Wilcox v Chapple

[2024] NSWSC 1394

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Wilcox v Chapple [2024] NSWSC 1394

Hearing dates:

12 – 15 August 2024; 29 August 2024

Date of orders:

5 November 2024

Decision date:

05 November 2024

Jurisdiction:

Equity

Before:

Ward P

Decision:

In both proceedings 2021/59314 and 2023/168649:

1.   Dismiss the proceedings with costs (reserving the question whether there should be an indemnity costs order).

2.   Direct the defendants to file and serve within 14 days any submissions in support of an application for indemnity costs.

3.   Direct the plaintiff to file and serve within 14 days thereafter any submissions opposing any application for indemnity costs.

4.   Direct the defendants to file and serve any brief reply submissions within 7 days of receipt of the plaintiff’s submissions.

5.   Note that any application for indemnity costs will be determined on the papers.

Catchwords:

EQUITY – Trusts – Where plaintiff alleges that rural properties in Walgett are held on express trust for the benefit of himself and the fourth defendant – Where trust established in 1962 over a monetary sum for the benefit of plaintiff’s mother – Whether properties held on same trust – Where plaintiff alleges various conversations regarding the fact of the properties being held on trust – Where plaintiff’s claim fails on its merits – Where plaintiff’s claims have been released – Where plaintiff is estopped by issue estoppel and Anshun estoppel

SUCCESSION – Family provision – Claim by plaintiff for provision from stepfather’s estate – Where plaintiff is not an eligible person – Where no factors warrant the grant of provision – Where lack of provision justifiable in circumstances of estrangement – Where adult stepchild not a natural object of testamentary intention

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 58, 62, 64

Crimes Act 1900 (NSW), s 135

Equity Act 1880 (NSW)

Evidence Act 1995 (NSW), s 131(1)(a)

Family Law Act 1975 (Cth), ss 114S, 114Q

Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW)

Limitation Act 1969 (NSW), s 47

New South Wales Act 1823 (4 Geo IV c 96), s 9

Succession Act 2006 (NSW), ss 57, 59, 60, 63, 95, 96, Ch 3

Supreme Court Act 1970 (NSW), ss 22, 75A, 101

Supreme Court of Judicature Act 1873 (36 & 37 Vict c 66)

Trustee Act 1925 (NSW), s 63

Uniform Civil Procedure Rules 2005 (NSW), rr 34.1, Pt 36.15

Cases Cited:

Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Armitage v Nurse [1997] EWCA Civ 1279

Barrett Property Group Pty Ltd v Dennis Family Homes Pty Ltd (No 2) [2011] FCA 276

Blair & Perpetual Trustee Co Ltd v Curran (Adam's will) (1939) 62 CLR 464; [1939] HCA 23

Bosch v Perpetual Trustee Company [1938] AC 463

Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44

Burnham v City of Mordialloc [1956] VLR 239

Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502; [1988] HCA 21

Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245; [2010] NSWCA 33

Chapple v Wilcox [2014] NSWCA 392

Clone Pty Ltd v Players Pty Ltd (In liq) (2018) 264 CLR 165; [2018] HCA 12

Coles v Burke (1987) 10 NSWLR 429

Cong v Shen (No 3) [2021] NSWSC 947

Coshott v Burke [2013] FCA 513

CSR Ltd v Amaca Pty Ltd (2016) 62 VR 359

D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12

Daley v Donaldson [2022] NSWCA 96

Derry v Peek [1889] UKHL 1

Douglas v Mikhael [2024] NSWCA 89

Farrow Mortgage Services Pty Ltd v Hogg (1995) 64 SASR 450

Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630

Field v Commissioner for Railways (NSW) (1957) 99 CLR 285; [1957] HCA 92

Foundas v Arambatzis (2022) 109 NSWLR 73; [2022] NSWCA 113

Fysh v Page (1956) 96 CLR 233; [1956] HCA 13

Galafassi v Kelly (2014) 87 NSWLR 119; [2014] NSWCA 190

Gamser v Nominal Defendant (1977) 136 CLR 145; [1977] HCA 7

GPI Leisure Corporation Ltd (in liq) v Yuill (1997) 42 NSWLR 225

Grant v John Grant (1954) 91 CLR 112; [1954] HCA 23

Green v Gaul [2006] EWCA Civ 1124; [2007] 1 WLR 591

Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231

Harrison v Schipp (2002) 54 NSWLR 612; [2002] NSWCA 78

Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255

Henderson v Henderson (1843) 3 Hare 100

Hunter v Hunter (1987) 8 NSWLR 573

In re Loftus (dec’d) [2005] EWHC 406

In re Pauling’s Settlement Trusts, Younghusband and others v Coutts & Co [1964] Ch 393

In re St Nazaire Co (1879) 12 Ch D 88

Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34

Leary v NSW Trustee and Guardian [2017] NSWSC 1113

Liu v Fairfax Media Publications Pty Ltd [2012] NSWSC 1352

McDonald v McDonald (1965) 113 CLR 529; [1965] HCA 45

McKenzie v Topp [2004] VSC 90

Murphy v Abi-Saab (1995) 37 NSWLR 280

Nashco Pty Ltd v Yang [2022] NSWCA 137

Nicholls v Carpenter [1974] 1 NSWLR 369

Orr v Ford (1989) 167 CLR 316; [1989] HCA 4

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

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45

Ramsay v Pigram (1968) 118 CLR 271; [1968] HCA 34

Re Dick [1953] Ch 343

Richards v Cornfed (No 3) [2010] NSWCA 134

Russell v NSW Trustee and Guardian [2013] NSWSC 370

Sarant v Sarant [2020] NSWSC 1686

Seven Network Ltd v News Ltd [2006] FCA 343

Sgro v Thompson [2017] NSWCA 326

Smith v NSW Bar Association (No 2) (1992) 176 CLR 256

Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17

Spies v Commonwealth Bank (1991) 24 NSWLR 691

Stone v Stone [2016] NSWSC 605

Sze Tu v Lowe (2014) 89 NSWLR 317; [2014] NSWCA 462

Tamaya Resources Limited (in liq) v Deloitte Touch Tohmatsu (A Firm), in the matter of Tamaya Resources Limited (in liq) [2015] FCA 1098

The Public Trustee v Mullane (Supreme Court of NSW, 12 June 1992, unreported)

Thoday v Thoday [1964] 1 All ER 341; [1964] 2 WLR 371

Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28

Trevelyan v Charter (1835) 4 LJ (NS) Ch 209

Trustee for the Salvation Army (NSW) Property Trust & Anor v Becker & Anor [2007] NSWCA 136

Vatcher v Paull [1915] AC 372

Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11

Watson v Foxman (1995) 49 NSWLR 315

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

White v Overland [2001] FCA 1333

Wilcox v Chapple (No 2) [2021] NSWSC 1607

Wilcox v Chapple [2015] NSWSC 2154

Wilcox v Chapple [2020] NSWSC 1859

Wilcox v Chapple [2021] NSWSC 860

Wilcox v Chapple [2024] NSWSC 82

Wilcox v Wilcox (No 2) [2014] NSWSC 88

Wilcox v Wilcox (No 3) (Supreme Court (NSW), Pembroke J, 17 April 2014, unreported)

Wilcox v Wilcox [2012] NSWSC 1138

Wilcox v Wilcox [2019] NSWSC 306

Texts Cited:

J D Heydon and M Leeming, Jacobs’ Law of Trusts in Australia (8th ed, 2016, LexisNexis)

M Leeming, ‘Fusion-Fission-Fusion: Pre-Judicature Equity Jurisdiction in New South Wales 1824-1972’ in J Goldberg et al (eds), Equity and Law: Fusion and Fission (Cambridge University Press, 2019)

N Seddon, Seddon on Deeds (2nd ed, 2022, Federation Press)

S Janes et al, Wills, Probate and Administration Law in New South Wales (2nd ed, 2020, Thomson Reuters)

The Hon. P Keane, Spencer, Bower and Handley: Res Judicata (6th ed, 2024, LexisNexis)

Category:

Principal judgment

Parties:

Robert William Wilcox (Plaintiff)
John Francis Chapple (First Defendant)
Lorraine Monique Wye (Second Defendant)
Sanderson Estates Pty Ltd (Receivers & Managers Appointed) (Third Defendant)
Benjamin Ian Alexander Wilcox (Fourth Defendant)

Representation:

Counsel:
D Wilson (Plaintiff) (Solicitor)
P Afshar (First Defendant)
TE O’Brien (Second Defendant)
B Koch (Third Defendant)

Solicitors:
Wilsons Solicitors (Plaintiff)
Newnhams (First Defendant)
Bridges Lawyers (Second Defendant)
Peterson Haines (Third Defendant)

File Number(s):

2021/59314; 2023/168649

Publication restriction:

Nil

JUDGMENT

Overview

Parties

Equity Proceeding

Family Provision Proceeding

Chronology of events

Incorporation of Sanderson Companies

1962 Trust Deed

1980 Duffy Letter

Robert’s circumstances from 1986-2000

Ian Sanderson’s 1987 Will

Death of Linda Sanderson

Separation and divorce of Robert’s parents

Wangrawally Pastoral Co partnership

Patricia’s relationship with Trevor

Robert’s residence in 2000/2001

Ian Sanderson’s Power of Attorney – 17 April 2002

Ian Sanderson’s 2002 Will

Death of Ian Sanderson – 2010

2010 Proceeding

First hearing before Pembroke J

Second hearing before Pembroke J

Appeal

Patricia’s Wills

Patricia and Trevor’s marriage

Court of Appeal proceeding

Robert’s family provision claim relating to Patricia’s estate

Discovery of Duffy correspondence

Deregistration of Gidgerygah P/L

Application for access to Ian Sanderson’s Probate file

Request by Executor for lodgment of documents in relation to Sanderson Estates

.Proceedings by Ben

Trevor’s death

Procedural history of the present proceedings

Application to vacate hearing

Defendants’ position

Reply submissions

Determination

Application to adjourn proceedings and, inter alia, to re-open the case

Defendants’ submissions

Determination

Equity Proceeding

Pleaded claims

Part Barwon Vale

Gidgerygah

Shares in Sanderson Estates

2010 Proceeding and Court of Appeal Proceeding

Defences

Issues

Evidence

Evidence in Robert’s case

Robert

Robert’s whereabouts in 2002

Robert’s dealing with Mr Davie

Conversations in 2021 affidavit which were not included in 2011 affidavit

Facebook posts

Stuart

Tracy

Douglas

Evidence relied upon from material produced by Mr Oliveri (Exhibit K)

Evidence in Mr Chapple’s defence

John Chapple

Paul Duffy

Evidence in Monique’s defence

Monique

Trevor

Luke

Louise

Hamish

Ms Robinson

Mr Hatton

Evidence as to costs of the proceedings

Credibility of witnesses

Robert

Determination as to Robert’s credibility

Other witnesses called by Robert

Defence witnesses

Release

Defendants’ submissions

Robert’s submissions

Determination

Are the claims time barred?

