Warramunga Farms Pty Ltd as trustee for the Belconnen Trust v Burrows [No 2]

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   WARRAMUNGA FARMS PTY LTD AS TRUSTEE FOR THE BELCONNEN TRUST -v- BURROWS [No 2] [2025] WASC 415
CORAM:   TOTTLE J
HEARD:   10 MARCH - 21 MARCH 2025 & 28 APRIL 2025
DELIVERED          :   1 OCTOBER 2025
FILE NO/S:   CIV 1310 of 2024
BETWEEN:   WARRAMUNGA FARMS PTY LTD AS TRUSTEE FOR THE BELCONNEN TRUST
First Plaintiff/First Defendant by Counterclaim
MICHAEL COLYN REPACHOLI
Second Plaintiff/Second Defendant by Counterclaim
AND
ARTHUR PAUL BURROWS
First Defendant/First Plaintiff by Counterclaim
DOROTHY RUTH MIDDLETON
Second Defendant/Second Plaintiff by Counterclaim
RIVERINA FARMS PTY LTD as trustee of the PALOMAR TRUST
Third Defendant by Counterclaim
SIENNE MABETTE ATRACHE PERRIER
Fourth Defendant by Counterclaim

Catchwords:

Contract - Contract for the sale of land by offer and acceptance - Whether contractual variation effected waiving purchaser's obligation to pay balance of deposit - Whether vendor waived purchaser's obligation to pay balance of deposit - Whether contractual variation effected waiving purchaser's obligation to pay interest on purchase price following delay in settlement - Whether vendor waived purchaser's obligation to pay interest on purchase price following delay in settlement - Whether purchaser ready willing and able to complete settlement of purchase in accordance with the terms of the contract - Turns on own facts

Contract - Legal capacity - Where party seriously unwell in hospital and close to death - Whether party had capacity to waive the benefit of contractual terms - Whether party had capacity to execute lease of land - Turns on own facts

Contract - Non est factum - Where party seriously unwell in hospital and close to death - Where party asked to sign lease - Where party does not sign his name in execution clause - Where party writes words unrelated to his name in execution clause - Turns on own facts

Equity - Undue influence - Whether relationship of ascendancy or influence established - Whether presumption of undue influence established - Whether presumption of undue influence rebutted - Turns on own facts

Equity - Unconscionable conduct - Where party seriously unwell in hospital and close to death asked to sign legal documents - Turns on own facts

Tort - Conversion - Whether conversion of grain, fertiliser and diesel - Turns on own facts

Legislation:

Australian Consumer Law (Cth)

Result:

Action dismissed
Counterclaim partially successful
Declaration sale contract void ab initio

Category: B

Representation:

Counsel:

First Plaintiff/First Defendant by Counterclaim	:	Mr C Slater & Mr C Taylor-Burch
Second Plaintiff/Second Defendant by Counterclaim	:	Mr C Slater & Mr C Taylor-Burch
First Defendant/First Plaintiff by Counterclaim	:	Mr M Cuerden SC & Mr B Primrose
Second Defendant/Second Plaintiff by Counterclaim	:	Mr M Cuerden SC & Mr B Primrose
Third Defendant by Counterclaim	:	Mr C Slater & Mr C Taylor-Burch
Fourth Defendant by Counterclaim	:	Mr C Slater & Mr C Taylor-Burch

Solicitors:

First Plaintiff/First Defendant by Counterclaim	:	Taylor Smart
Second Plaintiff/Second Defendant by Counterclaim	:	Taylor Smart
First Defendant/First Plaintiff by Counterclaim	:	Lotus Legal
Second Defendant/Second Plaintiff by Counterclaim	:	Lotus Legal
Third Defendant by Counterclaim	:	Taylor Smart
Fourth Defendant by Counterclaim	:	Taylor Smart

Cases referred to in decision:

Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 [2022] HCA 38; (2022) 277 CLR 445
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [No 6] [2019] WASC 5
Blacket v Barnett [2017] NSWSC 1032
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Bunnings Group Ltd v CHEP Australia Ltd [2011] NSWCA 342; (2011) 82 NSWLR 420
Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447
Expense Reduction Analysts Group Pty Ltd v Armstong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303
Gibbons v Wright [1954] HCA 17; (1954) 91 CLR 423
Kuwait Airways Corp v Iraqi Airways Co (Nos 4 & 5) [2002] UKHL 19; [2002] 2 A.C. 883
Mercanti v Mercanti [2016] WASCA 206; (2016) 50 WAR 495
Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10; (2010) 41 WAR 353
Petelin v Cullen [1975] HCA 24; (1975) 132 CLR 355
Shephard v Tuanie Paul Galea as executor and trustee of the estate of the Late Joseph Galea [2020] WASCA 152

Table of Contents

Overview

The evidence

Mr Repacholi

Ms Perrier

Ms Middleton

Mr Burrows

Factual findings

Mr Pond

The parties

The land

Leasing arrangements with Mr Peter Repacholi

August 2021 discussion

March 2022

Sale of Pinnacles West

19 January 2023

20 January 2023

22 January 2023

24 January 2023 - Corboules lease

2 February 2023

9 and 10 February 2023

11 February 2023

Establishment of the Belconnen Trust and preparation of sale contract

Arranging an appointment for Mr Pond to consult a lawyer regarding his will

The sale contract

Balance of the deposit

Lease of Coralinga

Mr Pond's handwritten will

Appointment of a settlement agent

Ms Perrier sets up email account for Mr Pond

Meeting with Mr Pond's accountant

Ms Perrier assists Mr Pond with his accounting records

Mr Pond's consultation with his general medical practitioner

Finance approval

Digital verification of Mr Pond's identity

Riverina Farms incorporated

Settlement documents

Ms Perrier's concerns about Mr Pond's sisters

Attendances on DFG Legal 20 April 2023

The delay in settlement and waiver of interest

Ms Perrier email to DFG Legal 24 May 2023

Mr Pond signs his will

Mr Pond signs enduring power of attorney

Ms Perrier's preparation of draft leases

Mr Pond's condition deteriorates

Mr Pond's admission to hospital

Ms Perrier communications with settlement agents

Ms Perrier visits Mr Pond in hospital

Mr Pond's legal capacity on 1 June 2023

Mr Pond dies

Deed of family arrangement executed

Communications between Ms Perrier and Mr Burrows - June 2023

The preliminary stages of the dispute

The value of Belconnen and Pinnacles East in February 2023

The plaintiff's pleaded case

Disposition

The defences

Undue influence

The pleaded cases

Undue influence - applicable principles

The opposing arguments

Disposition

The defendants' case on mistake and misleading or deceptive conduct

The defendants' non est factum case

The defendants' unconscionable conduct case

The pleaded case

Applicable legal principles

Disposition

The counterclaim

Claim for possession

Conversion claims

The diesel claim

The fertiliser claim

The grain claim

Conclusion and orders

Appendix 1

TOTTLE J:

Overview

In February 2023 Mr Keith Pond, an elderly farmer, signed a contract for the sale of two areas of contiguous farmland known as Belconnen and Pinnacles East in the Kondinin district of the Wheatbelt. The purchaser was the first plaintiff (Warramunga), a company controlled by the second plaintiff (Mr Repacholi) and his partner, Ms Sienne Perrier. Ms Perrier was a friend of Mr Pond and was a person in whom he reposed trust and confidence.
Warramunga contends the sale of Belconnen and Pinnacles East was part of a larger transaction that involved two other elements, the first was the grant by Mr Pond to Mr Repacholi of a three-year lease over other farms owned by him and the second was the finalisation of arrangements for Mr Repacholi to take over the running of his father's farming interests. These arrangements were part of a succession plan for the Repacholi family's farming interests that culminated in the execution of a deed of family arrangement in June 2023.
Settlement of the sale contract had not taken place by the time Mr Pond died on 2 June 2023. Warramunga has sued the defendants (the executors of Mr Pond's estate) for declaratory relief, specific performance and damages in relation to the sale contract and Mr Repacholi seeks a declaration as to the existence of the lease and specific performance of it.
In addition to the close friendship the plaintiffs admit existed between Ms Perrier and Mr Pond, the transactions were unusual for other reasons. First, the sale price of Belconnen and Pinnacles East was significantly below market value. Second, at Ms Perrier's request Mr Pond signed a document prepared by her waiving his contractual entitlement to payment of all but $10,000 of the $200,000 deposit payable under the sale contract. Third, settlement did not take place on the contractual settlement date and Mr Pond signed a document, again prepared by Ms Perrier, waiving his entitlement to any interest or fees payable because of the failure to settle on the agreed date. Fourth, the waiver document, a lease and a transfer of land were provided to Mr Pond for his signature on 1 June 2023 when he was in hospital, seriously unwell and close to death. Mr Pond signed his own name in shaky handwriting on the waiver document and the transfer of land but instead of signing his name on the lease he wrote the words 'To whom it may concern'.
The defendants challenge the validity of the sale contract and the lease on several grounds. These include contentions to the following effect: the relationship between Ms Perrier and Mr Pond when the sale contract was made was such as to give rise to a presumption of undue influence that was not rebutted and the sale contract was void ab initio; Mr Pond entered the sale contract in a mistaken belief about the extent of the land that was being sold; Mr Pond lacked capacity to waive his entitlement to interest and to enter the lease; Mr Pond believed the lease was something radically different from what it was in circumstances that engaged the doctrine of non est factum; and Ms Perrier's conduct in presenting the lease to Mr Pond for his signature when he was in hospital, seriously unwell and close to death constituted unconscionable conduct in equity.
It is helpful to provide some exposition of the contention that Mr Pond entered the sale contract in a mistaken belief about the extent of the land being sold. The first page of the sale contract described the property being sold simply by reference to the address 'Belconnen, Nambadilling Road, Kondinin'. Annexure B to the sale contract identified the land being sold by reference to the title details of eight lots that made up Belconnen and Pinnacles East. The defendants' case was that Mr Pond referred to the lots by names. They contend Mr Pond referred to three lots as 'Belconnen off Nambadilling' or 'Belconnen West', three lots as 'Belconnen off Bendering Hall' or 'Belconnen East' and two lots as 'Pinnacles East'. The defendants contend Mr Pond mistakenly thought the land he was selling was limited to the three lots that he described as Belconnen West, alternatively the Belconnen West lots and the three lots he described as Belconnen East but in either case the land did not include Pinnacles East. The defendants plead that Mr Pond was induced into thinking the lots being sold were those he described as Belconnen West or Belconnen West and Belconnen East because of the way the property was described on the first page of the sale contract. In this respect the defendants allege misleading or deceptive conduct contrary to s 18(1) of the Australian Consumer Law (Cth).
Other than when it is necessary to distinguish between them I will refer to all the lots identified in annexure B to the sale contract collectively as 'Belconnen and Pinnacles East'.
The farms Mr Repacholi contends were the subject of the lease granted to him were known as Woodhill (also known as Pegrums), Lowlands and Coralinga.
The defendants counterclaim for declaratory relief giving effect to their contentions that the sale contract is void. They seek vacant possession of all the farms. They also claim damages against Mr Repacholi and the third defendant by counterclaim (Riverina Farms) for conversion of grain, diesel and fertiliser belonging to Mr Pond.
The principal issues may be summarised as follows:
(a)When the sale contract was executed was the relationship between Mr Pond and Ms Perrier such as to give rise to a presumption of undue influence and has the presumption been rebutted?[1]
[1] Further amended defence and counterclaim filed 28 February 2025 (defence and counterclaim) [16] ‑ [20].
(b)Did Mr Pond execute the sale contract under a mistake of fact as to the extent of the land that was the subject of the sale?[2]
[2] Defence and counterclaim [21] - [27].
(c)Did Mr Pond sign a document on 1 June 2023 the effect of which was either to vary the sale contract to relieve Warramunga of the requirement to pay interest to Mr Pond payable by reason of a delay in settlement (no fees were payable because of the delay) or to waive Mr Pond's entitlement to interest?[3]
(d)If Mr Pond did sign a waiver of the nature described to in the preceding subparagraph, did he lack the capacity to do so and is the document therefore void and of no force or effect?[4]
(e)Has Warramunga been ready, willing and able to complete settlement of the sale contract at any time since 12 May 2023?[5]
(f)Did Mr Pond execute a lease on 1 June 2023 and, if so, did he lack capacity to do so?[6]
(g)Is the lease of no force and effect by reason of the doctrine of non est factum?[7]

(h)In providing the lease to Mr Pond for his signature and obtaining his writing under the execution clause did Ms Perrier act unconscionably?[8]
(i)Did Mr Repacholi, Warramunga or Riverina Farms convert Mr Pond's diesel, fertiliser or grain?[9]
[3] Further amended statement of claim (statement of claim) [12], defence and counterclaim [12].
[4] Statement of claim [12], defence and counterclaim [12].
[5] Defence and counterclaim [15].
[6] Defence and counterclaim [28].
[7] Defence and counterclaim [28A].
[8] Defence and counterclaim [29] - [33].
[9] Defence and counterclaim [74] - [99].

