of some of the companies in the Robertson Group.

Grant alleges, in paragraph 7 of the statement of claim, that the facts pleaded in the previous paragraphs have caused him to suffer loss and damage. Under the heading “Particulars” which follows, it is said, first, that Grant’s share in the $35,500,000 which represents the value of the Robertson Family Trust has been wrongly held at 18%, whereas it ought to be 40%, or $14,200,000. Secondly, he “no longer has any control over distributions made from the Robertson Family Trust or any of the other trusts in respect of which he was a director”. Nor does he have any “control over the companies in the Robertson Group in respect of which he has provided guarantees … which has exposed him to potential liabilities of approximately $23,000,000”.

These are serious claims. The reader of the statement of claim gets the impression that, whatever the legal niceties of the position, Grant is aggrieved that after expending much toil and many tears for the benefit of the business founded by his father, he now faces the prospect of being denied his legitimately expected reward. Nevertheless, on the basis of the cause of action as expounded in the statement of claim to this point, some aspects of Grant’s claim to loss and damage do not impress. To the extent that Grant’s influence over the affairs of the Robertson family derived from his position as a director of member companies in the Robertson Group, his loss of that influence may spring at least in part from his failure to ensure that he (in the words of paragraph 4(A)(vi) of the statement of claim) “would continue to be executive director of all the existing companies in [that] Group”.

Grant next makes a claim which is put in the alternative to those that rely on the 1984 agreement. This alternative position was not pursued at the trial, so I briefly mention it here merely for completeness. It arises under clause 25 of the deed which governs the Robertson Family Trust. Grant, as the defendants admit, is a general beneficiary of that Trust. As such, clause 25 requires the trustee to provide him with adequate consideration for any benefit which, under “any contract agreement or transaction … between [him and] the trustee” was received by the latter. There were, according to paragraph 10 of the statement of claim, many relevant contracts, agreements and transactions between him and Anahaw. This is pursued in paragraph 11, which claims that Anahaw benefited from these to the tune of approximately $28,000,000. But, according to paragraph 12, he has received nothing.

The defendants do not admit the existence of the contracts, agreements or transactions, and deny the amount claimed as their value. To the allegation, contained in paragraph 12 of the statement of claim, that Grant has received nothing for all the benefits which he has conferred on Anahaw, the defendants plead that he was, between 1995 and 2007 paid a salary of $5,000 per annum (by Anikau) and was the beneficiary of payments made by that company into its superannuation fund, so that by 2005 the amount standing to the credit of Grant’s superannuation account was $355,246. What is more, from time to time (or so the defence contends) Grant withdrew for his personal use funds from a corporate member of the Robertson Group (Waverley Properties Pty Ltd). By 2005, the amount thus acquired by him totalled $1,300,000.

The defence then turns to an estoppel point. Again, I mention this only for completeness, because it was not a part of the dispute about which I was asked to pass judgment. It is alleged by paragraph 12A(a) of the defence that Grant never told “Anahaw that he expected to be compensated pursuant to clause 25 of the Robertson Family Trust Deed”; the next sub-paragraph asserts that on at least four occasions since 1995 he declined offers by Bernard to increase the $5,000 he was receiving in salary each year; and sub-paragraph (c) alleges that other family members (Bernard, Rosemary and Neil) provided services to Anahaw for less than a commercial reward, but Grant in his capacity as a director did not see fit to treat them in what he now says was the way he ought to have been treated.

This conduct, according to the defence, led Anahaw to assume that Grant would not make any claim under clause 25. Acting on that assumption, as Grant knew it was doing: (i) Anahaw did not seek or retain otherwise appropriate information; (ii) did not assess the work done for its worth, or even its necessity; (iii) allowed Grant to withdraw funds from Waverley Properties; and “did not make any payment to any other beneficiary … for the work they may have done … without adequate consideration”.[31] Now, “[a]ny conduct by Grant contrary to the assumption will cause Anahaw detriment”.[32] Other beneficiaries will also have entitlements, but Anahaw will have “little means of assessing the precise extent and nature of any work purportedly done by Grant or any other general beneficiary.”[33] Furthermore, had Anahaw not assumed that no claims based on clause 25 would be made, it might have retained other service providers to do at far less cost that for which Grant is claiming some $28,000,000. In these circumstances, “Grant is estopped from acting contrary to the assumption”. In any event, so the defendants contend, the claim is statute-barred.
[31]Defence, para.12C(f).
[32]Ibid, para.12E.
[33]Particulars under para.12E of the defence.

The next of Grant’s claims is presently in dispute. It arises from what he alleges is an anticipatory breach by Bernard of a promise to deal with his superannuation entitlements not as the superannuation scheme would have it – for the benefit of Bernard as retiree – but for the wider family through a distribution to the Robertson Unit Trust or the Robertson Family Trust. The relevant allegations, which begin at paragraph 14 of the statement of claim, are that, in or about 1991, Grant and Bernard considered the purchase of land in Ringwood. The defendants, in paragraph 14 of the defence, accept that this was so. They likewise accept the plaintiff’s allegation, made in paragraph 17 of the statement of claim, that Bernard and Grant were then the trustees of the Anikau Pty Ltd Superannuation Fund. Grant goes on to allege that an agreement was subsequently reached between him and his father. This the defendants deny. In accordance with its terms as pleaded in paragraph 15 of the statement of claim, the “Highway Unit Trust” was established to purchase the Ringwood land, the address of which was 89 Maroondah Highway. The defendants admit that, by a deed dated 1 September 1991, a company called Per Ardua Pty Ltd was appointed trustee, and as such purchased the Maroondah Highway property; and they admit that the units were issued to Grant and Bernard as trustees of the Anikau Pty Ltd Superannuation Fund, in which Bernard had an account. They, however, deny Grant’s allegation, contained in paragraph 15 of the statement of claim, that it was Bernard’s obligation, imposed by the agreement which he made with his son, to ensure that when he retired or died “that part of his superannuation benefit that comprised the Highway units” would be paid in specie either to the Robertson Unit Trust or to the Robertson Family Trust.[34]
[34]Statement of claim, paras.15(c) and 15(d).