Defendants’ submissions

Robert’s submissions

Determination

Res judicata/Anshun estoppel

Res judicata or issue estoppel

Anshun estoppel

Robert’s submissions as to the issue of estoppel

Determination

Res judicata / Issue Estoppel

Anshun Estoppel

Trust claims

Robert’s submissions as to trust claims

Defendants’ submissions on trust claims

Determination

Setting aside of judgments for fraud

Defendants’ submissions

Determination

Family Provision Proceeding

Eligibility

Determination as to eligibility

Factors warranting

Determination as to factors warranting

Adequacy of provision

Determination as to adequacy of provision

Determination as to what provision would be adequate

Ultimate determination

Costs

Orders

JUDGMENT

1. WARD P: Before me for concurrent hearing at first instance commencing on 12 August 2024 were two separate but related proceedings in the Equity Division, in both of which Mr Robert Wilcox (Robert) is the plaintiff.

2. First, a proceeding commenced in 2021 (2021/59314) against (among others) Mr John Chapple, a solicitor who is the executor of the estate of Robert’s late mother (Ms Patricia Wilcox) (Equity Proceeding).

3. Second, a proceeding commenced in 2023 (2023/168649) against Ms Lorraine Monique Wye, known as Monique, the executor of the estate of her late father, Mr Trevor Harland (Patricia’s second husband and hence step-father of both Robert and his brother Mr Benjamin Wilcox (Ben)) (Family Provision Proceeding).

4. The parties to the respective proceedings are described in more detail below. I generally refer to the family members by their first names (or in Monique’s case the first name by which she is known) without intending any disrespect. Pursuant to order made by Kunc J on 17 June 2024, evidence in the first proceeding was taken to be evidence in the second and vice versa.

Overview

5. Briefly, by way of overview, the subject matter of the respective proceedings is as follows.

6. In the Equity Proceeding, Robert seeks declaratory and other relief in respect of certain rural properties located in Walgett (a property known as part Barwon Vale and a property known as Gidgerygah), which he contends are (and have been since at least 25 September 1980) held on trust for him and his brother, Ben. Robert also seeks declaratory and other relief in relation to 50% of the shares in Sanderson Estates Pty Ltd (Sanderson Estates) (the registered proprietor of the part Barwon Vale property), which he contends Ben holds on trust for him.

7. After the close of evidence in his case but before final closing submissions, Robert sought (unsuccessfully) to expand his claim to include a claim for declaratory and other relief in relation to any property that, at the time of the death of his grandfather, the late Ian Francis Sanderson, on 17 January 2010, was held in the registered proprietorship of any of three private companies (the Sanderson Companies as identified below) which were formerly controlled by his grandfather.

8. In the Family Provision Proceeding, Robert claims provision out of the estate of his late step-father, Trevor, who died in 2022 while the Equity Proceeding was still on foot.

9. In summary, for the reasons which follow I have concluded that both sets of proceedings should be dismissed with costs.

Parties

Equity Proceeding

10. In the Equity Proceeding, the first defendant, as noted above, is Mr Chapple (Patricia’s executor), referred to in various of the submissions as the Executor; the second defendant is now Monique, in her capacity as administrator of Trevor’s estate (Trevor having initially been joined as the second defendant in the proceeding); the third defendant is Sanderson Estates (one of the three Sanderson Companies), which owns the part Barwon Vale property and is now in receivership; and the fourth defendant is Ben (who is now an undischarged bankrupt).

11. One of the assets of Trevor’s estate is the property known as Gidgerygah, which was formerly owned by another of the three Sanderson Companies, I.F. Sanderson Pty Ltd (I.F. Sanderson), and was transferred to Trevor in 2018. I explain the shareholding of I.F. Sanderson (and Sanderson Estates) in due course. Suffice it here to note that Patricia bequeathed her shareholding in I.F. Sanderson to Trevor and her shareholding in Sanderson Estates to Ben under her will dated 30 June 2014. Monique (as administrator of Trevor’s estate) has no direct interest in Robert’s claim in relation to the part Barwon Vale property and shares in Sanderson Estates (but her submissions in the Equity Proceeding were adopted by Mr Chapple, who does have a direct interest in that claim as executor of Patricia’s estate). Moreover, the determination of Robert’s claim in relation to the part Barwon Vale property and the shares in Sanderson Estates is indirectly of relevance to Monique in its potential impact on Robert’s financial circumstances which are to be taken into account in his claim in the Family Provision Proceeding.

12. The receivers of Sanderson Estates played only a minor role in the hearing (being represented by counsel, Mr Koch, and a solicitor, Ms Petersen, for certain submissions during the hearing). As already noted, Patricia’s shareholding in Sanderson Estates was left by her to Ben in her 30 June 2014 will (the 2014 Will). The receivers maintain the company’s defence to Robert’s claims.

13. As to Ben, who was declared bankrupt on 14 September 2023, no application was made by Robert for leave to proceed against Ben following his bankruptcy. As noted above, in the Equity Proceeding Robert claims an equitable interest in 50% of the shares in Sanderson Estates. In the absence of leave to proceed against Ben, who remains an undischarged bankrupt, the relief claimed in relation to the shares in Sanderson Estates owned by Ben cannot be pursued and this claim must be dismissed. Ben’s trustees in bankruptcy have accordingly played no role in the hearing itself, although Mr Koch of Counsel made brief submissions for the trustees in bankruptcy when the matter was listed for closing oral submissions on 26 August 2024 (in relation to the notice of motion filed by Robert, seeking among other things to re-open his case). In the course of closing submissions, Ben made brief oral submissions (to the making of which no objection was taken) broadly indicating his view that there was not enough evidence to support Robert’s claim, which I understood to be accepting of his grandfather’s testamentary dispositions notwithstanding that they may well have been a disappointment to him). I note that Robert has deposed (see his 13 December 2021 affidavit at [16]) (2021 Affidavit) that he and Ben ceased being on amicable talking terms on or about 10 February 2021.

14. Both Ben’s bankruptcy trustees and the receivers appointed to Sanderson Estates were excused from appearing in the proceedings. Accordingly, when I refer to the defendants collectively I am referring (unless otherwise indicated) only to Mr Chapple and Monique.

Family Provision Proceeding

15. In relation to the Family Provision Proceeding, Monique was joined as a defendant together with Raymond John Watson (Trevor’s son from a previous marriage and the then co-executor of Trevor’s estate). However, Monique was the only active defendant in that proceeding, having become the administrator of Trevor’s estate pursuant to a Grant of Administration issued on 16 May 2024 (as explained by Monique’s solicitor, Ms Rebekah Ord, in her affidavit sworn 12 August 2024 to which I refer further below). Robert was given leave on 17 June 2024 to amend the summons in the Family Provision Proceeding to reflect this change but has not done so (Ms Ord’s 12 August 2024 affidavit at [2]).

Chronology of events

16. To set in context the issues which have arisen in the respective proceedings, I note the following by way of a brief chronology of events.

17. Before his death, Ian Sanderson (Patricia’s father; and Robert and Ben’s grandfather) conducted a farming business on a number of properties in the Walgett area. He and his forebears had farmed the land for well over a hundred years (as Robert has emphasised in his submissions). Ian Sanderson and his wife, Linda Sanderson, resided on a property known as Allawa (sometimes spelt Allawah in the documents in evidence), which formed part of the family farming operations. They had one child, Patricia, who was born in 1943.

18. Patricia was first married to Robert Wilcox Snr (who is now also deceased). They had two children, Robert (born in 1968) and Benjamin (known as Ben) born in 1974. The family resided on the Walgett property known as Wangrawally. Patricia and Robert Snr divorced in 1994. Patricia was then in a long term de facto relationship with Trevor from about 1997 and they married shortly before her death in 2014.

Incorporation of Sanderson Companies

19. As adverted to above, there were three private companies incorporated in Ian Sanderson’s lifetime (to which I have referred as the Sanderson Companies): Sanderson Estates, incorporated on 27 June 1962; Gidgerygah Pty Ltd (to which I will refer as Gidgerygah P/L so as to distinguish it from the property known as Gidgerygah), incorporated on 12 May 1965; and I.F. Sanderson, incorporated on 11 October 1967.

20. On its incorporation in 1962, the shareholding of Sanderson Estates comprised one ordinary share held beneficially by Patricia and one B class share held beneficially by Ian Sanderson. By its Articles of Association, the B class share enjoyed the right “to be paid out of the profits of each year a fixed dividend” of 5% on the capital of the share” (£1 each) and the right to “return of that capital in priority to the ordinary shares”. The B class share had no “right to any further participation in profits or assets” and the holder of that share was not entitled in a winding up to “any sum over and above the amount of capital paid by him [or her] on such shares”. Only the B class shareholder was entitled to attend and vote at general meetings. There were restrictions on the transfer of shares in the company, the directors having the absolute discretion to refuse a transfer (see cl 27) and invitations to the public to subscribe for shares were prohibited (cl 3(c)).