My conclusions on the principal issues are as follows:
(a)When Mr Pond signed the sale contract the relationship between him and Ms Perrier was one in which she was in a position of ascendancy and influence and he occupied a position of trust and dependence such that a presumption of undue influence arose. The presumption was not rebutted. The defendants are entitled to have the sale contract set aside.
(b)Mr Pond was not mistaken as to the extent of the land the subject of the sale contract.
(c)Mr Pond signed the waiver document on 1 June 2023 purporting to waive interest on the purchase price but he did so at a time when he had no legal capacity and the waiver is of no effect.
(d)Warramunga has not been ready willing and able to complete settlement of the sale contract in accordance with its terms at any time from 12 May 2023.
(e)The writing by Mr Pond of the words 'To whom it may concern' on the lease document on 1 June 2023 was not effective at law to bind him to the terms of the lease because he lacked the legal capacity to enter into the lease and, separately, because of the operation of the doctrine of non est factum.
(f)Ms Perrier's conduct in seeking to obtain Mr Pond's signature to the lease document on 1 June 2023 was unconscionable and constituted a further basis on which to conclude the lease should be set aside.
(g)The defendants' claims in conversion have not been established for the reasons given in detail later.

The evidence

Oral evidence was called from six lay witnesses and four expert witnesses. The expert witnesses were two valuers, Mr Brian Miles and Mr Ross Lambert, and two medical practitioners, Dr Peter Maguire and Dr Roger Clarnette. Both medical practitioners were called by the defendants. Dr Maguire was one of the medical practitioners responsible for Mr Pond's care when he was admitted to Narrogin hospital on 1 June 2023. In addition to his opinion evidence Dr Maguire gave evidence about factual matters. Dr Clarnette's evidence was limited to opinion evidence.
In Belgravia Nominees Pty Ltd v Lowe Pty Ltd [No 6],[10] drawing on the judgment of Hallen J in Blacket v Barnett,[11] I made some observations about the approach to be adopted to evidence about conversations with persons who had died and conversations that had taken place some years before trial. Although in this case the elapse of time between the relevant conversations and trial was not as lengthy as it was in Belgravia the observations are relevant to the circumstances of this case and I reproduce them below:[12]
[10] Belgravia Nominees Pty Ltd v Lowe Pty Ltd [No 6] [2019] WASC 5.
[11] Blacket v Barnett [2017] NSWSC 1032 [243] - [257].
[12] Belgravia Nominees Pty Ltd v Lowe Pty Ltd [No 6] [26].
(a)Evidence of conversations with a person who has subsequently died should be subjected to careful scrutiny as the deceased is not available at the hearing to admit, or directly deny, the specific allegations made by the witness giving evidence of those conversations.
(b)The need for careful scrutiny may be greater where the person giving evidence of the conversations has a self-interest.
(c)The court will treat uncorroborated evidence of communications by persons who have subsequently died with considerable caution; whilst there is no absolute legal requirement for it the court should look for some corroboration.
(d)Where evidence of a conversation with a person who has subsequently died is given, the court can never be certain it knows all the circumstances, and more often than not one may be sure that the court knows few of them. It is impossible to hear what the other party to the conversation, the deceased, says about it. There is a significant risk of reconstruction. There are dangers in relying on evidence of what may have been a casual observation made to a person who at the time had no reason to remember the exact words used. In the light of these concerns, a substantial burden is placed upon a party whose case relies upon such evidence.
(e)In cases in which oral statements are relied upon to establish agreements or misrepresentations the words spoken must be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that the statements had contractual effect or were misleading. The court must recognise that human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed.
(f)The credibility of a witness and his, or her, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case. Reliance on contemporaneous documents is preferable in cases involving events which occurred long before the litigation. Often the only safe course in such cases is to place primary emphasis on the objective factual surrounding material and the inherent commercial probabilities and the contemporaneous documents. Documents will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation, this is particularly so when the documents are accepted as genuine and were prepared by a person with no reason to misstate the facts in the documents.
(g)Contemporaneous statements and documents are likely to be a more accurate reflection of events than later statements when false memories can intrude, especially when the person recalling events has tried to assemble recollections logically so that what happened can have some rational explanation in the person's mind - memories are fluid and malleable being constantly rewritten whenever they are retrieved.
(h)The court must be alive to reality that the spoken word is capable of bearing different and potentially opposed meanings depending on subtle differences of nuance and emphasis. An appreciation of the significance of nuance and emphasis must necessarily be considerably diminished if there is a significant elapse of time between the date when the conversation took place and the hearing at which the evidence of that conversation is given.
(i)The court must recognise that:
Memory is a constructive and reconstructive process. What is remembered about an event is shaped by how that event was experienced, by conditions prevailing during attempts to remember, and by events occurring between the experience and the attempted remembering. Memories can be altered, deleted and created by events that occur during and after the time of encoding, during the period of storage, and during any attempts at retrieval.
[citations omitted]

For the reasons given below I have reservations about the reliability of the evidence of each of the principal witnesses of fact, Mr Repacholi, Ms Perrier and the defendants, Ms Dorothy Ruth Middleton and Mr Paul Burrows. Conformably with the observations made in Belgravia wherever possible I have relied on contemporaneous documents and inferences drawn from those documents for the purposes of making factual findings. The documentary evidence comprised a twelve-volume electronic trial book supplemented during the trial by the tender of several paper documents.

Mr Repacholi

Mr Repacholi's recollection of meetings and the sequence of events was poor but he did not pretend otherwise. He was not involved with the documentation or the logistics of the transactions. His answer to many questions in cross-examination was 'I guess so'[13] which I took as an indication of a general lack of confidence in his own recollection of events.
[13] See for example ts 207, 233, 234, 238, 245, 253, 268, 269, 271, 279, 315, 322, 335.
There are two issues that bear adversely on Mr Repacholi's credit. First, Mr Repacholi permitted information to be given to the expert valuer instructed by the plaintiffs which he acknowledged in cross-examination was incorrect.[14] Mr Repacholi's initial response in cross-examination that the provision of the incorrect information involved a 'typo' was unsatisfactory as was his later explanation that the information was sent by email by Ms Perrier and he had not had an opportunity to check what she had written.[15] Second, in proceedings commenced by Warramunga to extend the operation of caveats lodged against the titles of Belconnen Mr Repacholi swore an affidavit in which he deposed Ms Perrier visited Mr Pond and Ms Middleton on 16 February 2023 to discuss signing the sale contract and 'a written lease which had been prepared'.[16] No 'written lease' had been prepared by 16 February 2023 and Mr Repacholi's explanation of why he deposed to such a document having been prepared by 16 February 2023 was because that is what Ms Perrier had told him.[17]
[14] ts 262 - 278, 339 - 343.
[15] ts 341 - 342, 356 - 357.
[16] Exhibit P1, TB 157.
[17] ts 315 - 317.
In closing submissions the defendants raised a further criticism of Mr Repacholi's credit.[18] This arose from Mr Repacholi's evidence about his use of superphosphate belonging to Mr Pond. In brief, in cross-examination Mr Repacholi said in March 2023 he had been given permission by Mr Pond to use superphosphate in the fertiliser shed on Belconnen. He had not given this evidence previously nor had the proposition Mr Pond had given Mr Repacholi this permission been raised in opening by the plaintiffs' counsel when addressing the defendants' counterclaim in respect of the conversion of fertiliser. For the reasons given later I have found the superphosphate belonging to Mr Pond that Mr Repacholi said he had been given permission to use and had used was not the superphosphate which was the subject of the defendants' counterclaim,[19] and which was addressed in the plaintiffs' reply and defence to counterclaim.[20] I have also found that in March 2023 Mr Pond gave Mr Repacholi permission to use the superphosphate that was then in the fertiliser shed on Belconnen. Thus, Mr Repacholi's evidence about his use of this superphosphate was not relevant to the counterclaim though it was surprising Mr Repacholi had not given any prior indication of his evidence about the permission he had received from Mr Pond in March 2023. I do not accept this is a matter that bears adversely on his credit.
[18] Defendant's closing submissions [14].
[19] Defence and counterclaim [92] - [100].
[20] Further amended reply and defence to counterclaim filed 18 January 2025.
I have approached Mr Repacholi's evidence with care. Generally I have not accepted it unless it is supported by other evidence or the inherent probabilities.

Ms Perrier

Ms Perrier gave evidence over five days. She found the process of giving evidence difficult and stressful. Her body language and mannerisms in cross-examination expressed frustration on her part. She was very demonstrative, frequently shaking her head as questions were being asked and at other times throwing her head back seemingly in frustration.
Both in evidence-in-chief and in cross-examination Ms Perrier gave long answers replete with unnecessary detail. As the defendant's senior counsel observed, her answers created the impression she was being asked to consider the events for the first time. My assessment is that Ms Perrier's recollection of events was poor. Many of her answers were qualified by the phrase 'I feel like'.[21] While she remembered the overall sequence of events, she confused and conflated the detail of meetings and conversations, particularly her conversations with Mr Pond. My assessment is that much of Ms Perrier's evidence was her reconstruction of what she thought had taken place. Not surprisingly Ms Perrier's reconstruction favoured the interests of Warramunga and Mr Repacholi. That said, I do not doubt that Ms Perrier genuinely liked and cared for Mr Pond.
[21] See for example ts 539, 549, 577, 581, 590, 591, 609, 610, 611, 632, 652, 654, 666, 667, 700, 723, 737, 739, 749 etc.
My impression of Ms Perrier based on her account of events, her contemporaneous communications and her demeanour while giving evidence is that she has a determined 'can-do' and forceful personality. I have the strong impression she felt she was, and indeed was, under a lot of pressure to ensure the transactions with Mr Pond proceeded as they were critical to the succession plan on which her and Mr Repacholi's future depended.
Text messages and emails written contemporaneously with events to which they related provide support for some aspects of Ms Perrier's evidence but they undermine other aspects.
In closing submissions the defendants made several critical observations about Ms Perrier's credit.[22] There is force in those observations but for present purposes it is necessary to refer to only one matter to which reference has already been made, the plaintiffs claim a written lease had been prepared and was discussed on 16 February 2023. In an affidavit sworn on 8 March 2024 for the purposes of Warramunga's application to extend the operation of caveats lodged against the titles to the land the subject of the sale contract, Ms Perrier made statements to the effect that at a meeting on 16 February 2023 she had a lease document which she discussed with Mr Pond and Ms Middleton and that was the document which Mr Pond signed on 1 June 2023.[23] In cross‑examination she accepted the lease she said was signed by Mr Pond was 'definitely not' in existence on 16 February 2023.[24] Ms Perrier was unable to give a satisfactory explanation for the incorrect statement in her affidavit of 8 March 2024.
[22] Defendants' closing submissions [18] - [25].
[23] Affidavit of Ms Sienne Perrier sworn on 8 March 2024 [17] - [24].
[24] ts 583.
With limited exceptions I have not accepted Ms Perrier's evidence unless it is supported by other evidence or the inherent probabilities.

Ms Middleton

Ms Middleton gave her evidence in a straightforward manner. In cross‑examination she answered the questions she was asked directly and without any evasion. My assessment is that she gave her evidence honestly but she had a poor recollection of many of the meetings and conversations. In some instances I think her recollection was mistaken.

Mr Burrows

Mr Burrows gave his evidence-in-chief and much of his evidence in cross-examination in a straightforward manner, however, as the cross‑examination proceeded he showed signs of frustration and, in the words of the defendants' senior counsel, he became 'combative and argumentative'.[25]
[25] Defendants' closing submissions [27].
Mr Burrows was keen to convey his unfavourable view of Mr Repacholi and Ms Perrier and their conduct. Mr Burrows displayed a tendency to be an advocate in his own cause rather than simply give his evidence. This gives me cause for concern about the reliability of Mr Burrows' evidence.

Factual findings

Mr Pond

Mr Pond died at the age of 80 years. He worked as a farmer in the Kondinin district for his entire life. In the years preceding his death he suffered from ill health. In February 2020 he had a surgical procedure for a prostate problem. He was left with a chronic and debilitating health difficulty.[26] This resulted in a short stay in hospital in August 2021.[27] He continued to live and work on his farms.[28]
[26] Exhibit P1, TB 120.
[27] Exhibit P1, TB 120.
[28] ts 1041, 1200.
Although many years ago Mr Pond had run a piggery on Coralinga, over the last two decades his farming activities were entirely arable. The reason being, as Mr Burrows explained, Mr Pond disliked sheep.[29] Mr Pond adopted what is regarded as a traditional farming method known as fallow farming. This is to be contrasted with a more modern method of arable farming known as direct drilling. Mr Pond was not comfortable with modern communication technology and although at one time he had a mobile phone he found he could not manage it.[30] He did not have a computer. He did not have an email account until one was opened for him by Ms Perrier.[31]

The parties

[29] ts 1034, 1166.