The nub of this aspect of the disagreements between father and son is not whether, as Grant alleges, Bernard “intends to pay that part of his superannuation benefit that comprises the Highway units to himself or Rosemary”.[35] Bernard contends that he is entitled to deal with his superannuation benefits in any way he likes. He therefore does not put his intention in issue. The real dispute is whether the agreement for which Grant contends was made, and if so whether Bernard is bound to “do all things that [are] reasonably necessary to give effect to” it.[36] Grant alleges that, “in the absence of an amendment to the deed governing the superannuation fund, and a direction by Bernard to the trustees of the superannuation fund, the trustees of the superannuation fund cannot pay to the Robertson Unit Trust or the Robertson Family Trust that part of his superannuation benefit that comprises the Highway units by way of an in specie distribution.”[37] The defendants “admit that Bernard will not agree to amend the deed governing the Anikau Pty Ltd Superannuation Fund to pay to the Robertson Unit Trust or the Robertson Family Trust any part of his superannuation benefit”.[38]
[35]Statement of claim, para.19.
[36] Statement of claim, para.16.
[37] Statement of claim, para. 21.
[38]Defence, para. 22.

It will be remembered that, according to the statement of claim, Anihidi is the trustee of the Robertson Unit Trust – paragraph 2(b) of that pleading – and that before 1984 Anikau, as the trustee of the Robertson Family Settlement, held all the units in the Robertson Unit Trust – paragraph 3(b). Bernard is, or at least before 1984 was, the majority shareholder in, and chairman of, both companies – paragraph 3(d). Grant restructured the trusts in the Robertson Group by causing the Robertson Family Trust to be established with Anahaw as trustee – sub-paragraphs 5(a)(ii) and 5(a)(iii) – and units in the Robertson Unit Trust issued to it. The statement of claim does not disclose the identity of the beneficiaries of the Robertson Family Settlement, or the sizes of their respective beneficial interests. Without recourse to the trust deed, the reader cannot therefore be confident that Grant’s interest will not be different according as to whether payment was made to the Robertson Unit Trust or to the Robertson Family Trust. Yet, if there is a difference, it would be odd that Grant would be prepared to leave it to Bernard to decide which of the Family Settlement or the Family Trust would be favoured.

Grant seeks specific performance of the 1991 agreement, which (he asserts) imposed upon Bernard an obligation to ensure that when he retired or died his superannuation benefit would ultimately be paid either to the Robertson Unit Trust or to the Robertson Family Trust. A problem with this, apparent on the face of the statement of claim, is the lack of any allegation that Grant gave consideration for any promise which Bernard might have made. Another problem, again apparent on the face of the pleading, is that if there were an agreement, it was simply one made between the trustees about what to do with the Highway units. It was not an agreement intended to give any individual rights to Grant, more especially individual rights for the validation of which he could obtain the assistance of the law.

From Melbourne’s outer east (Ringwood), the Robertson family spread its interests to the fruit-growing regions of Melbourne’s far outer west. In or about 1996, some five years after the Ringwood venture first came under consideration, Bernard and Grant turned their attention to Bacchus Marsh. Land which now, if not then, forms part of the main Bacchus Marsh shopping centre, came on the market. According to paragraph 24 of the statement of claim, Bernard and Grant (who in 1996 continued to be the trustees of the Anikau Pty Ltd Superannuation Fund) agreed between themselves that one of the Robertson Group companies, Bradles Properties Pty Ltd, as the trustee of the Ferntree Unit Trust, would purchase that land (“the Bradles land”) on terms that (a) they as trustees of the superannuation fund would subscribe for and own units in the Ferntree Unit Trust, and (b) would thereafter hold them to Bernard’s account in that Fund. When Bernard retired, “that part of his superannuation benefit that comprised the Ferntree units would be paid to him by way of an in specie distribution and then transferred by him to the Robertson Unit Trust or the Robertson Family Trust”.[39] If Bernard died before he retired, the benefit would be distributed in specie directly to one or the other of those trusts. In the meantime, the land in question would be incorporated into the existing Bacchus Marsh Village Shopping Centre; where (according to paragraph 23(f) of the statement of claim) it “could not be sold or transferred before 2056, being the vesting day of the Bacchus Marsh Unit Trust”. It was (as paragraph 25 of the statement of claim goes on to assert) an implied term of the agreement that Grant and Bernard.
[39]Statement of claim, para.24(c).

This, according to paragraph 27 of the statement of claim, is the reason why, on an unspecified date, Bernard and Grant as trustees of the superannuation fund, caused Bradles to issue the Ferntree units to them. They also caused Bradles to purchase the land in question. This was in 1996. Part of that land was then, in 1997 and the following year, leased to Coles for use as a supermarket, while another part was used as the site of a utility room for the purposes of the centre.

The defendants admit that in 1996 Grant and Bernard were trustees of the superannuation fund, and that they did as such acquire the units in the Ferntree Unit Trust. They likewise admit that Bradles as trustee of that trust has purchased the relevant land, which has been used as described in the statement of claim. The defendants otherwise deny the allegations in paragraphs 24-27 of that pleading.

Grant now alleges that, as with the Highway Unit Trust, so with the Ferntree Unit Trust. According to Grant, Bernard intends to disregard his obligation to ensure that, on his retirement or death, “his superannuation benefit that comprised the Ferntree units would be paid … to the Robertson Unit Trust or the Robertson Family Trust”.[40] Grant has, he alleges, thereby suffered loss and damage.
[40]Statement of claim, para.24(c) and (d).

The defendants respond as they did to the Highway allegations. They maintain that Bernard “is entitled to deal with superannuation benefits paid to him by the trustees of the Anikau Pty Ltd Superannuation Fund in any manner that he sees fit”.[41]
[41]Defence, para.28.

There is on the face of this portion of the statement of claim the same problems that surfaced in connection with the claim in relation to the Highway Trust. It contains no allegation that Grant gave any consideration for any promise by Bernard, and it presents as an agreement between two trustees who have no intention to confer on one of them (Grant) private rights for the vindication of which he may successfully sue.

Grant has an additional complaint arising from the agreement to purchase the Bradles land. He asserts that Bernard now threatens to sell it. The reader of the statement of claim must assume, although the pleading does not explicitly say so, that the threatened sale is to occur in the more or less immediate future, and certainly well before 2056, “being the vesting day of the Bacchus Marsh Unit Trust”.[42] The defendants seem to accept that this is so, because although they too are silent about the date of any predicted sale, they plead in paragraph 32 of their defence that “by 9 October 2007, Bernard … was desirous that Bradles … should sell the Bradles land”. They add, in an allegation which is plainly of significance, that Grant consented to “Bradles ... selling the Bradles land”. This segment of the defence concludes with an alternative assertion. It is that, whether or not that consent was given, Bradles is and was entitled to sell.
[42]Statement of claim, para.24(f).