21. In June 1962, Sanderson Estates purchased the property known as part Barwon Vale (the Barwon Vale property comprises a number of titles).

22. On its incorporation in 1967, the shareholding of I.F. Sanderson comprised two A class shares, then held by two accountants. By its Articles of Association, the A class shares enjoyed the right “to be paid out of the profits of each year a fixed dividend” of 5% on the capital of the shares” (£1 each) and the right to “return of that capital in priority to the ordinary shares”. The A class shares had no “right to any further participation in profits or assets”. Only the holders of A class shares were able to attend or vote and general meetings. On or about 23 February 1968, Patricia was allocated 10 ordinary shares each fully paid. The two A class shares were then beneficially held by Ian Sanderson and his wife, Linda respectively (see historical shareholdings recorded in the 1990 annual return for the company).

19. According to Robert’s statement of claim (at [13]), in 1968, I.F. Sanderson purchased the property known as Gidgerygah (which also comprises a number of titles). Copies of deeds of assignment or transfers in relation to various of the properties were in the materials sought to be tendered after the close of evidence in the case but not admitted, as I explain in due course.

20. It is not necessary to consider the shareholding of Gidgerygah P/L (save to note that it followed a similar pattern in that the shares were recorded as beneficially held). This company became the registered proprietor of Wangrawally (where Patricia and Trevor ultimately resided).

21. On the incorporation of each of the Sanderson Companies, Ian Sanderson was a director of those companies. He remained a director of those companies at the date of his death on 17 January 2010. Patricia was also a director of Sanderson Estates from its incorporation and remained so until her death on 19 August 2014. The second director of each of the other two Sanderson Companies (Gidgerygah P/L and I.F. Sanderson) from incorporation until her death on 27 December 1992 was Ian’s wife, Linda. Patricia became a director of those companies on 14 December 1992.

22. The 1990 annual return for Sanderson Estates, certified as correct by Ian Sanderson, disclosed that the shares of Ian Sanderson and Patricia respectively were held beneficially and that the company did not act as a trustee. The 1990 annual return for I.F. Sanderson was to similar effect. Subsequent annual returns in evidence disclose the same. Therefore, the respective company records do not support a conclusion that the shares in those companies were held on trust (whether under the terms of the 1962 Trust Deed to which I refer below or otherwise).

1962 Trust Deed

27. On 3 October 1962 (i.e., after the acquisition by Sanderson Estates of part of the Barwon Vale property), a Deed was executed by Jack Irwin Dent Sanderson (Ian Sanderson’s father) “of Barwon Vale” (as settlor) and Ian Francis Sanderson “of Allawa” (as “the Trustees” [sic]) (1962 Trust Deed), which recited that the settlor was desirous of settling the sum of ten pounds to be held on the trusts and for the ends and intents and purposes as thereafter declared (1962 Trust). (In Monique’s submissions this is referred to as the £10 Trust, a characterisation with which Robert cavils but which I understand to be descriptive only, by reference to the sum settled when the trust was established.) It may be noted that, by the time the trust under this trust deed was established neither the settlor (Jack) not the Trustee (Ian) was the legal owner of the part Barwon Vale property, which had already been acquired by Sanderson Estates.

28. By cl 1 of the 1962 Trust Deed, the trust fund (and the investments and property of every description for the time being representing the same) was to be held on trust to apply the whole or any part of the income as the Trustees may think fit to or for the maintenance, benefit, education or advancement of Patricia until she attained the age of 30; and, after she attained that age, to pay the income to her for life. On her death the trust fund was to be held on trust as to both capital and income for all or any then living children or child of the beneficiary (Patricia) who attained the age of 30 years and if more than one in equal shares.

29. Significantly, the 1962 Trust Deed also conferred on the Trustees the absolute discretion to pay over or transfer to Patricia, on or after she attained the age of 30, the whole or any part of the trust fund or so much thereof as shall not have been applied under any of the trusts therein or in any statute, whereupon the preceding trusts would absolutely cease and determine. In those circumstances the emphasis placed by Robert’s solicitor in the current proceedings on the 1962 Trust Deed containing no power of revocation seems of little force (29/8/24; T 335.13-46), so too the submission to the effect that “the ends and intents and purposes” of the trust were to the benefit of Robert and Ben absolutely. In fact, there was an ability for the trust to be collapsed in favour of Patricia once she turned 30.

30. The coversheet of the 1962 Trust Deed shows that it was prepared by the firm then known as Garland Seaborn & Abbott solicitors (now Garland Hawthorn Brahe).

31. This document was only discovered by Monique’s son, Hamish, shortly before this hearing and was provided to Robert on 6 August 2024. It is fair to say that the production of this document appears to have fuelled Robert’s suspicions as to the conduct of various persons involved in the many sets of proceedings in which he has been involved over the years in relation to his grandfather’s estate and the Walgett Properties (see below). It certainly confirmed his belief (held, on his own evidence, from many years before his mother’s death) that his grandfather had established a trust for his and Ben’s benefit.

1980 Duffy Letter

32. It seems that in about September 1980 Patricia made an enquiry of Garland Seaborn & Abbott in relation to her grandfather’s (Jack Sanderson’s) estate (and also in relation to her father’s will). I say this because there is in evidence a letter dated 15 September 1980 from Mr Paul Duffy, then a solicitor at that firm, to Patricia, in which Mr Duffy apologised for not writing sooner but said that he had been away from work sick for a week. It is not clear what had prompted Patricia’s enquiry. Mr Duffy wrote that he had discussed Patricia’s letter (a copy of which is not in evidence) informally with Mr Bernard Bambach (who Mr Duffy, in his evidence in this Court, identified as being Ian Sanderson’s solicitor at the firm until Mr Bambach died in 1982 (14/8/24; T 223.24)), who advised that he had not heard from Patricia’s father (Ian Sanderson) recently nor was he expecting to; and that they were not able to disclose the contents of his (i.e., Ian Sanderson’s) will without his proper authority. In cross-examination, Mr Duffy agreed that Patricia had approached him (via telephone) to discuss her father’s will (14/8/24; T 226.5).

33. The letter also stated that, in relation to Patricia’s grandfather’s estate (i.e., the estate of Jack Sanderson) and “the company”, Mr Duffy would have discussions with Ian Stephenson (Ian Sanderson’s accountant) and give Patricia a further report by the end of the month. It is not clear from this letter to what company Mr Duffy was there referring but, from the subsequent letter (see below), it can be inferred that it was Sanderson Estates.

34. Mr Duffy then sent a letter dated 25 September 1980 to Patricia (the Duffy Letter), which assumed no little prominence in the proceedings, in which Mr Duffy referred to a discussion he had had with “Ian Stevenson” since the previous letter and advised, relevantly, that:

Under your grandfather’s [i.e., Jack Sanderson’s] will Barwon Vale was left to your father [Ian Sanderson] and the balance of the estate was left in certain proportions between your father and your late aunt. Barwon Vale was definately [sic] left absolutely to your father, with no conditions.

Your interests in Sanderson Estates Pty Limited are covered through trusts. I understand that your father is the trustee of the trust, and has power under this document to accumulate income for you during your lifetime, and then to pay the capital out to your children. This is a very broad outline of the trust deed, which also gives the trustee very wide powers to make capital distributions to a person who is strictly speaking only entitled to income. I feel I should make it clear however that such payments are entirely at the discretion of the trustee.

[my emphasis]

35. This “very broad outline of the trust deed” in the Duffy Letter is thus consistent with the terms of the recently discovered 1962 Trust Deed (though noting that only the sum of £10 was settled on that trust at its inception). The letter does not make clear how it was thought that Patricia’s “interests” in Sanderson Estates were covered “through trusts” (and it is likely that the use of the plural was in error since there is only reference to “the trust” and “the trust deed” in the singular). Patricia was at this stage the beneficial owner of one ordinary share of the company (according to the historical company records). I note that Mr Duffy’s evidence in cross-examination was that he had no involvement in, or familiarity with, Ian Sanderson’s property affairs until after the death of Mr Bambach in about 1982 (14/8/24; T 223.23-31), and Mr Duffy explained that the comments he made in the Duffy Letter were as a result of what Mr Stephenson told him (14/8/24; T 225.11). There is therefore nothing to shed light on what Mr Stephenson knew of the trust arrangement(s) at the time of the conversation with Mr Duffy which then made its way into the Duffy Letter.

36. Pausing here, Robert has variously alleged that Ian Sanderson was the trustee of the alleged trusts (in his initial pleading) and then (in his amended pleading current at the time of the hearing before me) that Sanderson Estates was the trustee of the trust that held part Barwon Vale and that I.F. Sanderson was the trustee of the trust that held Gidgerygah. In closing submissions (presumably having regard to the discovery of the 1962 Trust Deed), it appears that Robert has reverted to a contention that Ian Sanderson was the trustee of the trust (or trusts) under which he claims an interest to the part Barwon Vale and Gidgerygah properties (though there was some acknowledgment as to the “mystery” as to the “connectivity” of the assets of the Sanderson Companies to the alleged trust (or perhaps trusts) (29/8/24; T 312.9).

37. I also note that Mr Duffy gave evidence that he telephoned the accountant’s office in 2010 when Ian Sanderson died and was informed that the old trusts had all been wound up long ago (affidavit sworn 3 May 2022 of Mr Duffy at [5]) but in cross-examination there was some doubt as to the reliability of his recollection of that conversation (see further below).

Robert’s circumstances from 1986-2000

38. Robert has deposed that he commenced working full time at the Walgett Properties in 1986 aged 19, and that he worked full time on the Walgett Properties between 1986 and 1993. In oral submissions, it was said more than once that Robert had worked on the Walgett Properties for his grandfather for 45 years or for the whole of his childhood but it was accepted that there was an element of exaggeration in that proposition (a 45 year time span would have dated back to when Robert was born since he was 46 years old at the time of Trevor’s death in 2022) (29/8/24; T 337.25-50). There was conflicting evidence as to Robert’s work on the Walgett Properties over the years.