[30] ts 1024.

[31] ts 467, 470 - 472.

Ms Middleton was known by her second name, Ruth. She and Mr Pond were in a de facto relationship for forty years. Ms Middleton's description of her relationship with Mr Pond was that it was a very good one.[32] There is no reason to doubt this characterisation. She and Mr Pond divided their time between three houses: a house on Coralinga, a house on Lowlands and their home in Kelmscott.[33] When she was younger Ms Middleton worked on the farms with Mr Pond. Mr Pond was responsible for the management of their day-to-day finances.[34] Ms Middleton had an interest in alternative medicine and she described her engagement with it as 'practising personal growth'.[35]
[32] ts 1023.
[33] ts 1025.
[34] ts 1024.
[35] ts 1023.
Mr Burrows is Ms Middleton's son. He began living with Mr Pond when he was eight years of age and worked with Mr Pond on his farms as he was growing up and into his early adult years.[36] He also worked as a truck driver until 2014 when he was injured in a work accident. He moved back to live with Ms Middleton and Mr Pond on Lowlands in 2015. After recovering he worked with Mr Pond until the seeding season in 2021. He then returned to truck driving.[37]
[36] ts 1163 - 1165.
[37] ts 1164 - 1165.
Other than for a period of five years when he worked for Western Power Mr Repacholi worked as a farmer. He described himself as a fourth-generation farmer.[38] Until 2023 he had always worked in the farming business run by his father, Mr Peter Repacholi. That business was known as PJ Repacholi & Sons.
[38] ts 370.
Ms Perrier and Mr Repacholi are de facto spouses. Before her relationship with Mr Repacholi, Ms Perrier worked in the mining industry. She had studied for a law degree but when she fell pregnant with her first child she was unable to complete her legal studies.[39] Ms Perrier and Mr Repacholi live with their two children in Kondinin.
[39] ts 601.
Ms Perrier and Ms Middleton gave different accounts of when they first met each other.[40] It is unnecessary to resolve the differences in their evidence about this.
[40] ts 381, 1043.
Warramunga was incorporated by Mr Repacholi and Ms Perrier to hold Belconnen and Pinnacles East on trust for the Belconnen Trust, a trust established by them.
Riverina Farms is a company controlled by Mr Repacholi and Ms Perrier. It was incorporated to replace Komtar Pty Ltd as the trustee of a trust known as The Palomar Trust. Komtar Pty Ltd was controlled by Mr Peter Repacholi and was the company through which the farming business PJ Repacholi & Sons was conducted on behalf of The Palomar Trust.[41] Riverina Farms was the company through which Mr Repacholi and Ms Perrier's farming operations were conducted from 9 June 2023.[42]

The land

[41] Exhibit P1, TB 97.

[42] Defence and counterclaim [55(a)] and reply and defence to counterclaim [34], ts 371.

The land with which this action is concerned is depicted on the map at appendix 1. Nambadilling Road runs in a north-west to south-east direction diagonally across the centre of the area depicted on the map. Belconnen West and Belconnen East comprise the areas marked B1 to B9, which are to the east of Nambadilling Road. Bendering Hall Road North runs along the eastern border of the area marked B9. There are two houses located directly south of the area marked B5 and between the areas marked B6 and B8. There are two sheds in roughly the same area. One is a large 'super shed' used for storing fertiliser and the other is a smaller shed used for storing machinery. The arable area of Belconnen East and Belconnen West is approximately 2,000 acres.
Pinnacles East comprises the areas marked PE1 to PE5. There is no farming infrastructure on Pinnacles East. The arable area of Pinnacles East is approximately 1,000 acres.
Pinnacles West comprises the areas marked PW1 to PW4. There is no farming infrastructure on Pinnacles West. The arable area of Pinnacles West is approximately 1,000 acres. An issue in the proceedings was whether Pinnacles West would be landlocked if Pinnacles East was sold. The defendants' position was that selling Pinnacles East without securing alternative access would result in Pinnacles West becoming landlocked.[43] The plaintiffs' position, as explained by Mr Repacholi's evidence,[44] was that Pinnacles West would become landlocked if Belconnen was sold because there was no access for large agricultural machinery from Pinnacles East onto Pinnacles West and the only access to Pinnacles West was over Belconnen.[45] I found Mr Repacholi's explanation of the difficulties in gaining access to Pinnacles West with large agricultural machinery convincing. I find that access to Pinnacles West could only be obtained through Belconnen and thus, if Belconnen was sold Pinnacles West would be landlocked in terms of access with large agricultural machinery even if ownership of Pinnacles East was retained.
[43] ts 1115.
[44] ts 281, 285 - 286, 330 - 332.
[45] ts 281.
Ms Perrier's evidence was that Mr Pond sometimes referred to Belconnen East, Belconnen West and Pinnacles East and Pinnacles West as 'Mortons' or 'the Morton farm'. Ms Middleton's evidence was the only areas Mr Pond referred to as Mortons were Belconnen East and Belconnen West and he referred to Pinnacles East and Pinnacles West as 'Frank Marshall's property'.[46] Ms Middleton's evidence of how Mr Pond referred to the different areas of land is inherently more likely to be accurate but I cannot exclude the possibility that in his discussions with Ms Perrier and Mr Repacholi, Mr Pond may have used the name Mortons as connoting Belconnen, Pinnacles East and Pinnacles West.
[46] ts 726, 728, 1027.
Lowlands comprises the areas marked L1 to L7. There is a house on Lowlands in which Mr Pond and Ms Middleton lived from time to time. There are also a number of sheds on Lowlands. The legal title to Lowlands was in Mr Pond's name but he referred to it in terms that suggested he regarded it as belonging to Ms Middleton.[47] My impression is that when Ms Middleton came to the farms she and Mr Pond lived at Lowlands.
[47] Exhibit P1, TB 15, Exhibit P9.
Woodhill comprises the area marked Peg1. There is no farming infrastructure on Woodhill.
Coralinga comprises the areas marked C1 to C5. Coralinga was Mr Pond's home farm. When Ms Middleton was in Kelmscott Mr Pond stayed at Coralinga. There were two houses, 12 grain silos, a shed and two above ground fuel tanks on Coralinga. The grain silos were used to store grain harvested from all Mr Pond's farms.
Mr Pond also owned approximately 1,090 acres of arable land comprising two areas described by him as the 'Bonds Road block' and 'Hazeldean'. This land was leased to Mr Kim Courboules.

Leasing arrangements with Mr Peter Repacholi

In 2019 Mr Peter Repacholi leased the areas of Belconnen marked B2 and B6 from Mr Pond. In subsequent years the areas leased to Mr Peter Repacholi increased and included Pinnacles East and Pinnacles West. In 2022 Mr Peter Repacholi leased all but 142 hectares of Belconnen, Pinnacles East and Pinnacles West.[48]

August 2021 discussion

[48] ts 248 - 249.

A discussion took place between Mr Peter Repacholi, Mr Repacholi, Ms Perrier and Mr Pond on 21 August 2021 about a potential sale of some of Mr Pond's land. Ms Triinu Hodakov, a backpacker who was living in one of the houses on Coralinga was also present. The meeting took place in the kitchen of Mr Pond's house on Coralinga. The discussion was recorded on Mr Repacholi's mobile phone and a transcript of the recording was tendered.[49] Ms Perrier was a major contributor to the discussion.
[49] Exhibit P1, TB 8 and Exhibit P2.
In the discussion Mr Pond expressed his concern about the interest he was paying on bank finance of approximately $480,000 secured by a mortgage over his land. Mr Repacholi and Ms Perrier told Mr Pond they were interested in purchasing Belconnen, by which they meant Belconnen East and Belconnen West, and Pinnacles, by which they meant Pinnacles East and Pinnacles West. They discussed the possibility of buying the land in stages. They expressed a preference for purchasing Belconnen first and then purchasing Pinnacles. The houses on Belconnen and 'the super shed' were features that made it attractive to Mr Repacholi and Ms Perrier to buy first. Also, Mr Repacholi expressed a concern that if they purchased Pinnacles before Belconnen Pinnacles might become landlocked in the event Belconnen was sold to someone else.[50]
[50] ts 285 - 286, 291 - 292; Exhibit P1, TB 8.
The possibility of purchasing Belconnen on a vendor finance basis was discussed but that possibility was not pursued when Ms Perrier and Mr Repacholi appreciated that Belconnen was the subject of a mortgage.
There was discussion about the value of the land. There was general agreement that the market for agricultural land was rising.[51] Mr Pond expressed the view that Belconnen was worth $700 per arable acre and Pinnacles was worth $600 per arable acre. Ms Perrier expressed her view that Mr Pond's valuations were unrealistically high and that she and Mr Repacholi would not be able to obtain bank finance to purchase the land at the prices mentioned by Mr Pond.
[51] ts 294.
The discussion about what land Mr Repacholi and Ms Perrier wanted to purchase and at what price effectively concluded as follows:
KEITH POND: Just send me some stuff, you know, and I'll have a look at it and so give it to Ruth, and we're talking Belconnen as a sale deal probably now, are we, more so than Pinnacles?
SIENNE PERRIER: Well, how about we do both?
KEITH POND: Yeah. All right.
SIENNE PERRIER: And we'll still go away and do both and then, you know, you can see what works best for you, you know, and you guys can see what works best for you, you know, and if there's something you're not happy with, then you just let us know and then we can see if we can -
MICHAEL REPACHOLI : Fix it.
KEITH POND: Yeah, and I'll look at figures and what you reckon it's worth and different things and –
Following the meeting on 21 August 2021 Mr Repacholi and Ms Perrier consulted Mr Pierre Maartens, a farm adviser with a consultancy business known as Planfarm, to assist them with the succession plan and the purchase of Mr Pond's farms.[52]

March 2022

[52] ts 187.

On 5 March 2022 Mr Pond sent a letter to Mr Peter Repacholi in which he discussed their leasing arrangements and a possible sale 'Re the Morton farm now or down the track.' The letter is reproduced below:[53]
[53] Exhibit P1, TB 12.
C/O Peter,
Wanted to get something organised for the coming season re either something on the lease or perhaps some arrangement or perhaps a sale Re the Morton farm now or down the track.
The price of lease has to increase I've discussed this more or less last year I have to have an increase to approximately thirty dollars for good reasonable land per acre Which is a lot less than round Corrigin and further out if you want to look at values.
There could be some land that could be discounted due to some reason due to second class land for one reason or another.
Another condition I have to more or less arrange is again like Corrigin to have a one payment up front like with Kim Courboules has been doing for several years with us in the past, just in case things could deteriorate re the Russian problem or a drought situation in the coming season.
Our problem here is we have had to more or less wait till the end of the year to get squared out and our Bank rate is still over six percent. We have to pay this as we go unfortunately.
Unfortunately costs your end had a big increase as well you have to cope with that too
Trying to say twenty dollar land is history around WA that's why we have to make something out of the lease or its not worth having.
The only discount I can suggest is I could let you crop lupins at say fifteen dollars per acre to put some nutrition in the soil to keep this at the right price as far as you guys stand.
Especially on any hungry light soil concerned.
Peter whats got to happen is we need one payment up front March 22 "unless you decide to buy the place perhaps". The super sheds mine for this year due to tarps that leak water ect.
Look at it all for the future Regards for now – Keith

Sale of Pinnacles West

By agreements made in September and October 2022 and varied in November 2022, Mr Pond agreed to sell Pinnacles West to his sister Ms June Cahill.[54] The sale price was $690,950. This was calculated by multiplying the number of arable acres sold, 1,063 by $650.

19 January 2023

[54] Exhibit P1, TB 179, TB 24.

On Wednesday 19 January 2023 Mr Repacholi, Ms Perrier and Mr Maartens met Mr Peter Repacholi and his wife, Ms Angela Fairhall, their solicitor Mr Matthew Wallis, their accountant Mr Sam O'Driscoll and Mr Repacholi's brother.[55] Among other matters they discussed the succession plan. At the end of the meeting Mr Repacholi and Ms Perrier thought they had made enough progress to enable them to talk to Mr Pond again about buying his farms. Ms Perrier described her understanding of the position as follows:[56]
So at the time, Michael, myself and Pierre believed that the action decision from the meeting was that Michael and I would go to see Mr Pond, and we would – all up, Pinnacles and Belconnen were approximately 4000 acres. Sorry. Pinnacles East, West, and Belconnen were approximately 4000 acres…Pierre had floated the idea that – during the meeting, that we could buy two now and potentially two later, because that was the – what he was floating with the banks, and I believe he had got some type of agreement from the bank at that point, before the meeting. So the outcome was Peter would hand over the farm to Michael, or – or complete farm succession that year. Michael would have a discussion with Mr Pond about buying two plus two, or 2000 acres, and then another 2000 acres. And, I mean, that was kind of the crux of it, and – and we would continue leasing the land that we were already leasing from Mr Pond.
[55] Exhibit P1, TB 19; ts 188 - 189, 391 - 392.
[56] ts 392.
Mr Repacholi explained that what he referred to as 'the family agreement' needed to be in place so he could borrow the money required to purchase the farms from Mr Pond.[57]

20 January 2023

[57] ts 187, 371.