Having pleaded the 1984 contract and the determinations made pursuant to it in 1995 and 2005, and having pleaded an agreement not to sell the land at Bacchus Marsh until 2056, Grant turns in paragraph 33 of the statement of claim to another agreement. It sits uneasily with its predecessors. It is Grant’s contention as formulated in paragraph 33 that, on 21 November 1998, he and Bernard agreed that Grant “would reduce the time that he spent working as a partner of … [the firm of solicitors known then as] Dibbs Abbott Stillman and then resign as a partner of that firm to devote more of his time working for the Robertson Group”. In paragraph 33(b) it is asserted that “they [Grant and Bernard] would progressively purchase additional land in and around the Centre to enable further extensions to the Centre”. This is followed by the allegation that, as part of the 21 November agreement, “Grant and Bernard would guarantee the obligations of the companies in the Robertson Group to the vendors … and … financiers”.[43] Finally, they agreed that “the land on which the Centre was located would not be sold or transferred before 2056”.[44]
[43]Statement of claim, para.33(c).
[44]Statement of claim, para.33(d).

There is a striking feature of the 1998 agreement as it is described in the statement of claim. If that pleading is correct, Grant had - by an agreement with Bernard made as far back as 1984 – undertaken to ensure that he would remain working for the Robertson Group. But there is no suggestion that he gave effect to this undertaking by drawing an appropriate – or any – contract of employment. Secondly, by the 1984 agreement he had also agreed to guarantee the obligations of the companies in the Robertson Group; and he had in 1996 agreed with Bernard that the Bradles land would not be sold until 2056. If the 1984 and 1996 agreements were in existence and were sufficiently certain, why replicate the relevant provisions in 1998? (It is true that the Bacchus Marsh Village Shopping Centre occupied more than merely the Bradles land; but by November 1998 it formed an integral part of that Centre because it then housed the Coles supermarket and “the utility room for the whole of the Centre”.)[45]
[45]Statement of claim, para.27(e)(ii).

The allegations contained in paragraph 33 of the statement of claim are denied by the defendants. They nevertheless admit that seven members of the Robertson Group have purchased land close to the Centre, and that Bernard and Grant have guaranteed the obligations of one of these companies. According to the defence, the obligations of another two – Ad Astra Properties Pty Ltd and Bradles Properties Pty Ltd – have also been similarly guaranteed. These two, however, do not appear in the list of seven alleged by the defendants to be the purchasers of the additional Bacchus Marsh land.

The next paragraph of the statement of claim illustrates the difficulties posed by allegations that a binding agreement exists within the context of, and impinges upon, a multitude of diverse interests held by a number of persons who may be affected by, but are not parties to, the agreement. These difficulties rear their heads throughout this statement of claim. Grant and Bernard were but two members of a larger family, but if Grant is correct in his contentions, their private dealings - to the extent to which they were effective – in his case enlarged, but frequently in the case of other family members diminished, their rights or expectations; yet, so far as one can tell from the statement of claim, only Bernard and Grant were given any say in the decision-making process.

Grant was also an important person within the structure of his law firm. What was the reaction of the firm to the proposition that he had a binding agreement with his father to spend more time on family matters and less on contributing to the firm? Perhaps he negotiated with the firm before he settled his agreement with his father. If so, the statement of claim is silent on the point. But, if so, one would expect that the time to be allocated to the firm, and perhaps even that to be given to the family, would be carefully delineated, and that the statement of claim would reflect that delineation.

Be that as it may, paragraph 34 of the statement of claim alleges that, “pursuant to the agreement alleged in paragraph 33 … Grant devoted more of his time to working for the Robertson Group” and “reduced the amount of time that he was devoting to working as a partner of [the firm] and in March 2000 resigned as a partner”. In addition, members of the Robertson Group of companies purchased land close to the Centre, and Grant and Bernard guaranteed the obligations to which those purchases gave rise. Now, however, Bernard threatens to sell the Centre. This, Grant contends, will cause him damage.

The defendants respond by conceding that Bernard in his capacity as director of the relevant companies desires to sell the Centre land. They add, however, that on 9 October 2007 Grant gave his consent to this; and even had he not, the owners of the land would have been, and are, entitled to sell it. Or so the defendants contend. (And a relevant point may be noted in this context: the statement of claim does not allege that Grant has any agreement with any member of the Robertson Group by which the power of that member to do what it likes with its property was curtailed.)

The statement of claim concludes with two short and discrete causes of action for breach of contract. The first concerns the Horsewhite Unit Trust. In paragraph 36 of the pleading, Grant claims that he borrowed $10,000 or thereabouts in August 1982. With it, and with $13,356 of his own money, he purchased 5118 “A” class units in the Trust. By agreement with Anihidi, he allowed that company to register those units in that company’s name. For reasons which the statement of claim does not give, the agreement provided that the income derived from the units would be retained by Anihidi, while Grant remained responsible for servicing the loan.

The result, if Grant is correct, was wholly lopsided. According to paragraph 37, he paid out the loan. Meanwhile, Anihidi retained the income – all $200,000 of it. And, despite a demand made by Grant on 29 March 2007, Anihidi has refused to hand the units back.[46] Bernard, as a director of Anihidi, was involved from first to last. Grant now seeks an order that the units be transferred to him. He also seeks damages in the alternative, or in addition to, the transfer.
[46]Statement of claim, paras.37-39.

Each of these allegations is denied by the defendants.

The second of the final contractual claims concerns the fourth defendant, Waverley Properties Pty Ltd. The defendants admit that Bernard is a director. According to paragraph 43 of the statement of claim, Grant was in 2000 the owner of shares in a company called Environinvest Ltd. That year, he agreed with Bernard that Waverley could not only register those shares in its name, but also retain the dividends. Its only obligation was to return the shares to their owner, Grant, on demand. The defendants deny these allegations.