39. It is not disputed that from 1981 to 1984 Robert was a boarder at The Kings School in Sydney. His evidence is that he left at the end of year 10. Robert was then enrolled from 1985 to 1986 at Longreach Pastoral College. After his time in Longreach, Robert undertook various vocational courses and was thus not living full time on the Walgett Properties over the years that he was studying or undertaking vocational courses. Indeed, Robert’s evidence in the 2010 Proceeding before Pembroke J was that he was not on his grandfather’s properties on a full time basis after 1992 (8/10/12; T 35.1-14).

40. Robert has deposed to various conversations with his grandfather in relation to the family properties, to the effect that the properties were in a trust for Robert and Ben; and that “all this country” would be his one day (see, for example, [24], [31]-[33], [40], [46], [51] of Robert’s 2021 Affidavit). I consider his evidence in this respect in due course. Robert has also deposed to conversations with his mother, Patricia, in which he says that there was reference to a trust for the boys (see, for example, at [36], [45] of Robert’s 2021 Affidavit). Again, I consider that evidence in due course.

Ian Sanderson’s 1987 Will

41. On 7 October 1987, Ian Sanderson made a will (the 1987 Will) in which he appointed his daughter, Patricia, and his accountant, Ian Stephenson, as his executors and trustees. Under this will, Ian Sanderson bequeathed all his real and personal estate to his trustees to invest and pay the income to his wife, Linda, during her lifetime and after her death to his daughter Patricia for her sole use and benefit absolutely (but with a gift over if she predeceased her parents to his grandsons (Robert and Ben) if they had then or thereafter attained 25 years) in equal shares). The 1987 Will did not identify that any of the farming property was held on trust by the testator. Linda made a will at the same time in similar terms to that of her husband.

Death of Linda Sanderson

42. Linda Sanderson died on 27 December 1992.

Separation and divorce of Robert’s parents

43. Patricia and Robert Snr separated in January 1993 and their marriage was dissolved in April 1994.

44. It appears that, at least as at 25 March 1996, there was an issue as between the former spouses (Patricia and Robert Snr) as to whether the shares held by Patricia in the Sanderson Companies had any value (having regard to what is said in an ex tempore judgment of Cohen J in the Family Court of that date, referred to by Robert in his 2021 Affidavit at [44]). However, without knowing the basis on which it was apparently asserted by “Ian Stevenson”, in an affidavit filed in March 1996 to which Cohen J there referred, that the shares were worthless, little weight can be placed on this assertion. At that stage, of course, Patricia did not hold a controlling share in any of the Sanderson Companies (the voting shares being held by Ian Sanderson) and hence one could expect that there might well be scope for debate as to the then value of Patricia’s shares. It certainly could not be assumed that the shares would be valued simply by reference to the value of the properties then held by the respective companies.

45. Without expert evidence one would not know what discount, if any, would have been applied to Patricia’s holding in family companies at a time when the controlling shareholder was the family patriarch and still alive. Hence, I do not accept the argument now put for Robert that this supports a conclusion that the relevant properties were held by the Sanderson Companies in trust or that the shares in those companies were held in trust. In any event, there was no evidence as to this in the present proceedings beyond evidence of what was apparently asserted in the earlier family law proceeding. Similarly, although Monique says in her submissions that Patricia included the shares as hers in the family law proceeding with Robert Snr 1996, in respect of which proceeding Patricia was supported by Ian Sanderson, there is insufficient information as to those proceedings to draw any conclusion in relation to that.

46. After their parents’ separation, Robert lived for a time with Patricia on Wangrawally. There is a dispute as to the length of time that Robert resided with his mother and Trevor over the years, as opposed to with his grandfather, Ian Sanderson (an issue relevant to Trevor’s claim that he was dependent on Trevor and a member of his household at some time so as to be eligible to claim provision out of his estate), as discussed in due course.

Wangrawally Pastoral Co partnership

47. The farming business was conducted (for a number of years) through a partnership between Ian Sanderson and Patricia (known as the Wangrawally Pastoral Co). Patricia’s 2014 Will makes reference to various partnership businesses and assets. It is not necessary to consider those in any detail.

Patricia’s relationship with Trevor

48. Patricia and Trevor began a relationship at around the time of the breakdown of Patricia’s marriage to Robert Snr. According to Trevor’s affidavit sworn 19 November 2020 – Ex 3), his relationship with Patricia began in approximately 1993 when he was working for Ian Sanderson and living on Gidgerygah. Trevor deposed that he and Patricia started living together at Wangrawally in about late 1996 or 1997. Monique’s evidence is to similar effect.

49. Although it was put to Robert in cross-examination that he blamed the relationship or Trevor for the breakdown of his parents’ marriage, his somewhat dismissive response was that it “takes two to tango”) (13/8/24; T 154.30). However, it is fair to say that Robert has not been reticent in casting doubt on the genuineness of the couple’s relationship (see for example at [45] of his 2021 Affidavit in which he describes Patricia as living with Trevor and his “same sex partner” – an allegation not contained in the affidavit sworn by Robert in 2011 prior to Trevor’s death when he could have disputed it). This quite obviously remained Robert’s view when cross-examined (12/8/24; T 69.50; 13/8/24; T 157; T 160); including making snide comments as to Patricia being Trevor’s “golden goose”. Nor, as I explain in due course, has Robert shied away from making serious allegations on Facebook posts as to the character of both Patricia and Trevor after their death (suggesting that if they were still alive they would be in gaol), although in re-examination before me (when invited to say something about this) he said that this was a mistake to do and he would not repeat that conduct (15/8/24; T 281.18).

Robert’s residence in 2000/2001

50. Robert’s evidence is that in around 2000 he was working in the Northern Territory (having been “sent there” by Ian Sanderson to look for store cattle) and that in December 2001 he returned from the Northern Territory and after his return lived with Ian Sanderson at Allawa for “well over a year” (see [45], [47] of his 2021 Affidavit). Robert relies on his residence at Allawa over this time for his assertion that Ian Sanderson did not execute the Power of Attorney and Will in 2002 – see below. Robert was challenged on this evidence in cross-examination to which I refer in due course.

Ian Sanderson’s Power of Attorney – 17 April 2002

51. On 17 April 2002, Ian Sanderson executed a General Power of Attorney, appointing Patricia as his attorney. On that document, Mr Duffy certified that he had explained the effect of the General Power of Attorney to the grantor (Ian Sanderson) and that he had attested the execution of the Power of Attorney by the grantor. Robert disputes the validity of this document – see [48] of his 2021 Affidavit, asserting that Mr Sanderson “did not leave the Properties for an extended period of time in 2002 that would’ve allowed him to travel to Sydney”.

Ian Sanderson’s 2002 Will

52. In 2002, Ian Sanderson made a new will (the 2002 Will) appointing Patricia as his sole executor and trustee (with Mr Duffy to be appointed as his executor and trustee if the appointment of Patricia failed). By the 2002 Will, Ian Sanderson left his estate to his trustee to pay all debts, testamentary expenses and the like and then to hold the balance absolutely for Patricia (and if she predeceased him, Robert and Ben in equal shares).

53. The 2002 Will dated 21 August 2002 was, on its face, attested by Anne and Cecil Davie, retirees whose address was recorded on the 2002 Will as being in Tamworth. The attestation clause in terms attested to the 2002 Will having been signed by the testator in the presence of both the witnesses and attested by them in the presence of the testator and each other (though not as to where the 2002 Will was executed).

54. Robert also disputes the validity of the 2002 Will and has gone to great lengths to procure evidence from Mr Davie to the effect that he did not witness the execution of that will – see further below.

Death of Ian Sanderson – 2010

55. Ian Sanderson died on 17 January 2010. As noted above, pursuant to his 2002 Will, Ian Sanderson’s estate was left to Patricia, who was appointed as his executor and trustee.

56. Patricia was granted probate of the 2002 Will on 17 October 2011. In the inventory of property of the deceased attested to by Patricia in her application for a grant of probate, Patricia listed part Barwon Vale and Allawah [sic] (as well as other real estate) as being solely owned by the deceased; attributed a value of $1 to the deceased’s shares in Sanderson Estates and I.F. Sanderson; and stated that there was no property owned by the deceased on trust for another.

2010 Proceeding

57. Ian Sanderson’s death precipitated the commencement of what can only be described as an ongoing litigious saga. This began when Robert and Ben instituted proceedings in the Supreme Court (2010/426690) (the 2010 Proceeding) against Patricia (as executor of her father’s estate) seeking declaratory relief to the effect that they were entitled to the full beneficial interest in the Property (defined at [10] of the statement of claim as all of the land comprising the family farm and known as Allawa, Gidgerygah, Barwon Vale and Wangrawally; and the business Wangrawally Pastoral Co and the company Gidgerygah P/L (as well as all stock, plant and equipment related to the pastoral enterprise). A declaration was also sought that the Property stood charged in the plaintiffs’ favour to the extent of its value as at the date of death and an order transferring the Property into their names as tenants in common in equal shares, free from encumbrance.

58. The pleading in the 2010 Proceeding (relevant in considering the issue and Anshun estoppel arguments here raised by way of defence to the present claims) alleged: an oral promise “[f]or the entire duration of their lives” by the deceased that all of the property comprising the family farm and associated stock and equipment would be devised by the deceased’s will to the plaintiffs without encumbrance ([7]; [9]); that, in consideration of the promise, the plaintiffs worked on the Property for many years without any or adequate remuneration and in reliance on the promise and acted to their detriment in pursuing vocational and other training aimed directly at taking over ownership and management of the pastoral land and enterprise ([8]); and that the deceased was bound by that promise ([10]). The allegation that there was a promise, binding or otherwise, to devise the Property by will is inconsistent with an assertion that the Property was already impressed by a trust before the deceased’s death (although Robert did not seem to accept this in cross-examination). In any event, there was the further allegation in the pleading that, by such an agreement, the deceased had constituted himself a trustee of the Property (at [18]), which may overcome that inconsistency.