On Thursday 20 January 2023 Mr Repacholi and Ms Perrier went to see Mr Pond at Coralinga. He was not there but they called Ms Middleton's mobile number and spoke to him.[58] Mr Pond told them that he had sold Pinnacles West to his sister because he was in 'bank trouble'. They arranged to meet Mr Pond at Coralinga on 22 January 2023. After the telephone conversation Mr Repacholi sent the following text message to Mr Maartens:[59]
[58] ts 392.
[59] Exhibit P1, TB 20.
Mr Repacholi's evidence was that in the 20 January 2023 conversation Mr Pond said he could still buy Belconnen and Pinnacles East and he thought there was a discussion about price and that Mr Pond had 'suggested $690 per arable acre'.[60] It is likely that the possibility of Mr Repacholi buying Belconnen and Pinnacles East was discussed in the telephone call but I think it unlikely that Mr Pond suggested a price of $690 an acre for two reasons. First, because if he had done so Mr Repacholi would have mentioned this in his text message to Mr Maartens and second, because when Mr Repacholi and Ms Perrier met Mr Pond on 22 January 2023, Mr Pond said he wanted $950 an acre.[61]

22 January 2023

[60] ts 189.

[61] Exhibit P1, TB 25; ts 393.

Mr Repacholi and Ms Perrier met Mr Pond at his house on Coralinga on Sunday 22 January 2023. In evidence-in-chief Ms Perrier described the meeting on 22 January 2023 as 'a very quick meeting'.[62] In cross‑examination she said the meeting was 'probably under an hour'.[63]
[62] ts 393.
[63] ts 559.
I am satisfied the meeting occurred because in the text message to which I have referred Mr Repacholi told Mr Maartens he and Ms Perrier were going to meet Mr Pond on 'Sunday' and 22 January 2023 was the Sunday following the text message. Further, in an email to Mr Wallis, Mr Peter Repacholi and Mr Repacholi sent by Ms Perrier on 10 February 2023 (reproduced later) Ms Perrier referred to a meeting having taken place on 22 January 2023. [64]
[64] Exhibit P1, TB 25.
I am also satisfied that at the meeting on 22 January 2023 Mr Pond said he wanted $950 per acre for Belconnen. I am so satisfied because Ms Perrier recorded this in her 10 February 2023 email. In her evidence-in-chief and initially in cross-examination Ms Perrier was certain Mr Pond told them at the 22 January 2023 meeting that he had sold Pinnacles West to Ms Cahill and she was '100% sure' this was the first time she and Mr Repacholi were aware of the sale of Pinnacles West.[65] When shown Mr Repacholi's text message to Mr Maartens of 20 January 2023 she accepted she was mistaken.[66]
[65] ts 393, 566.
[66] ts 566 - 567.
At this point it is convenient to mention Mr Pond made some handwritten notes on an envelope from which some insight into his assessment of the value of his land might be gleaned.[67] On one side of the envelope Mr Pond had written:
[67] Exhibit D8.
Cash Price
1000 acres $1000
1 million Dollars
Its less than its Value.
Value Based on Corrigin
land values less a percentage
from Corrigin sales recently
Lease Hazeldean
40000 Per annum
2 x years
On the other side of the envelope Mr Pond had written (relevantly):
1000 acres
$1,200,000
It is likely Mr Pond made these notes sometime before 22 January 2023. I infer from the note and from the fact that Mr Pond had been a farmer in the Kondinin district all his life that he would have kept himself informed as to the price at which land in the district was being sold. Two properties in the vicinity of Coralinga had been sold in 2022. A property known as Hyview was sold in April 2022 for a price that equated to $1,204 per arable acre and a property at 1112 Bendering East Road was sold in December 2022 for a price that equated to $1,300 per arable acre.[68] It is likely Mr Pond was aware of these sales and while he may not have been aware of the exact sales prices I infer he would have been aware the sales were at prices greater than $1,000 per arable acre. I infer Mr Pond thought his land was worth at least $1,000 per arable acre.
[68] Exhibit P1, TB 129, Exhibit D23.
Mr Repacholi's evidence was to the effect that at the 22 January 2023 meeting he thought he had reached an agreement with Mr Pond that he would purchase Belconnen for a price calculated by reference to $690 per arable acre.[69] Ms Perrier's evidence was to the effect Mr Pond said he wanted $700 per arable acre or near $700 per arable acre.[70] I am not prepared to rely on the evidence of Mr Repacholi or Ms Perrier in relation to this point. Although some support for Ms Perrier's evidence is provided by the contents of her email to Mr Wallis her evidence generally about the conversations with Mr Pond was not reliable. I am not satisfied Mr Repacholi had any recollection of the conversation.
[69] ts 302.
[70] ts 393 - 394.
Later on 22 January 2023 Mr Repacholi, Ms Perrier and their children left to go on holiday.[71]

24 January 2023 - Corboules lease

[71] ts 395.

On 24 January 2023 Mr Pond and Mr Kim Courboules signed a two-page document entitled 'Agreement To Lease'.[72] The agreement provided for 'KD and JM Courboules' to lease the land known as the Bonds Road block and Hazeldean for one year commencing on 24 January 2023. The rent was $35,970 payable on signing the agreement. The agreement provided, 'the lessee has the 'first right of refusal' to renegotiate in Jan 2025'. It was a term of the agreement that there was to be no livestock permitted on the land.

2 February 2023

[72] Exhibit P1, TB 21.

On 2 February 2023 Mr Repacholi and Ms Perrier returned from their holiday.[73] Ms Hodakov telephoned them and said she was concerned about Mr Pond because he was unwell and he thought he might have covid.[74] Mr Pond was living in his Coralinga house at the time.
[73] ts 395.
[74] ts 395.
Ms Perrier gave evidence that she and Mr Repacholi went to see Mr Pond. She said Mr Pond was 'out of character' and he wouldn't come out of the house. According to Ms Perrier, Mr Pond spoke to her through the window and said 'I'm sorry that I can't come out, I don't want to make you sick, I think I have covid… I'm really tired, I've been sleeping 20 to 23 hours a day and I'm not eating'. Ms Perrier said Mr Pond looked grey in colour and was withdrawn. Ms Perrier said she drove between Corrigin and Coralinga to give Mr Pond electrolytes and protein shakes between three to five times a day for the next few days.[75]
[75] ts 395 - 396.
Ms Perrier gave evidence that by 5 February 2023 Mr Pond had been sick for ten days but was on the mend. Ms Perrier had been looking after him and dropping supplies to his house for three days and although he was on the mend he needed somebody at home with him and felt that he shouldn't be alone. Ms Perrier said that on 5 February 2023 she telephoned Ms Middleton. Ms Perrier could not recall the entire conversation she said occurred but recalled the 'crux of what was said' which was, she was concerned about Mr Pond, he was not well and he was not sleeping or eating properly.[76] Ms Perrier said she 'begged' Ms Middleton to come to Kondinin and Ms Middleton was hesitant to come because she thought Ms Hodakov was still on the farm. Ms Perrier reassured Ms Middleton that Ms Hodakov had left the farm and after some convincing Ms Middleton agreed to come to Kondinin.
[76] ts 396.
Ms Middleton's evidence was that she had contracted covid in January 2023. She said Mr Pond had told her he had covid. She denied that Ms Perrier had telephoned her and asked her to come to Kondinin to look after Mr Pond.[77] She gave evidence by reference to her diary to the effect she remained in Kelmscott in February 2023.[78]
[77] ts 1104.
[78] ts 1044 - 1052.
I accept Mr Pond was unwell in late January and early February 2023. I also accept Ms Perrier assisted Mr Pond in the manner she described though I have reservations about her evidence that she visited him three to five times a day. I do not accept Ms Perrier telephoned Ms Middleton and asked her to come to Kondinin to look after Mr Pond and that Ms Middleton came to the farms. I prefer Ms Middleton's evidence that she stayed in Kelmscott in January and February 2023 because Ms Middleton's evidence to the effect she remained in Kelmscott was corroborated by her diary entries and, by the evidence of her friend Ms Elizabeth Poultney.[79]

9 and 10 February 2023

[79] ts 1012 - 1020.

On 9 February 2023 a cheque drawn on the account of PJ Repacholi & Sons for the sum of $25,000 was cleared through Mr Pond's bank account.[80] This was payment of the rent due under the lease arrangements in respect of Belconnen, Pinnacles East and Pinnacles West between Mr Peter Repacholi and Mr Pond.
[80] Exhibit P1, TB 22.
On 9 February 2023 Mr Pond drew a cheque in favour of Ms Cahill in the sum of $30,000.[81] On the stub in his cheque book Mr Pond wrote, 'To cut out lease on Pinnacles West'.[82] An explanation for this payment emerged from Ms Perrier's evidence to the effect Mr Pond said he had spoken to Ms Cahill and that Mr Repacholi was to lease Pinnacles West through him and he would pay Ms Cahill.[83] I refer to Ms Perrier's evidence on this issue later.
[81] Exhibit P1, TB 232.
[82] Exhibit P1, TB 232.
[83] ts 403.
On 10 February 2023 the sale of Pinnacles West to Ms Cahill settled.[84]
[84] Exhibit P1, TB 24.
I infer from the content of an email from Mr Wallis to Ms Perrier sent at 6.06 pm on 9 February 2023 that earlier that day Ms Perrier left a message on Mr Wallis' answering machine in which she said Mr Pond had agreed to sell Belconnen at a price of $690 per acre.[85] Ms Perrier replied to Mr Wallis' email by her email of 10 February 2023 (being the email that was also addressed to Mr Peter Repacholi and Mr Repacholi) in which she wrote:[86]
[85] Exhibit P1, TB 25.
[86] Exhibit P1, TB 25.
Good morning Matthew.
Thank you for your email.
Apologies for the confusion and Thank you for explaining the steps moving forward in your email.
Both Michael and I were under the impression that our first priority was to ensure that he could secure Belconnen as without that locked in, we believed the rest of the process could not proceed and his farming future was in jeopardy.
When Michael met with Keith Pond yesterday, Keith finally agreed to a price and was very keen to get the ball rolling and money in his bank. Hence my phone call to you, we believed there was urgency given Keith's nature.
Since the farm meeting on the 19^th of January we had a meeting with Keith Pond on the following Sunday. During that meeting Keith expressed a desire to receive $950 an acre. He also advised he had sold 1000 of the 4000 acres we were hoping to acquire to his sister. The transaction had only recently taken place prior to harvest, as he was in need of money and he couldn't wait for us any longer. He advised she had paid $700 per acre. Keith said he was willing to sell Michael the land but that Michael would need to purchase the remaining 3000 acres for close to what his sister paid. Keith didn't want to wait another 2 years to sell the remaining parcels at Pinnacles west. Michael said he would speak to Pierre and the bank and try to make $700 per acre work over the remaining land. Keith said he would think about it and we would speak after we returned from holidays.
When we returned from holidays Keith was very sick. Finally yesterday he was in better health and adamant to finalise a deal. Michael said $690 was the best he could do and Keith agreed to that price.
We are waiting on Pierre to do an updated budget to ensure Michael can handle the additional 1000 acres at the increased price.
Yesterday we spoke to Corinne Adam's at WA Property Group to help with navigating the process. Corinne explained the importance of setting up the land holding trust before any offer and acceptance could be written & that our accountant would need to create the Corporate Trustee before the trust could be established.
Sam advised yesterday that Michael would need to find another accountant and that he would remain Peters farm accountant. Thankfully Karl Pass from Pass & Associates has agreed to take Michael on.
We will speak with Corrine today and seek advise on Michaels equity and get back to you as soon as possible.
Kind Regards
Sienne & Michael [italics added]
I infer from the telephone message she left for Mr Wallis and from her email of 10 February 2023 that Ms Perrier thought that on 9 February 2023 Mr Pond had agreed to sell Belconnen at a price of $690 per acre. I infer from the italicised paragraph of Ms Perrier's email that it was not Mr Repacholi's intention to purchase any land in his own name but that any purchase should be in the name of a company incorporated for the purposes of holding the land as a trustee of a trust.
Mr Repacholi did not give evidence to the effect he had reached an agreement with Mr Pond to purchase Belconnen at a price of $690 an acre on 9 February 2023. His evidence was that the price of $690 was agreed at the 22 January 2023 meeting and he was unable to recall any meetings with Mr Pond that occurred between 22 January 2023 and the date he (Mr Repacholi) signed the sale contract on 16 February 2023.[87]

11 February 2023

[87] ts 303.