Bernard denies the existence of the 1994 determination. I accept his denial. There is simply no evidence of Bernard and Grant together deciding anything; and a unilateral decision by Bernard would bind no-one, and certainly not Bernard. In any event, such a resolution would at most require the trustee to declare that Bradley’s Fund had vested, and thereafter hold the capital and income of that fund on the same trusts as those of the unallocated fund. The income of the unallocated fund, thus enlarged, would until the vesting day of that fund be allocated in the agreed proportions.

According to Grant, his share of the unallocated fund was then calculated by aggregating the individual shares of the three surviving siblings and Rosemary. These total 51%: 18% (Neil) + 18% (Grant) + 9% (Vicki) + 6% (Rosemary). Grant's proportion of the aggregate was therefore, he contends, 18/51 i.e. 35.2%. But even were this calculation correct, and even were the determination to be effective, he would thereby become entitled only to 35.2% of the income of the enlarged unallocated fund. Because the decision embodied in the resolution was revocable, however, he had no more than a merely contingent interest in the capital of the fund.

The conclusion that Bradley’s Fund had vested, and that its capital and income had been placed under the umbrella of the unallocated fund, would be much easier to reach were there evidence that the income of the unallocated fund was supplemented by the income from the assets formerly held in Bradley’s Fund. There is no such evidence.

The 2005 determination

The plaintiff alleges that in 2005 a further determination was made pursuant to the 1984 agreement. He says that the determination was oral, and that it was made in about August 2005 as he was driving his father home along the Monash freeway following a meeting they had attended in the city with some superannuation fund advisers. According to Grant, his father said:

You and your family have sacrificed a lot for the growth of this empire. You should be rewarded because you haven't been rewarded to date. We should look at issuing units to you in St Bernard's Unit Trust.[66]

[66]T.82-83.

The St Bernard's Unit Trust was the principal unit trust which owned the Bacchus Marsh shopping centre. But, according to the plaintiff, he declined the offer because the issue of additional units to him would unfairly dilute the interests of minority unit holders who then held about 6% of the total. He therefore proposed in lieu issuing a further amount to Grant's Fund in the Robertson Family Trust. His father agreed, and suggested 40%. The plaintiff said “Good, thanks”. That was the end of the discussion.

From time to time thereafter between September and December 2005, as father and son breakfasted together, Bernard would ask, “How are we going with that document for the allocation?” The plaintiff said that during this period he was under pressure to ensure that the accounts were properly maintained, and so he responded, “What do you want me to do? Do you want me to get the accounting work up to date or do you want to do this allocation?”[67] The result was that the plaintiff did not document and did not implement the 2005 determination, even assuming there was one and even assuming that, if there was, it was made pursuant to the 1984 agreement. His inaction supports the conclusion, to which I have come, that there was not.
[67]T.83.

On 1 June 2006 the plaintiff witnessed the cancellation by his father of the direction to the trustees of the testamentary trust to which I have referred in paragraph [147] above. The copy of the document in the court book is crossed with two lines with the words “Cancelled Cancelled” appearing between them together with the date “1 Jun 06” and the signature of Bernard. Grant said he was sitting at Rosemary's desk in the office at Miller Crescent when his father approached him with the document already bearing the crossing and his signature, and asked the plaintiff “Could you sign this?” The plaintiff said he was busy doing something at the time, “and I just saw it and said ‘fine’, I signed it. And from recollection the exchange lasted no more than 30 seconds”.[68] His father did not offer any explanation to him about the document.
[68]T.84.

Again, this evidence does not accord with the making of a joint determination based upon any, let alone an objective, assessment of the contributions made to the family’s wealth by the several members of the Robertson family. It is evidence of a unilateral decision made by Bernard to which Grant was pleased to accede, but which he never implemented.

The plaintiff says that in December 2006, at a time when relations between father and son had broken down, he asked his father “Are you going to sign the allocation for Anahaw?” to which his father replied: “If it is not in writing, I am not going to honour anything”.[69] This is consistent with Bernard’s denial of the existence of the 2005 determination, and his consequent refusal to consent to an implementation of it. In my opinion, Grant has not made out a case for that implementation.
[69]T.85.

Superannuation

The plaintiff further alleges that he and his father reached agreements about the superannuation fund forming part of the family business. The original trust deed, created in 1974, named Anikau as the nominee, and appointed Bernard and Beryl Robertson as the original trustees. That original arrangement was subsequently varied. By November 1994, the new trustees were Bernard, Grant, Neil and Rosemary.

The superannuation fund held two investments: one was the units in the Highway Unit Trust and the other was the units in the Ferntree Unit Trust. As a result of changes in superannuation law and the consequential changes in tax benefits that became available through superannuation funds, it was decided to channel certain of the family investments through the superannuation fund to take advantage of those tax benefits. This decision was made after receiving advice from Mr George Beaumont QC. But the plaintiff asserts that it was not intended that those investments were to be held on the trusts of the superannuation fund, but rather on the trusts of the normal family business. The plaintiff says that he made an oral agreement with his father in respect of the Highway Unit Trust in 1991 the effect of which was that when, either upon the death or retirement of his father, that property was distributed, it would be held on the trusts of the Robertson Family Trust. There was a like agreement in respect of the Ferntree Unit Trust. Bernard has refused to accept any obligation to honour these agreements. Accordingly, Grant asserts that there has been a breach, or at least an anticipatory breach, of them.

The Highway Unit Trust Agreement

Grant gave evidence that in 1992 (not 1991, as pleaded) his father told him that he had been approached by the real estate agents for the receivers of Pyramid Building Society. They drew his attention to a partially developed block of land on Maroondah Highway in Ringwood that “he was looking at buying”. He asked whether the plaintiff was interested in its acquisition “as part of the Robertson Group”.[70] Grant said he agreed, but recommended that the investment be placed into the unit trust owned by the superannuation fund in order to ‘’overcome the in-house asset rule” and to receive the benefit of the 15% tax rate.
[70]T.89.

According to Grant, he and his father agreed that:

… the unit trust would be established and that the units would be held in the unit trust on his account, but the ultimate beneficiary was going to be the Robertson Family Trust, Robertson Unit Trust at that stage, or the Robertson Family Trust. And in relation to which trust it was going to be, I said to him at the time words to the effect “Time will sort the thing out”.[71]

[71]T.90.