59. Further or in the alternative, it was alleged that the promises made by the deceased induced the plaintiffs to enter into an agreement with the deceased whereby each of the plaintiffs worked on the Property for little or no remuneration and set about various “vocational educations” designed to assist in the promised ownership of the Property ([11]).

60. In the alternative, it was alleged that the deceased was bound by an agreement to make provision in his will for a gift in favour of the plaintiffs of all of the land, stock, plant and equipment, free of any encumbrance ([12]).

61. Further or in the alternative, it was alleged that the deceased “in making the promises and agreement outlined above” represented that it was his intention to make his will in such a way as to ensure that the Property was left to the plaintiffs unencumbered ([13]).

62. At [14], it was alleged that the deceased was estopped from acting in a manner inconsistent with the representations made to the plaintiffs; at [15]-[16] that the deceased was in breach of his agreement; and at [17] that the plaintiffs suffered damage by being deprived of the value of the Property and of the opportunity to have the benefit of the Property.

63. At [18], as adverted to above, it was alleged that, by agreeing for valuable consideration to leave the Property by will, the deceased constituted himself a trustee of the Property and impressed the Property with a trust in favour of the plaintiffs; and, further, at [19] that by reason of the representations and estoppel arising by reason of the reliance and change of position by the plaintiffs, the Property stood charged in favour of the plaintiffs to the extent of its value as at the date of death.

64. In the alternative, Robert and Ben claimed provision out of their grandfather’s estate, alleging (among other things) that the deceased had a net worth of approximately $15m) ([23]).

65. Patricia, by her verified defence, denied or otherwise put in issue most of the allegations made in the claim, including making a positive denial of “any trust as alleged, that the deceased was a trustee as alleged, or that there was any valuable consideration, or consideration at all, as alleged” (see at [18]).

66. Robert swore an affidavit on 4 July 2011 (the 2011 Affidavit) which was filed in the 2010 Proceeding. That affidavit was exhibited to Robert’s 2021 Affidavit in the present proceedings and is thus in evidence before me. As will be considered in due course, there are a number of conversations referred to in the more recent (2021) affidavit that did not appear in the 2011 Affidavit (a matter to which Robert was taken, and in my opinion unable satisfactorily to explain, in cross-examination). So, for example, the conversations to which he deposes in his 2021 Affidavit at [30], [40], [45], [51], [54] but which are not included in the 2011 Affidavit. It is worth here noting that those more recently recounted conversations, with persons now deceased, raise matters that it may (and at least in the case of Patricia and Robert can confidently) be expected would have been challenged had the relevant persons still been alive when those conversations first appeared.

67. Significantly, at [61] of his 2021 Affidavit, Robert deposed that:

I did not mention the trusts in my affidavit sworn 4 July 2011 as the advice I received from my then solicitor, Robert Macauley was in words to the following effect “don’t mention the trusts because it will infuriate the Judge because you don’t have sufficient evidence and it is not what you are pleading”. I accepted his advice.

68. From the above, it can be seen that, on Robert’s own evidence, Robert was aware of matters that he contended gave rise to a trust at least as at the time his 2011 Affidavit was prepared for the purpose of the 2010 Proceeding (since otherwise the conversation to which he deposes with his then solicitor as to not mentioning “the trusts” would make no sense); and, indeed, on his evidence he knew from the time of the earlier conversations with his grandfather about the existence of a trust of some kind (though Robert insists this was meaningless to him at that time).

69. Robert’s evidence in cross-examination was inconsistent as to which solicitor (Robert Macauley, or his assistant Ben Andrews) gave him the advice not to “mention the trusts” but that does not gainsay the fact that, if the reason for the non-inclusion in his 2011 Affidavit of reference to “the trusts” was due to legal advice received to that effect, then Robert (or someone in his presence, such as his father who he said at one stage had been in the conference) must have said something at that stage about “the trusts” (or else the advice not to mention them would make no logical sense). See, for example, the cross-examination at 13/8/24; T 35 where, when shown the draft 2010 statement prepared by Ben Andrews after a conference with him in which there was no reference to conversations about a trust, Robert says that “probably we were told to take it out”. See also the evidence in cross-examination at 13/8/24; T 109.1 where Robert says that counsel gave him that advice as well (Mr Glissan QC). Robert also said that the advice was that “unless you had written evidence you couldn’t plead it”.)

70. There is some inconsistency between that evidence and the evidence given at 12/8/24; T 54.18-26; 13/8/24; T 118 as to Brenden Miller, a solicitor who acted for Robert in the later proceeding involving his mother’s estate, being the first person who gave Robert any “formal” advice about a trust and to him being “the first bloke that told me, you know, trust don’t mean anything” but perhaps that is explicable by the qualification as to “formal” advice and the different content of the advice.

71. An amended statement of claim was filed on 8 November 2011. In that pleading, the nature of the claim was identified as one of equitable estoppel, constructive trust, and a claim under the Succession Act2006 (NSW) (Succession Act). There was some amendment to the particulars of the trust claim, and some additional pleaded allegations as to the alteration by the plaintiffs of their position in reliance on the promise, representations and encouragement by the deceased (see for example [8A]) but in essence the structure of the trust claim remained as outlined above. (Insofar as there was an amended pleading permitted in the 2010 Proceeding, it cannot be suggested that there was no possibility to amend the pleading at that time to include the trust allegations now made.)

72. An amended defence, again positively denying the substantive allegations, was filed by Patricia. Patricia then swore an affidavit on 18 January 2012, in which she disputed a number of the assertions made in Robert’s affidavit.

First hearing before Pembroke J

73. The 2010 Proceeding was heard by Pembroke J in October 2012. In his first substantive judgment in the matter (Wilcox v Wilcox [2012] NSWSC 1138) (Wilcox (No 1)), delivered on 12 October 2012, his Honour identified three legal issues as arising for determination ([6]): first, whether there was a legally binding agreement between the testator (Ian Sanderson) and the plaintiffs; second, whether the testator made clear and unequivocal representations to the plaintiffs as to their inheritance from him, in reliance on which they acted to their detriment so as to give rise to an estoppel; and, third, whether the plaintiffs were entitled to a family provision order pursuant to s 59 of the Succession Act. Although expressed in that way, the conclusions reached on those first two issues were dispositive of the claims made as to the existence of a trust in respect of the Properties (and the answer to the third was predicated at least in part on that issue).

74. Pembroke J concluded that the answer to the first question (i.e., as to the alleged agreement) was “No”, noting that senior counsel for the plaintiffs did not press that submission. His Honour concluded that the second question (i.e., as to representations) was also to be answered in the negative, on the basis that the evidence of the supposed representations was not sufficiently clear or convincing; and that the statements made by the testator were no more than expressions of present expectation or prediction, not promises and that a reasonable person in the position of the plaintiffs would not have understood them otherwise.

75. His Honour had no hesitation in saying that each of the plaintiffs was an unimpressive witness on whose evidence he did not feel it prudent to act unless it was corroborated or contrary to their interest ([11]). Relevantly, his Honour described the plaintiffs as defensive, rather than frank and open; and fixated on their supposed right to their grandfather’s agricultural properties. His Honour said that both sought to use the opportunity of giving evidence to advance their perceived interests in the litigation rather than by giving a fair account of the relevant facts. As to Robert, his Honour said that he was particularly vindictive towards his mother and her partner (i.e., Trevor). (As will be seen in due course, it appears that little has changed in Robert’s case in this regard.)

76. However, his Honour concluded that the claim for provision was made good. In so doing, his Honour was satisfied that the plaintiffs were eligible persons within the meaning of s 57(1)(e), saying that during their lives they were at least partly dependent on the testator, the family being in a practical sense “captive” to him ([15]). His Honour was also satisfied that there were “factors warranting” the making of the application, in Robert’s case he being penurious (Robert having said in his evidence that he was living in a garage and sleeping in a swag). His Honour noted that Robert was then 43 years of age; and said that he had not lived on the Walgett Properties since 1992 ([21]) (a finding contrary to Robert’s evidence in the present proceedings but consistent with Robert’s evidence in the 2010 Proceeding that he had not lived on the property full-time since 1992 “but I came and went quite often”) (see 8/10/12; T 35.1-14 before Pembroke J; 12/8/24, T 74.48-75.14 in the present proceedings).

77. His Honour considered that he was not able on the evidence before him to make an informed decision as to the provision to be made for the plaintiffs (saying at [28] that there was inadequate financial information). His Honour made directions for a further hearing to address the questions left unanswered in his first judgment.

Second hearing before Pembroke J

78. The second hearing was conducted before Pembroke J in February 2014, with judgment delivered on 21 February 2014 (Wilcox v Wilcox (No 2) [2014] NSWSC 88 (Wilcox (No 2)). In the course of the second hearing, Ben reached a settlement of his family provision claim. Therefore, the second judgment by Pembroke J dealt only with Robert’s family provision claim.

79. His Honour said that, to facilitate the determination of the question of relief, to limit costs and to attempt to ensure the just, quick and cheap resolution of the proceedings (see at [6]), he had appointed a court expert to express an opinion as to whether any particular division of the pastoral holdings would be economically feasible and workable, bearing in mind: the production capacity, income potential or other features of each of the respective holdings; the objective of ensuring that any such divided holdings be independently viable; and the desirability of attempting to ensure that Patricia’s quality of life was not diminished (see at [7]). However, as it turned out, his Honour did not undertake any detailed analysis of that expert report, saying that the issue of division of the land into economically feasible parcels no longer arose and that it was complicated by the fact that the estate by itself did not own each parcel of land ([14]).

80. In Wilcox (No 2) (at [22]), Pembroke J set out the ownership of the various parcels of land at Walgett, including that Wangrawally was owned by Gidgerygah P/L; that Barwon Vale was owned by Patricia and Sanderson Estates; and that the land known as Gidgerygah was owned by I.F. Sanderson. His Honour went on to note the ownership of the shares in the Sanderson Companies at [23]. His Honour emphasised that he was only authorised to make an order for provision out of the estate of the deceased (i.e., Ian Sanderson). (Thus, his Honour’s order for provision, though ultimately set aside, was predicated on Ian Sanderson not holding legal or beneficial ownership of any of the relevant properties.)