Ms Perrier's evidence was that she and Mr Repacholi met with Mr Pond on Saturday 11 February 2023 at Coralinga to discuss the purchase and lease. She gave the following account of the meeting:[88]
Michael and Keith discussed the lease and – and that it would be officially $30. Because they had floated it previously. But I took minutes, or somewhat minutes, and noted it down that it was $30 per acre over the – over any leased land that was seeded. And any lupin country would be $15. And we – we also discussed buying Pinnacles East and Belconnen, so the entire 3,000 acres for $690.
. . .
Was there a discussion about what would happen to Mr Peter Repacholi?---Well, yes. So Pondy – sorry, Mr Pond had – had a few issues with Peter. And he didn't want to sell the land to Peter or lease the land to Peter. So Mr Pond made it clear that Michael – well, Mr Pond asked Michael, so you will be buying the farms, and you will be leasing the farms? And Michael said, yes. Dad has agreed to farm succession. He will be stepping back and retiring. And I will be taking over the trust. I think we even told him that we – I think we even discussed the fact that we had the Riverina Farms entity underway. I may have – I may have said that, and that – even the Warramunga – the Warramunga Landholding Trust – sorry, the Belconnen Trust with Warramunga being the corporate entity. Because I remember Keith saying to Michael – they were talking about Warramunga and how it was Michael's grandfather's boat in World War II, I believe. And then, I believe I asked Mr Pond if he was still happy with a three-year term for the lease.
Did he respond to that? Did he respond to that question?---Yes. He did. Yes.
What did he say?---Mr Pond said yes; Michael can lease it for as long as he would like to lease it.
. . .
So on 11 February, the farms to be leased would be Pinnacles West, although June had bought – June, sorry, Cahill, Mr Pond's sister, she had bought Pinnacles West. We hadn't yet talked to Ms Cahill at that time. Mr Pond said that he had spoken to Ms Cahill and that we were to lease Pinnacles West through him, and he would pay Ms Cahill money for leasing Pinnacles West. It would just continue as normal. And the other parcels would be Pegrums, or Woodhill, and Lowlands, any land that was seeded on that. There was a quite large parcel, I believe, that still needed to be like Ajust-a-barred, like L7 on the map. There may have been a couple of other parcels that weren't, yes, ready yet at the time. But I am not sure. And also – that is it. Yes. So Pinnacles West, Lowlands and Woodhill.
[88] ts 403 - 404.
Ms Perrier said she made notes during the meeting and when she went home she typed up the following document (the Lease Land Agreement):[89]
[89] ts 406; Exhibit P1, TB 29.
Ms Perrier's evidence was that she took the Lease Land Agreement to Mr Pond.[90] In his evidence-in-chief Mr Repacholi said he thought he and Ms Perrier took the document to Mr Pond but in cross-examination he said he could not recall whether he did so.[91] Curiously given her evidence that she took the Lease Land Agreement to Mr Pond, Ms Perrier sent an email to Mr Repacholi and Mr Peter Repacholi on 14 February 2023 in which she wrote:[92]
Hi Michael
As requested here is the typed up agreement for Keith Pond which you intend to deliver today.
Peter - if there is any errors or other agreements you believe to be in place please let Michael know
Cheers
Sienne
[90] ts 406.
[91] ts 190, 321.
[92] Exhibit P1, TB 29.
The defendants discovered a version of the Lease Land Agreement which was annotated as shown below:[93]
[93] Exhibit P1, TB 26, exhibit D22.
Ms Perrier gave evidence that she recognised the annotations as being in the handwriting of Mr Pond.[94] Mr Burrows said the original document with the annotations was among a bundle of documents provided to him by Ms Perrier on 22 June 2023.[95]
[94] ts 407.
[95] ts 1190 - 1191.
I find Mr Repacholi and Ms Perrier did meet Mr Pond at Coralinga on 11 February 2023. At the meeting Mr Pond agreed in principle to sell Belconnen and Pinnacles East at a price of $690 per arable acre making a total sale price of $2,070,000. Mr Repacholi was not however the proposed purchaser. As referred to in Ms Perrier's email to Mr Wallis of 10 February 2023 the purchaser was to be a company to be incorporated by Mr Repacholi and Ms Perrier which was to hold the land on trust.
I find Mr Pond agreed to lease Woodhill (Pegrums) and Lowlands to Mr Repacholi and in effect to arrange for Ms Cahill to lease Pinnacles West to Mr Repacholi for the 2023 cropping season. The rent under the lease was to be $15 per acre for Pinnacles West and $30 per acre for Woodhill and Lowlands. I find it was agreed Mr Repacholi would take possession of Belconnen and Pinnacles East and would crop those farms in the 2023 season pending completion of the sale and if the sale was not completed Mr Repacholi's possession of the farms would be treated as having been under a lease. I find it was agreed that Mr Peter Repacholi's payment of $25,000 would be treated as a deposit for the rent due under the leasing arrangements. I find Ms Perrier provided the Lease Land Agreement to Mr Pond and that it was Mr Pond who annotated the document.

My reasons for making these findings are as follows. First, the Lease Land Agreement corroborates Ms Perrier's account of the agreement in relation to the sale, the price and the agreement in relation to the areas to be leased. Second, I accept the Lease Land Agreement was prepared by Ms Perrier shortly after the meeting. In this respect, it is common ground it was created before 22 June 2023 and although relations between Ms Perrier and Mr Burrows had become strained, at that date there was no dispute between them. It is inherently improbable Ms Perrier would have prepared the Lease Land Agreement if the meeting and the discussions had not taken place. Put bluntly there was no reason for Ms Perrier to prepare a document falsely recording an agreement that had not been reached. It must be remembered that from the plaintiffs' perspective the agreement made on 11 February 2023 had been superseded by the sale contract and the lease executed by Mr Pond on 1 June 2023. Third, although Ms Perrier's email to Mr Repacholi and Mr Peter Repacholi of 14 February 2023 suggests Mr Repacholi was to deliver the Lease Land Agreement to Mr Pond, I think it is more likely Ms Perrier gave it to Mr Pond because, as will become clear, she dealt with him quite extensively in the week beginning Monday 13 February 2023. Fourth, as Ms Perrier had prepared the document it is unlikely that either she or Mr Repacholi would have annotated it. They had no reason to do so. It is more natural for Mr Pond as the person to whom the document was given to review to have annotated it.
I do not accept Ms Perrier's evidence to the effect Mr Pond was happy to lease the land to Mr Repacholi for three years or for as long as he would like to lease it. The Lease Land Agreement does not contain any reference to the term of a lease. It is inherently unlikely that Mr Pond would have been prepared to tie the land up for a three-year term for three reasons. First, the leasing arrangements Mr Pond had made in the past with Mr Peter Repacholi had been on a season-by-season basis and it is unlikely Mr Pond would change that arrangement or commit to lease the land at the same annual rate for a three year term. Second, as will become apparent Mr Pond was thinking about how he wanted his assets to be dealt with on his death and it is unlikely he would constrain his ability to deal with his assets by committing to a long term lease. Third, it is inherently unlikely he would commit to a three year lease over Lowlands because, as I have found, he regarded Lowlands as belonging to Ms Middleton.

Establishment of the Belconnen Trust and preparation of sale contract

In the week beginning 13 February 2023 Ms Perrier instructed Ms Corrine Adams of WA Property Settlements to prepare the documents required to establish a trust of which Warramunga was to be the trustee and to prepare a contract for the acquisition of Belconnen and Pinnacles East. On 15 February 2023 Ms Adams sent Ms Perrier an email attaching a draft trust deed and providing guidance as to how the draft should be completed and the trust established.[96] The trust deed was executed on 16 February 2023. Ms Perrier was a primary beneficiary of the Belconnen Trust.[97]
[96] Exhibit P1, TB 233.
[97] Reply and defence to counterclaim [12(c)].
On 16 February 2023 Ms Adams sent Ms Perrier a sale contract using the Real Estate Institute of Western Australia's standard 'contract for the sale of land or strata title for offer and acceptance'. Ms Adams provided guidance as to the places in the document where the parties' signatures were required.[98]

Arranging an appointment for Mr Pond to consult a lawyer regarding his will

[98] Exhibit P1, TB 233.

On 14 February 2023 Ms Perrier made an appointment for Mr Pond to see a lawyer at the firm DFG Legal about making a will. The time and date of the appointment may have changed but ultimately the appointment was fixed for 17 February 2023. Ms Perrier's evidence was that Mr Pond told her that he had burnt his existing will and he needed to make a new one. [99] She said Ms Middleton was 'very keen' for Mr Pond to make a new will and that she and Ms Middleton had numerous telephone conversations about the making of a new will.[100] Ms Middleton disputed Ms Perrier's account. Ms Middleton's evidence was to the effect there were two telephone conversations. In the first Ms Perrier introduced herself as 'Keith's new bookkeeper' and may have said she was Mr Repacholi's partner. In the second telephone conversation Ms Middleton said Ms Perrier told her that she had made an appointment for Mr Pond to see a lawyer on 17 February 2023 and she would bring Mr Pond down to Perth for the appointment.[101] It is possible Ms Perrier referred to herself as 'Keith's new bookkeeper' because this is how Mr Pond introduced Ms Perrier to his accountant at a meeting on 27 March 2023 which Ms Middleton also attended,[102] but it is also possible Ms Middleton has conflated her recollection of how Mr Pond described Ms Perrier at that meeting with how Ms Perrier described herself in their first telephone conversation. The degree to which Ms Perrier had involved herself in Mr Pond's life was something that struck Ms Middleton. She made the following note in her diary, 'Sienne phoned - She and Michael had suddenly become Keith's new best friends'.[103] It is unnecessary to attempt to resolve the conflict in the evidence as to content and extent of the communications between Ms Perrier and Ms Middleton about the arrangements for Mr Pond to see a lawyer.
[99] ts 414.
[100] ts 414.
[101] ts 1052 - 1053.
[102] ts 1003.
[103] Exhibit P1, TB 141.
Mr Pond made a handwritten note in which he mentioned his intention to make a will and also the sale of Belconnen.[104] I infer the note was made on or about 13 February 2023. The note read as follows:[105]
[104] Exhibit P9.
[105] Exhibit P9.
Sorting out some assets ect.
Lowlands Pruden Rd
Mostly goes to Ruth. It's her farm incl the House ect.
Also Woodhill adjoining on the south side. 850 acres
And approximately 1900 acres arable in the Main Block to do with Pruden Rd.
Coralinga approx.. 1000 acres inc Sheds Cars and Machinery a lot to be sorted if you like yet.
Tractors – Machinery to go to Ruth eventually
Ruth needs to discuss a bit of a split up if I'm not well as of late.
Hoping to get a will going about Wed with Sienne and a lawyer on Wednesday in Perth. By leaving very early like 6am Morning at a place in Perth with some help from Sienne going to run me down to the lawyers office.
Belconnen is going to Sienne and Mick maybe a month off yet as they plan to purchase Belconnen and possibly more blocks associated with this transaction pending. It's been already written up
Between us all! A Big day on Wednesday going to Perth with Sienne.
Petrol needs sorting + tipping out empty drains.
Kondinin tomorrow check up whats in or not)
Pay 5000.00 over for fridge and pay out NAB Debt x x with credit card (Balance of money now in Kondinin)?
Main Points
(Small wattage lobes requ)