However, Grant’s evidence about what exactly was said by him and his father during this conversation makes no reference to either the Robertson Family Trust or the Robertson Unit Trust as being the ultimate beneficiary. This is apparent from the following exchange, which occurred during the course of his evidence in chief:

Q:You said “we agreed”, but can you tell his Honour what you recall he said and you said?
A:Okay. I said “Why don't we put it into this, a unit trust owned by the super fund?” He said words to the effect of “Sounds okay to me, whatever you think is best we will go with”.[72]

[72]T.90.

For his part, Bernard gave evidence that he could recall none of this.

The defendants say that Grant’s evidence is consistent with him conceiving a means to deal with the units for tax purposes, without explaining that to Bernard at the time, and subsequently reconstructing conversations to reflect his (Grant’s) intention. Even more significantly, the defendants submit that the evidence given by Grant discloses no exchange of promises by him and his father. In particular, the defendants assert, Grant did not give evidence that Bernard promised that on his death or retirement such portion of the assets of the superannuation fund as consisted of units in the Highway Unit Trust would be paid to Bernard and then transferred by Bernard to either the Robertson Family Trust or the Robertson Unit Trust (or perhaps more accurately, the trustees of those two trusts, or of one or other of them). Indeed, the absence of evidence of the giving of mutual promises – and therefore of the making of a contract – is striking. In these circumstances, the defendants submit, Grant has not established any contract which is enforceable by him against his father.

In this context one can compare the version of the “agreement” outlined by Grant in his evidence with that described in the general endorsement on the writ filed on 17 December 2007. The general endorsement posited an agreement between Grant and his father to the effect that the benefits derived by each of them from the superannuation fund “would be held by each of them in trust for the Robertson Group trusts”.[73] There was no suggestion in the case put at trial of Grant promising anything.
[73]General endorsement on Writ filed 17 December 2007, paragraph 26.

I agree that Grant has not established any enforceable contract. After listening carefully to him in the witness box, I have concluded that there was no proper discussion, and no agreement, about who would ultimately benefit from the assets held in the superannuation fund. The beneficiaries would differ according to whether the favoured repository was the Robertson Family Trust or the Robertson Unit Trust or some other trust. And, through his control of Anahaw and Anihidi, Bernard would have the ultimate say in the disposition of the funds in any event: neither the pleadings nor the evidence suggest any restrictions on that ultimate authority. Moreover, neither the pleadings nor the evidence support the conclusion that Grant gave any consideration for any promise that might be enforced by him. Nor, indeed, is there any evidence of any relevant intention in Bernard to confer on Grant a private right enforceable against his father.

But whatever agreement Grant and Bernard may or may not have reached, the reality is that the fate of the assets of the superannuation trust fund is governed by the superannuation trust fund deed. That deed does not contemplate that particular assets would be held on behalf of particular beneficiaries; rather, it provides that they are to be held to the benefit of all the members, who in turn will receive entitlements depending upon their rights. These, in turn, are determined on the basis of the contributions made by them or on their behalf.

Any amendment to that deed would now need the consent of both Rosemary and Neil, who are also trustees. Accordingly, Bernard is not in a position to effect unilaterally such amendments as would be required to enable a transfer of assets from the trustee of the superannuation fund to the trustee of the Robertson Family Trust or the Robertson Unit Trust, still less to satisfy any personal claim upon which Grant might seek to rely.

In my opinion, the plaintiff has failed to sustain his allegation, based upon paragraph 15 of the statement of claim, that it was Bernard’s obligation, imposed by the agreement which he made with his son, to ensure that when he retired or died that part of his superannuation benefit that comprised the Highway units would ultimately be paid either to the Robertson Unit Trust or to the Robertson Family Trust. There was no such agreement. In particular, there was no agreement enforceable by Grant against his father.

The Ferntree Unit Trust Agreement

As the pleadings reveal, it is common ground that in 1996 Bernard and Grant were considering purchasing land, referred to by the parties as “the Bradles land”, at Bacchus Marsh. It is likewise common ground that (a) the two men were then trustees of the Anikau Pty Ltd Superannuation Fund; (b) in that capacity they acquired units in a trust known as the Ferntree Unit Trust, the trustee of which was Bradles Properties Pty Ltd; and (c) that that company purchased the Bradles land, which has since in part been leased for use as a Coles supermarket, and in part had constructed on it a utility room for the Bacchus Marsh Shopping Centre.

Grant alleges that, by agreement between him and Bernard, the Bradles land was purchased by Bradles Properties in its capacity as trustee of the Ferntree Unit Trust on terms that the trustees of the superannuation fund would subscribe for units in that trust, and hold them to Bernard’s account. When he retired they would be transferred in specie to him and he would then in turn transfer them to the Robertson Unit Trust or the Robertson Family Trust. If, he died before he retired, the in specie distribution would be made by the trustees directly.

The plaintiff says that it all began when he suggested to his father that “This property would give us the benefit of playing around with the valuation of the property”. He explained his reasoning in the following terms:

I wanted Bradles [the trustee of the Ferntree Unit Trust] to own it … we were intending to … straddle properties. We had three property owners at Bacchus Marsh all part of the Robertson group. Those three property owners were building a discount department store or a supermarket straddling titles. With one unit holder being Bradles in this case, Bradles could control what the two others, being Beryljay and Ad Astra, who are two other members of the Robertson Group, it could in effect have a veto in what those two other entities could do. By having that veto, the value of that interest increased significantly, and it would permit us to, on my father's death, to take out potential capital gains, unrealised capital gains into the super fund, and then from the super fund into Anahaw.[74]

[74]T.91.

According to Grant, he said to his father “I believe that the ultimate beneficial ownership should rest with the super fund … and [be] owned … ultimately by the Robertson Family Trust”.[75] This, in Grant’s view, would provide significant benefits for the group, with little or no tax payable on potential unrealised gains. A few lines later, the transcript records that, according to the plaintiff, his father then said “Okay, whatever you think is best”, or words to that effect.
[75]T.94.

Grant said that in 2005 he suggested that they formalise the arrangement to which, on his account of events, he and his father had come. His father agreed. The plaintiff also pointed out that, as things presently stood, Rosemary was his father’s sole dependent and that she would receive the whole of the superannuation fund. He says that his father was not aware of this, and said “… if it is the case we have got to change it”. They went to see a group called SMF Funds Management in August 2005. The advice they received was that the existing deed did not permit the sort of transaction that they were envisaging, that they would have to amend it, and that Bernard would have to sign a binding death benefit in relation to the trust arrangement making it clear that he was to hold it for the Robertson Family Trust. As the plaintiff tells the story, in September 2005 he drafted a letter to SMF Funds Management, but as far as he is aware, no further action has been taken. He also understood that a variation to the Anikau superannuation trust has been prepared, but he did not know whether a binding death benefit had been prepared.