81. After considering the position of Robert (from [28]), his Honour concluded that the appropriate order in favour of Robert was to make provision in the sum of $387,000 in favour of Robert ($107,000 to discharge a debt owed to the Tax Office, and $280,000 spread out as seven annual instalments of $40,000 to constitute a “modest, yet secure, safety net” ([35])); and ordered that Robert’s costs be paid out of the estate.

82. His Honour published a separate costs judgment on 17 April 2014 – see Wilcox v Wilcox (No 3) (Supreme Court (NSW), Pembroke J, 17 April 2014, unreported).

Appeal

83. Patricia then brought an appeal from the orders made by Pembroke J on 21 February 2014 and 17 April 2014 (the latter concerning costs), filing her notice of appeal on 20 May 2014. Robert was served with the notice of appeal but did not file an appearance; although he attended the hearing and made submissions (see Chapple v Wilcox [2014] NSWCA 392 (Chapple v Wilcox) per Barrett JA at [36]).

Patricia’s Wills

84. Patricia made two wills after the 2010 Proceeding was brought against her by her sons. In both those wills (made in 2012 and 2014, respectively) Patricia treated the various Walgett Properties as her own (see, for example, cll 4 and 5 of the 2002 Will; cl 3 of the 2014 Will, although in the latter there is an express recognition in cl 4 that certain of the properties were registered in the names of particular Sanderson companies).

85. One might well infer that the lack of provision for Ben and Robert in the 2012 Will reflected Patricia’s attitude to the bringing of the litigation against her by them in relation to her father’s estate. That is made express in the 2014 Will (see cl 11) under which Robert is given a $250,000 legacy. It might also be inferred that the limited provision for Robert reflected the state of the relationship between them at the time (particularly since Patricia made more generous provision in the 2014 Will for Ben).

Patricia and Trevor’s marriage

86. Patricia and Trevor married on 10 August 2014. Patricia clearly knew by then that she was dying (as Trevor’s affidavit makes clear). Trevor deposed that it was Patricia’s suggestion that they marry. They had been living together in a de facto relationship since at least 1997 ([32] of Trevor’s affidavit sworn 19 November 2020). Given their long term relationship, the decision to marry before Patricia’s imminent death seems to me to be unremarkable. Robert, nevertheless, in his evidence in the present proceeding and in communications with others which were in evidence before me, seemed to suggest something sinister behind the marriage occurring only shortly before Patricia entered into palliative care and then died (see, for example, 13/8/24; T 157.32-33 where he said “they got married on her deathbed, and then they took her off to Dubbo and morphined her out”). I see no basis for any suspicion of the kind Robert is there raising as to the motivation behind the marriage.

87. Patricia died of pancreatic cancer on 19 August 2014. On 12 September 2014, the 2014 Will was admitted to probate. The inventory of property filed on that application valued Patricia’s net estate at around $12-13m (including several properties worth $16m and liabilities of around $3m). The 2014 Will left several of the properties, businesses, and farming equipment to Trevor; one specific property (Barwon Vale) and shares (Sanderson Estates) to Ben; pecuniary legacies of $250,000 each to Robert and a long-standing employee (Pharron “Aussie” Wayne Hatton); and the balance to Trevor and Ben equally.

88. As adverted to above, in cl 11 of the 2014 Will, Patricia explained that she had provided for Robert as she had in the will “for a number of reasons including the commencement by him of Supreme Court proceedings against me in December 2010 following the death of my late father”.

Court of Appeal proceeding

89. After her death, an order was made on 22 September 2014 substituting Patricia’s executor, Mr Chapple, as the appellant in the appeal proceeding brought against Pembroke J’s decisions.

90. The Court of Appeal, on 18 November 2014, upheld the appeal (Basten, Barrett and Gleeson JJA) (Chapple v Wilcox [2014] NSWCA 392). The Court of Appeal concluded that, in light of the factual circumstances of the case, there was no basis for the primary judge’s view that community standards and expectations required and countenanced the making of any provision for Robert out of his grandfather’s estate such that a Court could be justified in interfering with the testator’s clearly stated testamentary wishes.

91. The relevant factual circumstances to which reference was there made were that: Robert had the training and skills to earn $100,000 per year but preferred instead to make a subsistence living by operating a tree lopping business; Robert’s father had recently won $1.3m gambling and expressed some willingness to give him some financial support; there had been limited contact between Robert and his grandfather since early 1993; Patricia, the deceased’s only child, had devoted a large part of her life to his pastoral business of which she was a part owner, having assisted her father in both business and personal matters, assumed sole responsibility for him in his old age and was a caring and dutiful daughter; the pastoral business was “borderline viable” and beset by the usual problems that attend such businesses, such as drought and unpredictability, and therefore there was no practical scope to raise money by selling off part of the land and the limited borrowing capacity that did exist needed to be devoted to the financial requirements of the enterprise itself (see [95] of Chapple v Wilcox [2014] NSWCA 392).

89. The Court thus allowed the appeal (rejecting Robert’s application for provision) with costs.

Robert’s family provision claim relating to Patricia’s estate

93. After Patricia’s death, Robert made a family provision claim against her estate by summons filed on 18 August 2015. Robert’s solicitor in that proceeding was Mr Brenden Miller of what was by then known as Garland Hawthorn Brahe (formerly Garland Seaborn and Abbott). Robert has deposed that Mr Miller called “out of the blue” to suggest he bring such a claim. Given Robert’s involvement in the 2010 Proceeding and subsequent appeal, one might have thought Robert would have been well aware of the ability to make a claim for provision (and his subsequent conduct suggests he would have needed little or no encouragement to do so but be that as it may).

94. Robert has deposed that he told Mr Miller that he thought the Power of Attorney and 2002 Will of his grandfather were false but that Mr Miller informed him that it would be too difficult to prove such assertions “and so those claims were not made in the [family provision proceeding]”.

95. On 23 October 2015, the matter was referred to mediation. The mediation, at which Ben and his solicitor were also present, was conducted by a former registrar (the late Graham Berecry) on 20 November 2015. The mediation resulted in a settlement, the substance of which was that, in addition to the legacy of $250,000, Robert would receive a sum of $850,000 and the estate would not pursue against him the benefit of costs orders (worth about $275,000) that had been made in the earlier proceedings concerning Ian Sanderson’s estate (see Wilcox v Chapple [2015] NSWSC 2154 (Wilcox (No 4) at [4]). The burden of the provision was to be borne equally by the two shares of the residuary estate. The handwritten terms of settlement were in evidence.

96. Mr Chapple sought judicial advice pursuant to s 63 of the Trustee Act 1925 (NSW) (Trustee Act) as to whether he would be justified in consenting to orders to be made in the substantive proceedings to the effect that Robert would receive, by way of provision out of the estate made under the 2014 Will an additional legacy of $850,000, such legacy to be borne by the shares of residue equally and for the executor’s costs of and incidental to the motion for judicial advice to be paid out of the estate on an indemnity basis. Ben had, on Mr Chapple’s application, been joined as a party to the application for judicial advice and, though opposing the giving of judicial advice, had filed a submitting appearance.

97. Brereton J, as his Honour then was, made orders to the effect that Mr Chapple would be justified in consenting to the proposed settlement (see Wilcox (No 4) handed down on 18 December 2015). His Honour then made orders by consent giving effect to the settlement that had been reached at the mediation. The last of the consent orders made on 18 December 2015 was:

5. Pursuant to Succession Act, s 95, the release contained in clause 3.1(b) of the deed of settlement and release dated 18 December 2015 between the plaintiff and the defendant be approved in relation to the whole of the estate and notional estate of the deceased and the Court notes that the parties have agreed that the estate forgives all debts owed to it by the plaintiff.

98. Thus, Robert ultimately obtained a legacy of some $1.1m (as well as the forgiveness of costs debts) out of Patricia’s estate.

99. A formal Deed of Settlement and Release (Settlement Deed) was signed by Robert and Mr Chapple on 18 December 2015. In the present proceedings, Robert gave evidence in cross-examination that he signed the Settlement Deed “under duress” and that “something very shady happened, very dodgy and I wasn’t aware of it (see 13/8/24; T 127.39; T 130.9). Robert’s allegation of duress appears to have been that, at the mediation, “I asked for one of the properties and between Mr Miller and Mr Chapple it was no way and that’s where I got given the 1.1 and was threatened if I didn’t take it I would go bankrupt and go to prison. That’s the duress part” (13/8/24; T 152.5). However, no claim is made in the pleading in this Court to set aside the Deed of Settlement, nor was there any suggestion in Robert’s affidavit evidence that he was in a situation of duress when he signed it.

100. That settlement did not, however, bring an end to the litigation between Robert and Mr Chapple (see below).

Discovery of Duffy correspondence

101. Robert has deposed that, in about August 2016, Ben sent to him photographs of the two Duffy letters referred to above (which Ben told him Ben’s then girlfriend, Eliza Showell, had found under the lining of the bottom of Patricia’s chest of drawers at Barwon Vale) (see [93] of the 2021 Affidavit). It will be recalled that from at least around the early to mid 1990s Patricia lived at Wangrawally, so one would assume anything left in a chest of drawers at Barwon Vale had been there for some time, assuming it was indeed left there by Patricia – as to which there is no evidence.) Robert has deposed that he said to Ben words to the effect “just as I thought, the property is in a trust” (indicating that by then Robert was well aware of the concept of a trust) and that, on 19 September 2016, he provided the letters to his solicitor, Mr Miller. Robert also deposed that Mr Miller told him that even if this meant that there was a trust and that there was a false will (the latter not obviously arising from the former), it was too late and he was out of time (see at [95]).

Deregistration of Gidgerygah P/L

102. On 8 February 2018, Gidgerygah P/L was deregistered. Before its deregistration, the property registered in its name (Wangrawally) was transferred to Trevor.