The sale contract

The material provisions of the draft sale contract prepared by Ms Adams were as follows:[106]
[106] Exhibit P3.
(a)As noted earlier, the property being sold was described on the first page of the sale contract simply by reference to the address 'Belconnen, Nambadilling Road, Kondinin'. Annexure B contained a list of the title details of the eight lots that comprised Belconnen and Pinnacles East.
(b)The price was $2,070,000. The deposit was $200,000 of which $10,000 was payable within seven days of acceptance and the balance of $190,000 was payable within 30 days.
(c)The sale was expressed to be subject to finance. The subclauses dealing with the identity of the lender and the amount of the loan were completed with words, 'lender of Buyers choice' and 'TBC' respectively. The latest time for obtaining finance was 'on or before 42 days after acceptance'.
(d)The settlement date was specified as '30 days after finance approval'.
(e)Clause 3 of annexure B was to the effect that it was a condition of the contract that Mr Pond would provide a certificate from a qualified electrical contractor as to the presence of compliant residual current devices (RCDs) in the residences that were the subject of the sale. Clause 4 of annexure B was to the effect that Mr Pond represented and warranted that he was not aware of any contamination on the land and that if there was any contamination he assumed responsibility for remediation.
(f)The sale contact incorporated the 'Joint Form of General Conditions For The Sale Of Land' published by the Law Society of Western Australia and Real Estate Institute of Western Australia.[107] Relevantly:
(1)Clause 3.3(a) of the General Conditions obliged Warramunga to arrange for duty to be paid on the sale contract and for the transfer to be 'Duty Endorsed' at settlement or if duty was assessed through Revenue Online, Warramunga was obliged to give a Certificate of Duty at settlement.
(2)Clause 4.1 of the General Conditions obliged Warramunga to pay Mr Pond interest on the balance of the purchase price in the event settlement was not completed within three business days after the settlement date for any reason not attributable to Mr Pond.
(3)Clause 4.2 of the General Conditions obliged Mr Pond to pay compensation to Warramunga equal to interest on the balance of the purchase price if settlement was not completed within three days after the settlement date for any reason attributable to him.
(4)Clause 4.3 provided that interest under cl 4.1 or compensation under cl 4.2 was to be calculated by reference to the prescribed rate and cl 26.1 provided that the prescribed rate was 9 % per annum calculated daily.
[107] Exhibit P1, TB 233.
In their capacities as directors of Warramunga, Mr Repacholi and Ms Perrier signed the sale contract on 16 February 2023. Ms Perrier's evidence was that she put the contract in an envelope and went to see Mr Pond. When asked about the circumstances of meeting Mr Pond Ms Perrier said:[108]
I feel like it was Coralinga but part of my brain says Lowlands.
[108] ts 412.
Ms Perrier said she went through the sale contract with Mr Pond for between 15 and 30 minutes.[109] She said she was angry the sale contract contained the clause concerned the RCDs.[110] Ms Perrier went on to say she gave the envelope containing the sale contract to Ms Middleton who put it in a black bag.[111] She said this occurred 'either inside the Coralinga House or at Kelmscott in the driveway'.[112] Her evidence was:[113]
But when I handed the documents to Ms Middleton, I can clearly see myself handing them to her and asking Ms Middleton to take them to the DFG Legal appointment that they had booked, or that, sorry, I had booked for them on Ms Middleton's request for Mr Pond the next day, which was 17 February. I wanted Mr Pond to have somebody look at them. And he was going to a lawyers' meeting anyway. So I handed them to Ms Middleton. And my understanding, from what she told me, was that she would take them to the lawyers meeting with her and Mr Pond.
[109] ts 721.
[110] ts 723.
[111] ts 412.
[112] ts 413.
[113] ts 413.
In cross-examination Ms Perrier said she had discussed with Mr Pond and Ms Middleton the possibility that Mr Pond would get the lawyer he was consulting about the will to look at the sale contract as well. Her evidence was that 'as he was going for his will anyway, it just seemed like a win-win'.[114]
[114] ts 607 - 608.
Ms Middleton's evidence to the effect that she was in Kelmscott on 16 February 2023 was corroborated by the evidence of Ms Poultney. Ms Poultney gave evidence to the effect she arrived at Ms Middleton's home in Kelmscott at 7.50 am and left at about 6.30 pm. She said Mr Pond and Ms Perrier arrived at the house at about 3.00 pm and Ms Middleton went outside for 15 to 20 minutes and was talking to someone.[115] Ms Middleton accepted she had spoken to Ms Perrier in the driveway to the Kelmscott house on the afternoon of 16 February 2023 and that Ms Perrier had checked with her that she knew the location of the meeting with DFG Legal about the making of Mr Pond's will.[116]
[115] ts 1012 - 1014.
[116] ts 1109.
I find that on 16 February 2023 Ms Perrier picked Mr Pond up at Coralinga and drove him to Kelmscott. I find Ms Middleton was in Kelmscott and not in the Wheatbelt on 16 February 2023. I find Ms Perrier told Mr Pond the sale contract had been prepared and that she and Mr Repacholi had signed it. I find Ms Perrier provided the envelope with the sale contract to Mr Pond in the expectation that he might discuss it with DFG Legal at the consultation about his will fixed for 17 February 2023. I do not accept Ms Perrier gave the envelope containing the sale contract to Ms Middleton and that Ms Middleton put it in a black bag. My reasons for these findings are as follows. First, I prefer Ms Middleton's evidence as to her whereabouts on 16 February 2023 which is corroborated by Ms Poultney's evidence to that of Ms Perrier. Second, I prefer Ms Middleton's evidence over Ms Perrier's evidence on the issue of whether Ms Perrier gave Ms Middleton an envelope containing the sale contract in the driveway at Kelmscott. It seems inherently unlikely that Ms Middleton would have walked out of her house at Kelmscott to talk with Ms Perrier carrying a black bag. Third, it is apparent from text messages exchanged between Ms Perrier and Mr Repacholi on 17 February 2023 that Ms Perrier was waiting to hear from Mr Pond or Ms Middleton once they had met the lawyer and that Ms Perrier expected Mr Pond would discuss the sale contract with the lawyer.[117] I infer she was not waiting for news about Mr Pond's will but waiting for news about the sale contract from which it follows that she must have given the sale contract to Mr Pond on 16 February 2023.
[117] Exhibit D7.
In the evening on 17 February 2023 Ms Perrier had a telephone conversation with Mr Pond or Ms Middleton and she was told Mr Pond was not happy because the lawyers told him he had to be assessed by a medical practitioner to determine his capacity to make a will.[118] That the lawyer might raise the issue of Mr Pond's capacity to make a will was something of which Ms Perrier was aware. In one of her text messages to Mr Repacholi on 17 February 2023 she had written:[119]
They will only be a while in the lawyers office if they have deemed him competent to make the will. Otherwise they would have sent him to a doctor.
[118] ts 734 - 735.
[119] Exhibit D7.
On 18 February 2023 Ms Perrier went to see Mr Pond and Ms Middleton at their Kelmscott house. Based on the time at which she exchanged text messages with Mr Repacholi, Ms Perrier arrived at the Kelmscott house no earlier than 11.45 am.[120] Ms Perrier's account of the meeting was as follows:
[120] Exhibit D7.
(a)When she arrived Mr Pond said he was not happy with the lawyers because they had asked him to do a medical test to assess his mental capacity and there 'was nothing wrong with him'. Ms Perrier apologised to Mr Pond and Ms Middleton and felt 'terrible' because she thought she had let them both down. Ms Perrier told Mr Pond she was sorry the meeting did not go well and she could arrange an appointment with Dr Mackie (Mr Pond's general medical practitioner) when they returned to Kondinin.[121] Ms Perrier then asked Mr Pond, 'do you still have the offer and acceptance or did you leave it with DFG Legal to review'.[122] Ms Middleton pulled the offer and acceptance out of her black bag and said 'No. We still have the offer and acceptance'.[123]
[121] ts 427.
[122] ts 427 - 428.
[123] ts 427 - 428.
(b)Ms Perrier recalled Mr Pond sitting in the lounge room and Ms Middleton washing some grapes, or doing some food preparation in the kitchen.[124] Ms Perrier was sitting on the floor in front of the lounge and asked Mr Pond what he wanted to do about the offer and acceptance. Mr Pond said, in effect, that he wanted to get the ball rolling and 'this' had gone on long enough. Ms Perrier asked Ms Middleton and Mr Pond how they would feel about signing the offer and acceptance that day and Mr Pond responded 'there's nothing wrong with me. I can sign a document. I know what I'm doing'.[125]
[124] ts 428.
[125] ts 428.
(c)Ms Perrier and Mr Pond then reviewed the document. They went through the offer and acceptance and the annexures and Ms Perrier said to Mr Pond she was not happy because the lawyers had not removed the clause relating to the RCD switches but told him not to worry because that was something they could deal with at settlement. Ms Perrier said the clause relating to the RCD switches was 'not fair because the houses are derelict'.[126] Ms Perrier also said the same thing about the contamination clauses and told Mr Pond not to worry about any oil spills.
[126] ts 428.
(d)After reviewing the document, Ms Perrier went through the price with Mr Pond and said '3000 acres at $690 per acre, are you happy with that Keith?'.[127] Ms Perrier took out her notepad and calculator to check that the purchase price on the contract was correct, she calculated 3000 acres at $690 per acre, and showed Mr Pond the total figure of $2,070,000. Ms Perrier again asked 'are you happy with that Keith, that Belconnen and Pinnacles East are all $690?'.[128] Mr Pond said he was not happy that Pinnacles East was the same price as Belconnen because Belconnen had infrastructure and Pinnacles East had no infrastructure and 'it's hungry country'. Ms Perrier said 'okay' and asked 'what figure would you feel comfortable with?'. Mr Pond thought for a moment and said 'I would be happy with $500 per acre for Pinnacles East'.[129] Ms Perrier asked Mr Pond whether he was sure about that price and said 'that's almost $200 an acre less than Belconnen' and Mr Pond responded that he was sure.[130]
[127] ts 428.
[128] ts 429.
[129] ts 429.
[130] ts 429.
(e)Ms Perrier felt that when Mr Pond ' had said $500 an acre… the person that he was really agreeing with or needed to have a contract with…was Michael' and so Ms Perrier telephoned Mr Repacholi and had a very quick 'speakerphone' conversation which went as follows:[131]
[131] ts 429 - 430.
Ms Perrier:I'm here with Ruth and Keith, Pondy has just said that Pinnacles East is $500 an acre because it's hungry country. How do you feel about that?
Mr Repacholi:         I'm happy if Keith is happy
Ms Perrier:               Are you happy Keith?
Mr Pond:                  Yes, I'm happy
Ms Perrier:               Okay, see you soon.
(f)Ms Perrier said she felt better about making a change to the contract after having the speakerphone conversation with Mr Repacholi and Mr Pond. On the notepad in front of her she wrote down the calculation for the new purchase price, being, 2000 acres multiplied by $690 for Belconnen and 1000 acres multiplied by $500 for Pinnacles East, which totalled $1,880,000. Ms Perrier showed her calculations to Mr Pond and asked him whether he was happy with the numbers and Mr Pond said he was happy.[132]
(g)Ms Perrier wrote $1,880,000 next to the purchase price of $2,070,000 which appeared on the front page of the offer and acceptance. She initialled the change 'SMP' and then crossed out the $2,070,000. Ms Perrier then asked Ms Middleton what she thought and Ms Middleton said 'It's Keith's farm, it's up to him'.[133] Mr Pond then wrote his initials 'KSP' next to the change and then signed the remainder of the offer and acceptance, including the two annexures.[134]
(h)The offer and acceptance document was three pages long. Annexure A was one page long. Annexure B was three pages long, the first two pages contained clauses relating to (i) the land descriptions (ii) COVID 19 and (iii) residual current devices. The third page of annexure B contained a clause relating to contamination and provided a signature for the buyer to sign and one space for the seller to sign. Mr Pond signed every page of the offer and acceptance document, annexure A and the third page of annexure B, though, he did not sign the first two pages of annexure B.[135]
(i)Ms Perrier described feeling anxious to get home, she wanted to return to her children as it was the first time Mr Repacholi had looked after them for two days by himself and there was a memorial the following day for the parents of a local family who had been killed in a tragic accident.[136] Ms Middleton said to Ms Perrier that she 'could feel [Ms Perrier] wasn't okay and would like to help [her]', Ms Middleton said '[Ms Perrier] should not be driving home right now, I have a table upstairs that I can do my therapy on and it will relax you'.[137] After some encouragement from Mr Pond and Ms Middleton, Ms Perrier went upstairs to Ms Middleton's therapy room where Ms Middleton administered some therapy to Ms Perrier.
(j)After the therapy treatment Ms Perrier came downstairs and was feeling more relaxed. Ms Perrier pulled the offer and acceptance out of the envelope to triple check the signatures, the purchase price and the initials to the change were correct. Ms Perrier calculated the purchase price again, though this time the figure she reached was $1,800,000. Ms Perrier began to feel stressed again and she said to Mr Pond and Ms Middleton 'what have I done… look I keep getting 1.8 million on this contract. The amount that I'm getting on the calculator is $80,000 less than what's on the contract… let's just leave it the $80,000 can serve as payment for the hardship Peter [Repacholi] caused you when he sprayed your paddock out'.[138] Mr Pond and Ms Middleton said 'no, you don't have to pay for Peter's mistake' and Ms Perrier said 'No it's important. I can't change this document again, I'm getting 1.8 it's lower than the 1.88…let's leave it, please'. Mr Pond said 'okay' and Ms Middleton said, 'if you're sure'. Ms Perrier put the documents back into the envelope and she drove home to Kondinin.[139]
[132] ts 430.
[133] ts 430 - 431.
[134] ts 431.
[135] Exhibit P3.
[136] ts 431.
[137] ts 432.
[138] ts 434.
[139] ts 434.