Bernard agreed that, at Grant’s suggestion, the purchase of this land became part of his superannuation fund. His evidence was that:

… Grant was the one who would be saying, well, that should be probably, that that becomes the superannuation, and I agreed that it should.[76]

However, he denied that there was any agreement on the side that in reality the investments, although nominally included among the assets of the superannuation fund, would, either then or in the future, be held on the normal family trusts. His evidence was that:
… whatever went into my name, whatever went to Grant's name, whatever went to Rosemary's name … That was their money. I didn't question it, I asked for it and I was quite satisfied with the result. What other things went on, Grant with his fiddling around, trying to save money and those sort of things, I don't know. I preferred so many times that the money goes into my name, stays in my name.[77]

[76]T.384.

[77]T.420.

As with the Highway Trust, in my opinion, the plaintiff has failed to sustain his allegation, based this time on paragraph 24 of the statement of claim, that it was Bernard’s obligation, imposed by an agreement which he made with his son and enforceable by Grant, to ensure that when he retired or died “his superannuation benefit that comprised the Ferntree units” would ultimately be paid either to the Robertson Unit Trust or to the Robertson Family Trust.[78] Equally, there was no such agreement enforceable by Grant against his father. Accordingly, Grant is not under this head in a position successfully to claim damages as a result of a breach of contract.
[78]Statement of claim, paras.24(c) and 25(d).

In his written submissions, the plaintiff purports to set out the pleaded elements of the Ferntree Unit Trust agreement. The submissions do not refer to paragraph 24(f) of the statement of claim, which alleges that the agreement contained a term that “the Bradles land could not be sold or transferred before 2056”. There may be a reason for this omission. That reason may be that there was no evidence to support it. Certainly, the plaintiff called none.

The Bacchus Marsh Shopping Centre

The question of the possible sale of the Bradles land, or the Bacchus Marsh Shopping Centre, is addressed not only in paragraph 24, but also in paragraph 33, of the statement of claim. In paragraph 33, the plaintiff alleges that, at the opening of the Centre on 21 November 1998, he and his father agreed that the land on which the Centre is located would not be sold before 2056. As I observed earlier in this judgment, that plea does not sit well with the allegation, made in paragraph 24, that that very thing was a term of the 1996 agreement, made two years earlier.

No evidence was called to support the allegation made in paragraph 24. The allegation made in paragraph was similarly unsupported. The best the plaintiff could do was to point to statements allegedly made by Bernard that he wanted to make sure (a) that the Centre was not squandered for future generations, and (b) that things could be sorted out so that somehow the property could last for many generations to come. This is not evidence of a promise binding upon Bernard and enforceable by Grant to refrain from selling the Centre until 2056. The claim for damages for breach therefore cannot be sustained. Nor can the claim for injunctive relief.

The Horsewhite Unit Trust Agreement

The Horsewhite agreement involved units in the Horsewhite Unit Trust. It will be remembered that, in paragraph 36 of the pleading, Grant claims that he borrowed $10,000 or thereabouts in August 1982. With it, and with $13,356 of his own money, he purchased 5118 “A” class units in the Trust. By agreement with Anihidi, he allowed that company to register those units in that company’s name. For reasons which the statement of claim does not give, the agreement provided that the income derived from the units would be retained by Anihidi, while Grant remained responsible for servicing the loan. The result, if Grant is correct, was wholly lopsided. According to paragraph 37, he paid out the loan. Meanwhile, Anihidi retained the income – all $200,000 of it. And, despite a demand made by Grant on 29 March 2007, Anihidi has refused to hand the units back.[79]
[79]Statement of claim, paras.37-39.

The evidence given at trial does not correspond with the pleading. Grant says that in August 1982 he and his father agreed in a conversation that Anihidi would acquire 5,118 units in that Trust to be held by it for the benefit of Grant. His evidence was that his father said to him “There are two groups of A class units that are being sold by the Guest Furniture group, do you want to buy half of them?” The plaintiff said he replied: “Yes, but I would have to borrow money from the CBA”. And he added: “I don't have a trust. Because of my potential guarantee liabilities, would it be okay to put those units into Anihidi?” By this he meant, register the units that he was buying in the Horsewhite Unit Trust in Anihidi's name rather than in his own name. He maintains that his father agreed.

Grant also maintains that, on the basis of that agreement, he purchased the units – all 5118 of them. The plaintiff relies on a cheque butt which on its face appears to relate to a cheque for $20,000 drawn on his account, dated 20 August 1982, and payable to Anihidi. It bears the additional notation that the associated cheque was for “H/w units”.[80] The difficulty there is that the vendor of the units was the Guests Furniture group, and Grant cannot explain why he would pay Anihidi for something Grant was purchasing from someone else. The best he could do was contend in cross examination was that he paid Anihidi “[b]ecause Anihidi was going to be the registered legal owner of those units”.[81]
[80]CB.1214.
[81]T.209.

Grant also relies on (a) a notation in the register of the unit holders of the Horsewhite Unit Trust, which under an entry dated 20 August 1982 reads: “Transfer from Wyatt Nominees Pty Ltd” for 5,118 units;[82] (b) on an entry in the Horsewhite Unit Trust transfer journal recording 5118 units being transferred from Wyatt Nominees Pty Ltd to Anihidi;[83] and (c) on evidence that Anihidi was a unit holder of the Horsewhite Unit Trust.[84] On this basis the plaintiff, in the latter half of March 2007, called on Anihidi to transfer those units to him. Anihidi has refused. Grant says that, when he raised the agreement with his father, Bernard replied: “If it is not in writing I am not going to honour it”.
[82]CB.890.
[83]CB.893.
[84]CB.756.