Application for access to Ian Sanderson’s Probate file

103. On 3 July 2018, Robert made an application to a Registrar of the Court for access to the probate file relating to Ian Sanderson’s 2002 Will, seeking to inspect the original version of that Will. When that application was refused, Robert brought an application by motion filed on 8 October 2018 for review of the Registrar’s decision. That application came before me in the applications list in the Equity Division (Wilcox v Wilcox [2019] NSWSC 306).

104. Joined as parties to the application were Mr Chapple (as executor of Patricia’s estate) and Mr Duffy (the solicitor who prepared the executor’s affidavit in support of the application for probate of the 2022 Will in 2010), as I explained in my judgment at [3]. When the application was made orally, it was not limited to access to the original 2002 Will (as the application to the Registrar had been) but was for access to the probate file more generally (see at [2]).

105. The purpose of the application for inspection of the probate file (as I was informed by Robert’s then “McKenzie friend”, Mr Danis) related to Robert’s suspicion or belief that there was inappropriate non-disclosure in that affidavit (or affidavits) of certain “testamentary” trusts.

106. I saw no error in the decision by the Registrar not to permit access to the original 2002 Will in circumstances where no reason had been put forward by Robert (a non-party to the probate proceedings) for such access and hence dismissed the application for review of the Registrar’s decision. I then dealt with the new (oral) application to review the whole of the file and I granted limited access in what I expressed to be the (in hindsight with prescience) “perhaps forlorn” hope of quelling any misconception as to the affidavit(s) filed in support of that application. I ordered that Robert be permitted to view the affidavit filed in support of the application for probate of that 2002 Will and the 2002 Will itself. I subsequently (after permitting brief written submissions as to why such an order should not be made) ordered that Robert should pay the costs of both respondents to the application on an indemnity basis (see Wilcox (No 2) at [43]) and ordered that access (to the limited extent granted) be conditional on the costs being paid or otherwise secured in advance.

Request by Executor for lodgment of documents in relation to Sanderson Estates

107. Meanwhile, in May 2018, as the administration of Patricia’s estate was coming to a close, Mr Chapple requested that, before he release the funds (around $180,000) held on Ben’s behalf, Ben lodge the necessary documents to remove Trevor as a director of Sanderson Estates (as Ben, pursuant to Patricia’s 2014 Will, held all shares in the company)

Proceedings by Ben

108. In April 2019, Ben filed a statement of claim against Mr Chapple and Trevor, seeking damages for an alleged breach of contract by Patricia in not writing her 2014 Will pursuant to their settlement agreement, an order that Mr Chapple be removed as executor (as I understand it, based on assertions as to the sale of property at an undervalue) and orders that an account of the estate be taken and any appropriate payments be made to Ben (see [15] of Wilcox v Chapple [2020] NSWSC 1859) (the 2020 judgment).

109. Ben filed an amended statement of claim in October 2019, alleging that what he received under the 2014 Will was less than what was agreed in the draft will set out in the settlement agreement, and that Mr Chapple had sold properties of the estate at a substantial undervalue (see [17] of the 2020 judgment).

110. Mr Chapple sought judicial advice pursuant to s 63 of the Trustee Act as to: whether he was justified in defending the claims in the proceeding, and whether he was justified in having recourse to the property of the estate to pay his reasonable costs of so defending those claims. Ben opposed advice being given.

111. On 16 December 2020, Rees J gave judicial advice that Mr Chapple was justified in both defending the claims and in having recourse to the property of the estate to pay his reasonable costs of so doing (the 2020 judgment at [32]).

112. In July 2021, Robb J heard a notice of motion filed by Ben, seeking leave to file and serve a further amended statement of claim in his 2019 proceeding. The application was consented to by Trevor but resisted by Mr Chapple. Robb J set out reasons as to his consideration of the proposed amendments and gave Ben opportunity to revise the draft further amended statement of claim to “accommodate the conclusions reached in these reasons” without making any formal orders (Wilcox v Chapple [2021] NSWSC 860 at [69]).

113. Ben’s solicitor filed a notice of ceasing to act on 6 August 2021. Ben, then without legal representation, did not comply with orders made by Robb J on 17 September 2021 extending to him the opportunity to inform Mr Chapple and Trevor what orders he would seek regarding the pleadings.

114. On 15 October 2021, Mr Chapple filed a motion seeking an order that the proceedings commenced by Ben be dismissed and that the amended statement of claim be struck out.

115. In December 2021, Robb J ordered that Ben’s claim be dismissed on 25 February 2022, with the intention that Ben could make an application to set aside the order for dismissal, which the Court would make only if satisfied that Ben had remedied the defaults in the pleadings and was in a position to serve a further amended statement of claim that pleads an arguable case for relief (Wilcox v Chapple (No 2) [2021] NSWSC 1607, at [47]).

116. A new pleading was subsequently filed by Ben, which led to an application before Kunc J on 8 December 2023, pursuant to a notice of motion filed on 9 November 2023 by Mr Chapple. Mr Chapple sought dismissal of the proceedings with costs, on the basis that Ben had become a bankrupt on 14 September 2023 and his trustee in bankruptcy had abandoned the action. The Court dismissed the proceedings with costs but stayed the orders to 2 February 2024 (apparently on the basis of statements from Ben’s solicitor that his bankruptcy might shortly be annulled, which I note did not prove to be the case as Ben remained an undischarged bankrupt at the time of the hearing before me) (Wilcox v Chapple [2024] NSWSC 82).

117. Ben, by notice of motion, subsequently sought an extension of the stay pending various events occurring up to and including the annulment of his bankruptcy. That notice of motion was dismissed with costs, and the extension was not granted.

Trevor’s death

118. Meanwhile, Trevor died on 27 May 2022. Probate of his will was subsequently granted jointly to Monique (his daughter) and Raymond Watson (his son from an earlier marriage), as noted above. However, on 21 November 2023 orders were made revoking the grant of probate and ordering that Letters of Administration with the will dated 5 May 2022 annexed be granted to Monique in her sole name, after Mr Watson had informed her that he wished to retire as executor (see Monique’s affidavit sworn 11 July 2024 at [3]-[4]).

119. To put this in context, at the time of Trevor’s death, Robert was 46 years old and living in Sydney. By then, on Robert’s own evidence (see below), Robert was estranged from Trevor (in his words, the relationship with Trevor had “irrecoverably” broken) (see Robert’s affidavit sworn 4 September 2023 at [37]).

Procedural history of the present proceedings

120. It is against that background that the procedural history of the respective proceedings now before the Court may be seen. The procedural history is relevant to a consideration of the application made by Robert’s solicitor on the first day of the hearing to vacate the hearing. This history is gleaned from Ms Ord’s 12 August 2024 affidavit (the content of which was not challenged by Robert) and the documents available on the Court file. Paragraph references in what follows are to Ms Ord’s affidavit.

121. The Equity Proceeding was commenced by statement of claim filed on 2 March 2021 and was first listed for directions on 26 March 2021. Robert was represented by Oliveri Lawyers. Mr Emanueli Oliveri was the solicitor on the record (see [6]). On 25 March 2021, “Oliveri Attorneys” filed a notice of change of solicitor, Mr Dominic Oliveri then being appointed as Robert’s solicitor ([7]).

122. On 19 April 2021, by consent, Registrar Hedge made orders (in the online court) that Robert provide a copy of his proposed amended statement of claim to all parties by 11 May 2021 ([8]).

123. On 4 May 2021, Oliveri Attorneys filed and served a notice of ceasing to act for Robert ([9]). Then, on 25 May 2021, Oliveri Attorneys filed and served a fresh notice of appointment of solicitor. A proposed draft amended statement of claim was then (belatedly) served ([10]).

124. On 27 May 2021, the matter was listed for directions and, by consent, Robert was ordered to file and serve the amended statement of claim by 4 June 2021 and to pay any costs thrown away by the amendments as agreed or assessed ([11]).

125. On or about 31 May 2021, an application was made by Robert’s solicitor for production of a particular (SYF2994/1994) Family Court file; orders were made on 2 June 2021 by Senior Deputy Registrar Hedge for inspection access to the lawyers only and no copy access to the Family Court file ([12]).

126. On 10 June 2021, the amended statement of claim was (again belatedly) filed by Robert’s solicitors ([13]). (Non-compliance with directions as to the filing or service of pleadings or evidence is a hallmark of the way in which Robert’s case was conducted, as will be seen.)

127. On 30 August 2021, orders were made through the online court for the first defendant (Mr Chapple) to file a notice of motion to strike out the statement of claim by 8 September 2021 ([14]).

128. On 15 September 2021, orders were made through the online court adjourning the proceeding to 28 September 2021 ([15]).

129. On 23 September 2021, Oliveri Attorneys filed and served a notice of intention of ceasing to act for Robert ([16]).

130. On 24 September 2021, orders were made by the Equity Registrar for Robert to file affidavits in respect of Mr Chapple’s strike out notice of motion by 8 October 2021 ([17]). Shortly thereafter, on 30 September 2021, Oliveri Attorneys filed and served a notice of ceasing to act for Robert ([18]).

131. On 7 October 2021 (the day before Robert’s affidavit evidence on the strike out motion was due to be filed), Mr Rupert Gray of Keypoint Law filed and served a notice of appointment of solicitor ([19]).

132. Thereafter, successive orders were made extending the time for the filing of Robert’s affidavit evidence in relation to the strike-out motion, culminating in an extension granted on 23 November 2021 to 13 December 2021 (and a guillotine order made that Robert could not rely on any affidavits filed after that day); and Robert was ordered to pay the defendants’ costs thrown away as a result of the directions hearing (see [20]-[23]).

133. On 13 December 2021, Robert finally served his affidavit evidence in relation to the strike out motion ([24]).

134. On 14 December 2021, orders were made by consent for Robert to serve a draft further amended statement of claim by 23 December 2021 and for the defendants to review and indicate whether they consenting to the filing thereof ([25]). It is Ms Ord’s understanding that at that stage senior counsel was acting for Robert (see [25]).