I do not accept these matters taken individually or in combination are sufficient to rebut the presumption of undue influence. Two preliminary observations are necessary. First, the issue is not whether Mr Pond understood the nature of the transaction but whether he signed the sale contract in the exercise of his own free will. Second, the sale price was so significantly below market value thus the transaction was so improvident that the presumption of undue influence is not lightly rebutted.
I have found Ms Perrier suggested to Mr Pond that he take the draft sale contract to DFG Legal for advice at the appointment made to discuss his will but, on Ms Perrier's evidence, at the meeting on 18 February 2023 not only was it clear that Mr Pond had not received advice on the draft sale contract but Ms Perrier was told Mr Pond's solicitor was sufficiently concerned about his capacity to make a will that a medical assessment was required. In those circumstances I do not accept that the opportunity for Mr Pond to obtain legal advice is sufficient to rebut the presumption of undue influence.
I do not accept that there was no pressure on Mr Pond to sign the sale contract. Having been told Mr Pond was required to obtain a medical assessment of his testamentary capacity, something about which he was unhappy, Ms Perrier asked him how he would feel about signing the offer and acceptance that day. This was a subtle application of pressure on Mr Pond to sign the sale contract.
The possibility of obtaining advice from Mr Prosser before signing the sale contract was no more than a theoretical possibility. It is to be accorded no weight in the context of the consideration of whether the presumption of undue influence has been rebutted.
I have not accepted Ms Perrier's account that Mr Pond signed the sale contract on 18 February 2023 in Ms Middleton's presence but even were that so it would be of no moment. Ms Middleton was herself elderly. There is no evidence that she provided Mr Pond with any advice in relation to the sale or leasing of land or related matters. Rather, her evidence was to the effect she left the financial side of their relationship to Mr Pond.
I find the presumption of undue influence has not been rebutted. The consequence is the defendants are entitled to have the sale contract set aside.
In the light of this conclusion it is unnecessary to address the defendants' alternative defences of mistake, misleading or deceptive conduct or unconscionable conduct but I will do so briefly.

The defendants' case on mistake and misleading or deceptive conduct

The defendants' pleaded case on mistake rests on the proposition that Mr Pond thought the land the subject of the sale contract was limited to Belconnen West or Belconnen West and Belconnen East but in either case did not include Pinnacles East. The defendants pleaded Warramunga was aware of Mr Pond's mistake and deliberately set out to ensure that he did not become aware of his mistake.[420]
[420] Defence and counterclaim [21] - [25].
In their counterclaim the defendants relied on substantially the same facts to allege misleading or deceptive conduct on the part of Warramunga and Ms Perrier. They alleged the description of the land in the sale contract falsely represented the land being sold was limited to Belconnen West and did not include Belconnen East or Pinnacles East, alternatively was limited to Belconnen West and Belconnen East but did not include Pinnacles East.[421]
[421] Defence and counterclaim [61] - [70].
My finding Ms Perrier provided Mr Pond with a copy of the Lease Land Agreement shortly after the 11 February 2023 meeting and that he read it and annotated it is inconsistent with a finding that Mr Pond was mistaken about the extent of the land which was the subject of the sale contract. The Lease Land Agreement identified Pinnacles East and Belconnen as being the subject of the proposed sale. I am not satisfied Mr Pond was mistaken as to the extent of the land that was the subject of the sale contract.

The defendants' non est factum case

The defendants plead that because Mr Pond was seriously unwell, close to death and without capacity to make a judgment in his best interests when Ms Perrier presented him with the lease document for him to sign on 1 June 2023, through no fault of his own, he was unable to have any understanding of the true effect of the document and he believed it was something radically different from what it in fact was. In relation to Mr Pond's state of mind the defendants rely on the fact Mr Pond wrote the words 'To whom it may concern' rather than signing the document from which they contend gives rise to the inference that Mr Pond believed the lease document was something radically different from what it was.[422]
[422] Defence and counterclaim [28A] - [29].
The principles underlying the doctrine of non est factum were considered by the High Court in Petelin v Cullen.[423] In that case the High Court explained:[424]
The principle which underlies the extension of the plea to cases in which a defendant has actually signed the instrument on which he is sued has not proved easy of precise formulation. The problem is that the principle must accommodate two policy considerations which pull in opposite directions: first, the injustice of holding a person to a bargain to which he has not brought a consenting mind: and, secondly, the necessity of holding a person who signs a document to that document, more particularly so as to protect innocent persons who rely on that signature when there is no reason to doubt its validity. The importance which the law assigns to the act of signing and to the protection of innocent persons who rely upon a signature is readily discerned in the statement that the plea is one "which must necessarily be kept within narrow limits" (Muskham Finance Ltd v. Howard) and in the qualifications attaching to the defence which are designed to achieve this objective.
The class of persons who can avail themselves of the defence is limited. It is available to those who are unable to read owing to blindness or illiteracy and who must rely on others for advice as to what they are signing; it is also available to those who through no fault of their own are unable to have any understanding of the purport of a particular document. To make out the defence a defendant must show that he signed the document in the belief that it was radically different from what it was in fact and that, at least as against innocent persons, his failure to read and understand it was not due to carelessness on his part. Finally, it is accepted that there is a heavy onus on a defendant who seeks to establish the defence. All this is made clear by the recent decision of the House of Lords in Saunders v. Anglia Building Society (Gallie v. Lee)
. . .
. . . [W]hen the defence is asserted against the other party to the transaction who is aware of the circumstances in which it came to be executed and who knows (because the document was signed on his representation) or has reason to suspect that it was executed under some misapprehension as to its character. In such a case the law must give effect to the policy which requires that a person should not be held to a bargain to which he has not brought a consenting mind for there is no conflicting or countervailing consideration to be accommodated - no innocent person has placed reliance on the signature without reason to doubt its validity. [footnotes omitted]
[423] Petelin v Cullen [1975] HCA 24; (1975) 132 CLR 355.
[424] Petelin v Cullen (359 - 360).
There is a substantial overlap between the matters relevant to the issue of Mr Pond's capacity to execute legal documents on 1 June 2023 and the matters relevant to the issue of whether he believed the lease document was radically different from what it in fact was. The inference that Mr Pond did not understand he was signing a lease arising from the fact he did not sign his name but wrote the words 'To whom it may concern' is compelling. It is impossible to say what document Mr Pond actually thought he was writing on and for what purpose but I am satisfied he did not bring a consenting mind to the transaction recorded in the lease document.
The defendants have established their non est factum case.

The defendants' unconscionable conduct case

The pleaded case

The defendants' pleaded case was as follows:[425]
[425] Defence and counterclaim [29] - [32].
29.Further and alternatively, as at 1 June 2023 when he is alleged to have signed the Alleged Lease, Mr Pond was in hospital, seriously unwell and close to death, and without the capacity to make a judgment as to his own best interests.
30.Ms Perrier procured Mr Pond's alleged signature to the Alleged Lease on behalf of Michael Repacholi.
31.In the premises, at the time of allegedly signing the Alleged Lease, Mr Pond was in a position of special disadvantage or disability with respect to Ms Perrier.
32.Ms Perrier (on behalf of Michael Repacholi) knew the matters pleaded in the preceding paragraph, alternatively was aware that circumstances existed which indicated that Mr Pond was under such special disadvantage or disability or which put her on inquiry as to whether that was the case such that she (on behalf of Michael Repacholi) ought to have known those matters.
Particulars
(a)The matters referred to in paragraphs 29 and 31 herein were obvious to Ms Perrier upon observing Mr Pond in hospital.
(b)Ms Perrier was otherwise fully aware of Mr Pond's condition. Ms Perrier recorded her knowledge of it in an email to her settlement agent (WA Property Lawyers) sent at or about 10.11am on 1 June 2023.
(c)These matters were otherwise apparent from the form of Mr Pond's purported 'signature' on the Alleged Lease, which bore no resemblance to his usual signature and appeared to state 'To whom it may concern' or something similar, and that fact that Mr Pond was unable to write his name.
(d)Ms Perrier attended at Mr Pond's hospital bed on 1 June 2023 for the purpose of having Mr Pond sign a document or documents, despite the fact that she was not invited to be there.
33.The defendants have rescinded, alternatively do hereby rescind, the Alleged Lease ab initio.

Applicable legal principles

The elements that a party alleging unconscionable conduct must establish were identified by Deane J in Commercial Bank of Australia Ltd v Amadio,[426] as follows:[427]
(i) a party to a transaction was under a special disability in dealing with the other party with the consequence that there was an absence of any reasonable degree of equality between them and (ii) that disability was sufficiently evident to the stronger party to make it prima facie unfair or 'unconscientious' that he procure, or accept, the weaker party's assent to the impugned transaction in the circumstances in which he procured or accepted it.

Disposition

[426] Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447.

[427] Commercial Bank of Australia Ltd v Amadio (474).

I am comfortably satisfied Mr Pond was under a special disability on 1 June 2023 and this was so irrespective of whether he had legal capacity to execute the lease and other documents presented to him for his signature by Ms Perrier. To repeat what I have stated earlier. He was sleep deprived, severely unwell and had been told he was dying and would never be returning home. He was in no condition to deal with any matter of business. Mr Pond's dire condition was obvious to Ms Perrier or, at the very least, it ought to have been. I am also comfortably satisfied that by presenting the documents to Mr Pond for his signature and obtaining his signature to the transfer and to the waiver document and his mark on the lease, Ms Perrier took unconscientious advantage of Mr Pond's condition.
It is telling that when she and Mr Repacholi visited Mr Pond and Ms Middleton at Lowlands in the evening of 30 May 2023 and saw Mr Pond was unwell, Ms Perrier had the good judgment not to press Mr Pond to sign the lease she had prepared. I have no doubt that when she visited Mr Pond in hospital on 1 June 2023 Ms Perrier felt a great deal of pressure to ensure the transactions with Mr Pond were completed. The good judgment Ms Perrier exercised on 30 May 2023 deserted her on 1 June 2023. It was a serious misjudgement for Ms Perrier to even raise the possibility of signing legal documents with Mr Pond. As I have said it ought to have been obvious to her that Mr Pond was in no condition to have a proper appreciation of, and regard for, his own interest.
The defendants have made out their unconscionable conduct case.

The counterclaim

Claim for possession

The defendants allege Warramunga has been in unlawful possession of Belconnen West, Belconnen East and Pinnacles East since on or about 16 February 2023.[428] They allege Mr Repacholi has been in unlawful possession of Coralinga, Lowlands and Woodhill since in or about late May 2023.[429]
[428] Defence and counterclaim [71].
[429] Defence and counterclaim [72].
I have found Warramunga had no rights to possession of Belconnen and Pinnacles East from 31 December 2023. The defendants are entitled to an order for vacant possession of both properties.
I have found Mr Repacholi had no rights to possession of Coralinga, Lowlands or Woodhill from 31 December 2023. The defendants are entitled to an order for vacant possession of the three properties.

Conversion claims

The defendants allege Mr Repacholi, alternatively Riverina Farms converted 1,200 tonnes of grain, 50 tonnes of fertiliser and 5,000 litres of diesel belonging to Mr Pond.[430]
[430] Defence and Counterclaim [81], [90], [99].
The governing legal principle can be shortly stated: anyone who, without lawful justification, takes a chattel out of another's possession without consent and with intent to exercise dominion over it, commits conversion.[431]

The diesel claim

[431] Kuwait Airways Corp v Iraqi Airways Co (Nos 4 & 5) [2002] UKHL 19; [2002] 2 A.C. 883 [414] - [438], see also Bunnings Group Ltd v CHEP Australia Ltd [2011] NSWCA 342; (2011) 82 NSWLR 420 [124].