Grant gave no evidence about actually borrowing $10,000, or about contributing $13,356 of his own funds. Nor did he give evidence that he repaid that loan. And in a further indication that evidence and allegation were not in alignment, the plaintiff’s written submissions contend - merely on the basis of the statement of claim, and with no suggestion that the evidence might support it - that “Grant agreed with Anihidi that Anihidi could register the units in Anihidi’s name on terms that: (i) Anihidi would receive any income paid in respect of the units; and (ii) Grant would repay the loan and pay any interest payable in respect of the loan”. The submissions go on to say, again without reference to any evidence, that the term referred to in (ii) above about Grant paying the loan and interest “arises because Grant was the borrower of the funds from the CBA and no agreement was reached with Bernard that any other person would pay those funds”.

Bernard could not recall the conversation with Grant in 1982 or the circumstances in which these units were transferred to Anihidi.[85] He did confirm, however, that given his lack of knowledge of this transaction, he told Grant in 2007 he would not acknowledge his son’s claim to these units in the absence any documentation to support Grant’s interest.[86]
[85]T.382.
[86]T.386.

The defendants submit, and I agree, that the evidence given by Grant does not support the contract alleged in the statement of claim. As I have noted, Grant did not give evidence of an exchange of promises with his father. Nor did his evidence address the allegation that Anihidi would receive the income from those shares, or that he would repay the loan he took out or the interest on it. More particularly, the defendants point out that there was no evidence of an agreement that, through Bernard, Anihidi would transfer the units to Grant on demand. Indeed, the state of the evidence is so uncertain, submit the defendants, that the Court could not conclude that on the balance of probabilities any agreement has been established by Grant. The events occurred so long ago that the Court could not conclude that either father or son had any actual recollection of what was said. Further, there is nothing on the face of the register of members of the Horsewhite Unit Trust to show that Anihidi does not own the units beneficially. This is significant given that, two years later, Grant purchased a parcel of units in his own name, suggesting that he did not have any particular aversion to owning units himself.

The defendants also point to a letter written to Abbott Stillman & Wilson on 28 September 1982 in relation to the transfer of units in the Horsewhite Unit Trust, including this group of units, which carries a notation “NB * Beneficial interest transferred on 25^th February 1982”.[87] This notation suggests, it is submitted, that the beneficial ownership of the units was transferred to Anihidi on that date.
[87]CB.1808. Letter included in Exhibit D4.

During his cross examination on this letter Grant insisted that the notation referred not to the units, but to loan amounts noted in the letter. He pointed to the position of the asterisk on the first page of the letter next to the column heading “Amount of Loan Indebtedness Due to Trust”. He explained:

The loan relates to the 30 June each year the income is determined, and the income distribution or entitlement to income accrues, and is credited to a loan account of each unit holder, because the account[s] weren't finished off at … 30 June '82 there is from my recollection an undertaking given by myself and/or my father to the Guests that as soon as we worked out what their income entitlement for the 30 June '[8]2 was, that we would pay them out that income entitlement.

The reference to “Trust” in the heading on the first page was, he said, a reference to the trust for which the registered unit holder (in this case Wyatt Nominees Pty Ltd) was trustee.

I prefer the explanation put forward by the defendants. The ultimate beneficial interest in income of the 1982 financial year could not be known until that income had been allocated, in accordance with the trust instrument, to the eligible beneficiaries, and adjustments made for amounts received in advance as loans. This could not happen before 30 June 1982. It therefore could not happen on 25 February that year.

Finally, the defendants point out that the cheque butt relied on by Grant refers to a sum of $20,000, while the purchase price of the units was $23,536. Grant maintained that he could not account for the difference without access to the relevant ledgers, which he asserted the defendants had failed to discover.[88] But it is for him to prove his case. If he cannot say how he obtained the funds to pay for property he claims is his, a court cannot but conclude that there is a gap in his evidence.
[88]T.217.

At best, say the defendants, there may be an agreement that Anihidi would hold the units as a bare trustee for Grant. But that has not been pleaded; the claim made by Grant is for common law damages for breach of contract. The existing plea in contract cannot amount to an allegation of trusteeship.

The lack of evidential clarity which bedevils an attempt to ascertain the facts in this case is illustrated by the controversy over the Horsewhite Unit Trust. At one point Grant gave evidence that Anihidi purchased the units on his behalf, and transferred the beneficial ownership of the units to him.[89] A short time later, however, he gave evidence that because he desired to avoid the risk that the units might be available to satisfy some liability he might have had as a guarantor, he did not acquire or retain the beneficial ownership of them. He therefore assigned the full interest in the units to Anihidi for a period of not less than seven years, with the ancillary result that no tax would be payable under the Income Tax Assessment Act. During that seven year period, Grant asserted that he had “only … the right to reclaim back after seven years”.[90] This arrangement, however, was not documented. He agreed that his interest in the units could have been noted in the register of members, but it was not. Rather, “once again I relied upon the relationship between a father and a son”,[91] even though his evidence about his conversation with Bernard made no mention of any discussion or agreement about the basis on which Anihidi would hold the units or about Grant’s right to have the units transferred to him by Anihidi at any point in the future.
[89]T.210.
[90]T.212.
[91]T.213.

Confronted by evidence as incomplete, and as difficult to follow, as this, I conclude that Grant has failed to discharge the burden of proof in relation to the Horsewhite Unit Trust. I am not in a position to hold that the 5118 units in question are held by Anihidi pursuant to an agreement to transfer them, on demand, to him. Indeed, I cannot make any positive finding about the circumstances in which Anihidi acquired the Horsewhite units

Environinvest Agreement

Finally, the plaintiff alleges a breach by the defendants of an agreement involving another family company, the fourth defendant (“Waverley”), in relation to shares held by it in a publicly listed company, Environinvest Limited (“Environinvest”). Grant alleges, by paragraph 43 of the statement of claim, that in 2000 he “agreed with Waverley that that company could register in its name 437,198 shares owned by Grant in the capital of Environinvest” on terms that (a) Waverley would receive any dividends in respect of the shares; and (b) upon demand Waverley would transfer the shares to Grant.[92] The agreement is said to have been oral and was made between Grant and Bernard, both being Waverley directors. Pursuant to that agreement the shares were registered in Waverley’s name and the company received about $5,000 in dividends. Grant demanded the return of the shares on 28 March 2007. Waverley failed to comply. As a result Grant claims loss and damage of approximately $220,000, being the value of the shares.
[92]Statement of Claim, paragraph 43.

Once again, Grant’s evidence is difficult to reconcile with the pleadings. But to begin with the background. He told the Court that Environinvest was established in 1997 by its chairman and managing director, a former State Parliamentarian, the Honourable Roger Pescott, who initially approached Bernard about investing in the company. When Bernard indicated he was not interested, he referred Mr Pescott to Grant and Abbott Stillman & Wilson. The plaintiff says he was appointed to the board as a non-executive member in about 1997 or 1998, and was chairman until about two months before the appointment of an administrator in September 2008. He gave evidence that in about 2000 Mr Pescott arranged, in return for work performed by the plaintiff, to transfer 460,000 fifty cent shares from Mr Pescott’s wife, Caroline Mackenzie. According to the plaintiff, the transfer of these shares was as a result of a “moral obligation” on the part of Mr Pescott because Grant had been attending board meetings and doing unpaid work as a director, including giving Mr Pescott “ideas as to how things should proceed”.[93] The name of the transferee was left for the plaintiff to complete. He said he spoke to his father and said “Look, is it okay if I put Waverley Properties Pty Ltd as the registered owner?” He said his father agreed and signed the transfer. Waverley had often been used by the Robertson group as a nominee entity for purchasing properties. The plaintiff maintains that, similarly, in this instance Waverley was acting purely as nominee. Yet when in late March 2007 the plaintiff called for the transfer of the shares, Waverley refused to comply. Environinvest has now gone into administration.
[93]T.193.

The defendants say that the evidence given by Grant does not establish the contract alleged. He did not give evidence of any agreement reached by him with Bernard that Waverley could retain any income generated by the shares, or that on demand Waverley would transfer the shares to him. In the absence of evidence of a contract, there could be no breach. At best, the defendants submit, Environinvest may hold the shares on a bare trust. Indeed, the defendants in their written submissions acknowledge that Waverley does not claim any beneficial interest in them. However, the submissions continue, Waverley could not transfer the shares to Grant without being satisfied that Grant was their beneficial owner.

Waverley’s position in this regard seems to me to be entirely justified. Its attempts to obtain sufficient information to reach the required level of satisfaction, and to avoid the necessity of joining Waverley as a party to this litigation, came to nothing. Despite its best efforts to resolve this issue, Waverley was frustrated by lack of an appropriate response from the plaintiff.

As early as 21 August 2008 the solicitors for the defendants wrote to Grant’s solicitor in the following terms:

We note that the statement of claim includes an allegation that Waverley Properties Pty Ltd hold shares in Environinvest Limited on trust for your client. We also note that despite making these allegations, Waverley … is not a party to the proceedings.
On our instructions no information has been provided concerning the circumstances or terms on which Waverley … became a shareholder in Environinvest … . In the event that you provide us with information or documents that describe the circumstances and show the source of the consideration for the purchase of the shares in Environinvest … in support of your client’s allegation, it is likely that we will obtain instructions that Waverley … does not claim a beneficial interest in the shares in Environinvest.
Therefore we suggest that you provide this information to us before deciding to delete the allegations from the statement of claim or alternatively making application to add Waverley … as a defendant to the proceedings.
If you do make an application to join Waverley … as a defendant without first providing the information we seek, please be advised that such an application will be opposed and this letter produced in that application as to costs.

No reply was received to this letter. Accordingly, the defendants’ solicitors on 5 February 2009 took the matter up again – this time with the new solicitors for the plaintiff. Included in that letter were the following paragraphs:

You may not be aware that we wrote to your client on 21 August 2008 inviting him to produce evidence in support of his claim and indicating that it might be possible for us to get instructions not to dispute the claim.
…
Your client did not respond at all to that letter of 21 August 2008 and his discovery produced no documents to support his claim.

In their response of 9 February 2009 the plaintiff’s solicitors addressed this issue for the first time. They said:

… we are instructed that your clients are well aware that our client did not pay for the … shares in question. They were a gratis beneficial distribution to him in recognition of work done and services rendered by him for Environinvest. Therefore, no proof of payment as referred to by you exists.

The letter of 9 February 2009 produced a response dated 11 February 2009. In that response the defendants’ solicitors said, in part:

It is not clear to us how this explanation [of the lack of consideration for Grant’s receipt of the shares] is consistent with the agreement your client has alleged, or whether it is intended to constitute a different basis on which your client alleges that he is entitled to an order requiring Waverley to transfer the shares to him.
Our clients deny any agreement as alleged in the statement of claim, and have no knowledge of the arrangements as alleged between your client and Environinvest. However, our clients have no interest in occupying the Court’s time in determining issues in relation to Waverley that can be addressed between the parties. If your client is entitled to beneficial ownership of the Environinvest shares then our clients will not claim these shares for themselves.
We invite your client to provide us with the information and documents that he relies on. …

According to the defendants, Grant’s response to their attempt to establish the validity of his claim was confusing, and inconsistent with the allegations pleaded. Waverley was therefore unable to come to any conclusion about Grant’s entitlement to the shares, despite the fact that it had an open mind, was prepared to accede to Grant’s demands where there was evidence to sustain them, and was anxious to avoid being drawn into this litigation.

The position has since been clarified, although recent enquiries made by Grant’s solicitors with the receiver and manager of Environinvest failed to result in the discovery of the share transfer and share certificates.[94] But, while Ms Mackenzie was not called as a witness, her husband was. Mr Pescott’s evidence was brief. Nevertheless, he confirmed that he arranged for his wife to transfer the shares to or at the direction of Grant. These shares, he said, were offered to Grant and others who had worked in senior positions for Environinvest.[95] I accept this evidence. In my opinion, it does establish that the beneficial ownership in the shares was transferred by Ms Mackenzie to the plaintiff. Waverley accepts that it has no evidence of giving any consideration for them, and no evidence to contradict Grant’s account of how it – or he - came to hold them.
[94]CB.1873; exhibit D4, document F009.
[95]T. 312-313.

In these circumstances, it seems to me that Grant has failed to establish any contract between him and Waverley by the terms of which he is entitled to any contractual relief against that company. I am, however, prepared to grant a declaration that the plaintiff is the beneficial owner of the Environinvest shares in question. For the reasons otherwise set out, the balance of his claims must, however, be dismissed. There will be judgment accordingly. I will hear the parties on the question of the necessary ancillary orders, including orders as to costs.

---

[2010] VSC 54

1 MARCH 2010