The defendants' claim in relation to the diesel is most conveniently explained by reproducing their closing written submissions on the issue.[432]
Mr Pond had an active fuel tank at Coralinga that had a capacity of 20,000 litres. He kept diesel in the tank. On about 22 February 2023, Mr Pond purchased 13,000 litres of Diesel. The tank could be accessed in two ways. Via the hand pump, which was key locked; and via the screw-cap fill hole on the top. The cap on the top was not key locked and fuel could be sucked out of it with a hose. There was a dip-stick by the latch at the top.
On 20 June 2023, Mr Burrows used the dip-stick to measure the amount of diesel in the tank. He observed 15,288 litres of diesel in the tank on that day. He took a photograph of the reading.
On 30 June 2023, Mr Burrows returned to Coralinga. He used the dip‑stick again to measure the amount of diesel in the tank. He observed that the diesel had dropped in volume by about 5,000 litres. He did not take a photograph on that day.
The only people who could access the diesel tank at Coralinga were Mr Burrows, Ms Middleton, Mr Repacholi and Ms Perrier. That is because Mr Repacholi had put signs up at Coralinga to deter the public from entering, and the plaintiffs and Mr Repacholi were in possession of Coralinga at the time.
Mr Burrows and Ms Middleton did not take the 5,000 litres of Diesel. In the circumstances of the case, the Court should infer, with respect, that Mr Repacholi took the diesel.
[432] Defendants' closing submissions [232] - [236], see also defence and counterclaim [82] - [91].
Mr Burrows' evidence did not in fact support a claim for 5,000 litres of diesel because he said when he measured the fuel in the tank on 30 June 2023 there was 12,300 litres 'or something' in the tank.[433] Rather curiously, Mr Burrows did not take a photograph of the dipstick on 30 June 2023 but said he wrote the figure down somewhere.
[433] ts 1196.
Mr Repacholi and Ms Perrier gave evidence about their use of diesel from the tank.
(a)Ms Perrier said Mr Pond attempted to fill up her car with his diesel before she drove him to Perth on 16 February 2023 but he could not get the pump to work and Ms Perrier ultimately filled up her car in town.[434] Ms Perrier gave evidence that while she was with Mr Pond on 16 February 2023, Mr Pond said to her, 'if you ever need fuel it's here'.[435]
[434] Exhibit D5; ts 720 - 722.
[435] ts 542.
(b)On 8 June 2023 after Mr Pond's death, Ms Perrier and Mr Burrows had the following text exchange:[436]
[436] Exhibit P1, TB 108.
Ms Perrier: Hey Paul it's Sienne, just doing the asset register at Coralinga. Need some diesel but can't find the key. Did you change the hiding spot?
Mr Burrows: Sorry I have the keys for most things
I will call you back soon
Ms Perrier: Ok
It's all good don't worry about it…
(c)Ms Perrier said she didn't access the diesel on that day or on any other day afterwards.
(d)Mr Repacholi said he filled up Ms Middleton's car from Mr Pond's tank on one occasion but he otherwise never accessed Mr Pond's fuel for himself.[437] Mr Repacholi gave two reasons, first, because he 'would never do that' and second, because he had his own fuel. Mr Repacholi said that on one occasion he filled up Mr Pond's tractor with his own fuel because Mr Pond's tank had to be cleaned because it was contaminated with algae.[438]
[437] ts 230.
[438] ts 230.
I have expressed general reservations about Mr Repacholi's evidence but I accept his evidence about Mr Pond's diesel. His evidence on this issue was given without any hesitation or equivocation and was persuasive. My acceptance of Mr Repacholi's evidence leads to the conclusion the conversion claim in respect of the diesel must be dismissed.
I make this additional observation. An allegation of conversion is a very serious allegation. Although dishonesty is not an element of the cause of action, in the context of this case the allegations of conversion imply impropriety if not dishonesty on the part of Mr Repacholi. The degree of reasonable satisfaction that I must feel before finding the allegations are established should not be produced by, 'inexact proofs, indefinite testimony or indirect inferences'.[439] The defendants' case is entirely inferential. Even if I were to put to one side Mr Repacholi's evidence I would not be satisfied that the defendants had established their claim. Mr Burrows' evidence about measuring the quantity of the diesel on 30 June 2023 was imprecise and it is of some concern that he did not keep any record of the measurement. Moreover, other inferences are open. The most obvious one being the diesel may have been stolen by third parties.

The fertiliser claim

[439] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362 - 363.

The defendants' claim that on unknown dates between 10 June 2023 and 6 May 2024 Mr Repacholi took or caused to be taken approximately 50 tonnes of Mr Pond's fertiliser from the super shed that was located at Belconnen West.[440]
[440] Defence and counterclaim [92] - [100].
Mr Repacholi contends the fertiliser in the super shed did not belong to Mr Pond but was purchased by Komtar Pty Ltd or Riverina Farms.
The relevant evidence may be summarised as follows:
(a)Mr Burrows saw 'plain' superphosphate fertiliser in the shed at Belconnen in the first two weeks of June 2023.[441] He estimated the quantity to be 50 tonnes. He was certain in his evidence that it was plain superphosphate as opposed to fertiliser commonly known as 'DAP' (di-ammonium phosphate). His evidence was that the different fertilisers 'don't look the same at all'.[442] His confidence in his evidence about the quantity of fertiliser and its type was based on his experience as a truck driver.[443]
(b)There was no evidence that Mr Pond had purchased a quantity of superphosphate fertiliser in 2023. The defendants were unable to produce any accounting records supporting their claim the fertiliser was owned by Mr Pond.
(c)When Mr Burrows inspected Belconnen with Mr Lambert in May 2024 he noticed the fertiliser he had seen in June 2023 was no longer there.[444]
(d)PJ Repacholi & Sons purchased approximately 120 tonnes of DAP fertiliser in April 2023 which was delivered in late April 2023 and approximately 80 tonnes of DAP fertiliser in June 2023.[445] Mr Repacholi said most of the fertiliser delivered in April 2023 would have been delivered to the Belconnen fertiliser shed (the super shed) because that was 'the bigger cropping area'.[446]
(e)Mr Repacholi accepted the superphosphate fertiliser was a white grey colour and the 'DAP' fertiliser was a dark green, dark grey or brown colour though he said the DAP fertiliser only looked different to 'traditional superphosphate' when it was new and that when the DAP fertiliser first arrived at the shed it was a 'little bit different in colour'.[447] When asked whether the DAP fertiliser was visually 'quite different' to traditional superphosphate fertiliser Mr Repacholi said he didn't know and that, 'it all looks pretty similar'.[448]
(f)As recorded earlier on 27 June 2023 (that is after Mr Burrows had seen what he took to be Mr Pond's fertiliser in the Belconnen fertiliser shed) Mr Repacholi sent Mr Burrows a text message asking whether he could use the wombat loader to push up fertiliser in the Belconnen shed and Mr Burrows said he would bring the keys out later in the day.
[441] ts 1194 - 1195.
[442] ts 1213.
[443] ts 1195.
[444] ts 1195.
[445] Exhibit P1, TB 58, 59, 69, 76 and 77.
[446] ts 209.
[447] ts 251.
[448] ts 250.

I accept Mr Repacholi's evidence in relation to the delivery and presence of DAP fertiliser at Belconnen. There is documentary evidence PJ Repacholi & Sons purchased DAP fertiliser in April 2023 and that it was delivered that month. Mr Repacholi's explanation that a large quantity of this fertiliser was delivered to Belconnen is consistent with the inherent probabilities. While I do not question Mr Burrows' experience of farm work generally and his understanding of different types of fertiliser, given he is a party and was keen to be an advocate in his own cause, I have reservations about the reliability of his evidence about the type of fertiliser he saw in the Belconnen fertiliser shed in June 2023.
For these reasons the defendants have not made out their claim for the conversion of the fertiliser.

The grain claim

The defendants claim that on 10 June 2023 Mr Repacholi took about 1,200 tonnes of Mr Pond's wheat that was stored in silo 1 on Coralinga.[449]
[449] Defence [74] - [81].
The defendants' case rests on three principal contentions.[450] These are:
(a)Mr Pond harvested at least 1700 tonnes of wheat in the farming seasons between 2020 and 2022.
(b)At least 1,200 tonnes of that wheat was stored in silo 1 as at June 2023.
(c)On 10 June 2023 Mr Repacholi took the wheat from silo 1 and thus converted it.
[450] Defendants' closing submissions [176].
Mr Repacholi contends the claim is not supported by the records of Mr Pond's farming activities that are available nor by the inherent probabilities.[451] Mr Repacholi maintained that in November 2022 he was given permission by Mr Pond to store grain in silo 1 and he stored grain he had harvested in that silo before it was sold in about April 2023.
[451] Plaintiffs' closing submissions [186].
A substantial volume of detailed evidence was adduced in relation to this claim and there are various subsidiary issues which I do not need to determine. In my judgment the claim fails because the defendants are unable to prove that silo 1 contained 1,200 tonnes of grain belonging to Mr Pond.
Put shortly, the contemporaneous documentary evidence of the extent of Mr Pond's farming activities is exiguous. It does not satisfy me that Mr Pond harvested enough grain to warrant the conclusion that he had retained 1,200 tonnes. Separately, it is very unlikely Mr Pond would have retained that quantity of grain when he was required to sell Pinnacles West to discharge his bank debt.
A convenient starting point is Mr Pond's financial statements for the financial year ending 30 June 2022.[452] These record Mr Pond's income from 'wheat farming' was $15,774 and other income (from the disposal of plant, rebates and subsidies and rent) of approximately $338,000. They record total expenses of $221,242 of which $57,915 was depreciation and $38,000 was rates and taxes. The financial statements record current assets of $1,592. The current liabilities were a secured bank overdraft of $293,000 and an unsecured personal loan of $10,000.
[452] Exhibit P1, TB 17.
Mr Pond's financial statements for the financial year ending 30 June 2023 record no income from farming, current assets of approximately $10,000 and current liabilities of $10,000 being the unsecured personal loan that appeared in the year ending June 2022 financial statements.[453]
[453] Exhibit P1, TB 116.
The defendants contend Mr Pond seeded at least 3,060 acres of wheat in the 2020, 2021 and 2022 seasons.
In relation to the 2020 season the defendants rely on Mr Burrows evidence to the effect he assisted and personally observed Mr Pond seeding between 4,000 and 4,500 acres of which half was seeded with wheat.
In relation to the 2021 season the defendants rely on what was referred to as a 'mud map' drawn by Mr Pond in his 2022 diary and titled 'Plan of crop on L/L + WHill 2021' that appeared to record the areas of Lowlands and Woodhill seeded by him in 2021 which collectively amounted to 1,060 acres.[454] The mud map is reproduced below:
[454] Exhibit P1, TB 195.
In relation to the 2022 season the defendants contend the court should infer there was an amount of wheat seeded and harvested in the 2022 season though the amount cannot be determined.[455] The defendants rely on entries in Mr Pond's diary that record him working on his land.[456]
[455] Defendants' closing submissions [183].
[456] Exhibit P1, TB 195.
By reference to evidence given about yields the defendants contended Mr Pond harvested at least 1,700 tonnes of wheat over the 2020, 2021 and 2022 seasons.
The only evidence of Mr Pond selling wheat was three invoices recording the sale of 260 tonnes of wheat in 2021.[457] The defendants say the absence of evidence of any other sales supports the conclusion that Mr Pond was stockpiling wheat to take advantage of price increases.[458]
[457] Exhibit P1, TB 5, TB 6 and TB 7.
[458] Defendants' closing submissions [193].
In February 2024 Mr Burrows arranged the sale of 173.5 tonnes of wheat stored in silos 3, 5, 6 and 7 on Coralinga.[459]
[459] Exhibit P1, TB 177.
The plaintiffs contend that from 2020 the scale of Mr Pond's personal farming activities progressively diminished. The areas of land he leased to others increased. The plaintiffs point to the following entries in Mr Pond's diary they say indicate Mr Pond was farming on a very reduced scale.
(a)In 2020 Mr Pond:
(i)sold 57 tonnes of wheat.[460]
[460] Exhibit P1, TB 195.
(ii)seeded the farms of Coralinga and Hazeldean.[461]
[461] Exhibit P1, TB 195.
(iii)harvested 'pretty well nothing' from 60 hectares on Pinnacles as a result of spray damage to the Havoc wheat crop, and otherwise at 'a little less than 1T per ha' as at late November.[462]
[462] Exhibit P1, TB 195.
(b)In 2021 Mr Pond recorded in his diary that: [463]
[463] Exhibit P1, TB 231.
(i)He seeded Havoc wheat in a patch at Coralinga of about 40 - 45 acres and referred to another 45 acres.
(ii)He stored 24 tonnes of barley in each of the 'two big silos' and had 'wheat to grade'.
(c)In 2022 Mr Pond recorded that he:[464]
(i)had spent an hour and a half seeding one paddock east of Ruth's house.
(ii)'So far' had two big silos at Bobs approx. 24 T each graded feed barley (48 T the two).
(iii)had seeded with barley areas of 20, 21, 45 and 70 acres.
(iv)had seeded with wheat, areas of 12 and 21 acres.
[464] Exhibit P1, TB 195.
I accept Mr Pond was a sole trader who may have had no need for detailed business records of his farming activities. This may explain the absence of any record of the quantity of wheat harvested by him in the period 2020, 2021 and 2022 seasons but in the absence of any record I am unable to accept the defendants' contentions in respect of the quantity of grain harvested by Mr Pond. I cannot attribute to the mud map the evidentiary significance attached to it by the defendants. It is simply too difficult to place a reliable interpretation on it. Even if I were to accept it as an accurate record of areas seeded by Mr Pond it contains no information about the quantity of wheat harvested. In my assessment the propositions the defendants ask the court to draw as inferences are no more than conjecture.
Further, in my view there is much force in the plaintiff's contentions that Mr Pond's farming activities, at least in 2021 and 2022, were very much reduced. There are two reasons for this view. The first is that the diary entries, such as they are, suggest small scale farming activities. The second reason lies in Mr Pond's failing health. There is no evidence to suggest that Mr Pond was incapacitated to the point to which he could not do any farm work, I accept he was an active older man, but he was elderly and he had experienced relatively serious health problems.

Conclusion and orders

The plaintiffs' claims will be dismissed. The defendants have succeeded in establishing the sale contract should be set aside and their claims for possession of the various farms occupied by Mr Repacholi. The defendants' conversion claims have failed.
I will hear from the parties as to the orders to be made and costs.

Appendix 1

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MH
Associate to the Honourable Justice Tottle
1 OCTOBER 2025

[175] - [176]; approved in Mercanti v Mercanti [2016] WASCA 206; (2016) 50 WAR 495 [381].

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established