135. No draft further amended statement of claim was served by 23 December 2021 ([26]).

136. On 10 January 2022, Mr Gray filed and served a notice of intention of ceasing to act for Robert ([27]) and, on 18 January 2022, Mr Gray filed and served a notice of ceasing to act for Robert ([28]).

137. On 31 January 2022, James Welch of Access Law Group filed and served a notice of appointment of solicitor ([29]).

138. On 1 February 2022, the strike out motion was listed for hearing on 3 March 2022 and a direction was made for any proposed further amended statement of claim to be served by 5pm on 25 February 2022 ([30]). Seemingly in a reprise of what had happened in relation to the Oliveri retainer, shortly after the directions were made on 1 February 2022, on 4 February 2022, James Welch filed and served a notice of intention of ceasing to act for Robert ([31]) and, on 11 February 2022, James Welch filed and served a notice of ceasing to act for Robert ([32]). Mr Welch was therefore on the record as Robert’s solicitor for less than a week before the filing of his notice of intention of ceasing to act.

139. On 25 February 2022, Florian Ammer of Piper Alderman filed and served a notice of appointment of solicitor ([33]).

140. On 3 March 2022, leave was granted for Robert to file and serve a further amended statement of claim unless objected to by the second defendant (Trevor), and that, if no objection was received, the further amended statement of claim be filed by 18 March 2022 ([34]).

141. On 22 March 2022, orders were made for Robert to file his further amended statement of claim by 29 March 2022, for the filing of defences by 26 April 2022, and for Robert to pay the costs thrown away by each of the defendants arising from the further amended statement of claim ([35]).

142. On 29 March 2022, Robert filed his further amended statement of claim ([36]).

143. On 23 May 2022, orders were made extending the time for the first defendant (Mr Chapple) to file and serve a defence and the time for Robert to file any replies to the defendants’ defences and the matter was stood over to 17 June 2022 ([37]).

144. On 17 June 2022, the Court was informed that Trevor had died and orders were made extending the time for Robert to file replies to the defendants’ defences and for the estate to inform the parties once a grant of probate was received. The matter was stood over to 20 October 2022 ([38]).

145. On 11 October 2022, just over a week before the matter was due back in Court, Florian Ammer filed and served a notice of intention of ceasing to act for Robert ([39]) and, on 18 October 2022, Florian Ammer filed and served a notice of ceasing to act for Robert ([40]).

146. By email sent on 19 October 2022, Robert indicated that he would be seeking an adjournment on 20 October 2022 to seek further legal advice “with further evidence pending subpoenas and witnesses” ([41]). Robert did not attend the directions hearing on 20 October 2022 and the matter was adjourned to 10 November 2022 ([42]).

691. As to the assertion by Robert that he was a member of Trevor’s household, Monique says that Trevor left the family farm (i.e., Wangrawally) at the start of 1993 and only came back for short periods thereafter, the longest of which was when he had appendicitis (when Monique says Robert stayed at Allawa with his grandfather). Monique says that when Robert came back to the farm he generally stayed with his grandfather due to the poor relationship he had with Patricia and Trevor. In this regard, Monique points to the evidence of Wayne Hatton, who worked full-time on the farms from 1993 to 2015, and Loretta Robinson, a neighbour of Patricia and Trevor (see above) and her own evidence in this respect.

692. In my opinion, Robert’s assertions as to his dependence on Trevor at various times and as to being a member of his household from time to time must be treated with no little degree of caution. There is no evidence of financial support provided to Robert by Trevor. Although I would accept that if Robert was living with Trevor and Patricia without paying rent or board for regular or lengthy periods of time it might be said that he was dependent on them to that extent, weekend visits or the like by someone in Robert’s position (the adult child of Trevor’s partner) do not amount in my opinion to dependence on Trevor for the purposes of s 57(1)(e).

693. It is clear that Robert did not live on a permanent basis at Wangrawally with Trevor (or indeed with Patricia after 1993) at any time after Trevor began living there in late 1996 or 1997. Robert himself says that his place of abode fluctuated over the years and on his own evidence he was living and working elsewhere for much of the time (and living from time to time with his grandfather). The question is whether the relatively short periods during which Robert says he lived with Trevor and Patricia, assuming for the moment that that evidence be accepted (i.e., on weekends while he was working at Cubbie Station; two or three times a year while he was living in the Northern Territory, during periods when he says he assisted with maintenance work or shearing, when he had appendicitis in 1998), have the degree of continuity and permanency of mutual living arrangements contemplated by Hallen J in Russell or would otherwise lead to the conclusion that he was a member of Trevor’s “household”.

694. I make the qualification to the above that I am not by any means persuaded that Robert’s evidence as to the periods in which he lived with Trevor and Patricia is reliable. Robert’s affidavit evidence on this issue was not consistent and I regard it as significant that the references to living with Trevor and Patricia are largely in the 2023 Affidavit (sworn in support of his family provision claim when Robert must have appreciated that it would be necessary for him to establish that he was wholly or partly dependent on Trevor and a member of his household) rather than his 2021 Affidavit and, at least to a degree, inconsistent with the position depicted in the 2010 Proceeding when he was maintaining an alternative claim for family provision out of his grandfather’s estate.

695. I accept the evidence of Mr Hatton, who was not shaken in cross-examination, and Ms Robinson, who was not required for cross-examination as to their observations (more accurately their lack of observations) of Robert staying or working at Wangrawally over the period. I consider that Robert’s visits to his mother (and Trevor)’s residence over the period from 1993 to 2006 (when the relationship with Trevor admittedly broke down) were not as a member of Trevor’s household but simply to visit Patricia. As to the evidence of Robert working on the property (Wangrawally) I note the conflict in the evidence as to what Robert actually did on the property over the relevant period but, even accepting that he was at the Walgett Properties from time to time to assist with shearing or the like, I do not accept that this rendered him a member of Trevor’s household.

696. Therefore, I do not accept that Robert has established on the balance of probabilities that he is an eligible person under s 57(1)(e) to make a claim for provision out of Trevor’s estate and his application should be dismissed. However, even if I be wrong in that conclusion, the same conclusion would follow having regard to the conclusion I have reached on whether there are “factors warranting” the making of the application (to which I now turn).

Factors warranting

707. Robert submits that his “factors warranting” the making of this application are “somewhat unique”.

708. In this regard, Robert says that he worked with his grandfather and gave many years of his life to assisting his grandfather with the family farm; and he emphasises that his great-grandfather, Jack Sanderson, established an “intergenerational family trust” with the intent that his great-grandsons would be allowed to continue on the farming tradition and having a home for life. If this is a reference to the 1962 Trust Deed, for which Jack Sanderson was the settlor, this begs the question again as to what property was ultimately the subject of that trust (which has already been addressed).

709. The real complaint by Robert is that, through the breakdown of his parents’ marriage, Patricia commencing a de facto relationship with Trevor, and the “failure to remember the trust that Jack Sanderson established”, “much has been lost”. It is submitted for Robert that “[s]ome would see Robert’s entitlement to the farm as his birthright in what was previously, a multi-generational family farm”. Robert argues that someone like Trevor would recognise this and would be duty bound to provide for someone like him (referring here to his evidence of a warm relationship with Trevor “up to a point”).

710. At [33] of Robert’s 2023 affidavit, he deposes that between the early 1990s and 2006 he became what he considered to be “close friends” with Trevor “as a colleague and my mother’s partner”. In his 2021 Affidavit, as noted earlier, he deposes to attendance at family events and social functions with Trevor.

711. At [37] of his 2023 affidavit, Robert deposes that on taking the action to commence the 2001 Proceeding, his relationship with Trevor “was irrevocably broken” and “never resolved”. In cross-examination, Robert resiled from that proposition and maintained that they were still talking to each other and civil to each other (see above).

712. Robert accepts that there was an “unfortunate” incident regarding police involvement (a reference as I understand it to his ultimately unsuccessful AVO application). However, Robert seeks to diminish the relevance of this by the submissions that “matters like this in families can flare up and that these events sadly do occur”. Robert says that the one-off occurrence of such events should not be seen as a “totally disqualifying event” noting the Court’s approach in estrangement cases where Robert argues that a strong degree of callousness must be present before disentitlement is found.

713. It is also submitted for Robert that he sincerely apologised for his actions in the Facebook pages (though I note that this was only in re-examination (see 13/8/24; T 181) and only after he was effectively invited to do so). Such an apology is quite inconsistent with the resistance with which Robert made derogatory comments after Trevor in cross-examination (see for example the golden goose comment referred to earlier and his insistence that Trevor was not a “real partner” of Patricia). I do not suggest that the Facebook posts would amount to “disentitling conduct” (not least because they were after the death of Trevor) but the readiness with which Robert made such allegations (such as in his correspondence with Mr Davie) tells strongly against there being a close relationship between he and Trevor.

714. Monique points out that Robert’s evidence in the 2010 Proceeding before Pembroke J was that if he ever even had a conversation with Trevor between 1993 and 2010 “it would have been brief” (which is squarely inconsistent, to say the least, with the rather expansive account Robert gives at [33] of his 2023 Affidavit as to the family and social events that he celebrated and attended with Trevor between the early 1990s and 2006, unless the two said nothing to each other during those events).

715. Further, Monique says that Robert’s claim that he became “close friends” with Trevor was obviously false, referring to the evidence of Robert’s criticisms of Trevor during his life, the fact that Robert unsuccessfully sought an AVO against Trevor the day after Patricia’s funeral in 2014, and Robert’s Facebook comments (see above). Pausing there, insofar as the AVO application and Facebook comments post-dated 2006, this does not of itself falsify the claim that Robert had earlier been “close friends” with Trevor (noting that Robert himself says that the relationship had irrevocably broken down in 2006), although I accept that the evidence does not support the view that the two were close friends even before that time (as I have explained closer).

716. Monique submits that Robert has not shown that there are “factors which warrant the making of the application”. Monique says that Robert cannot be regarded as a person who “would be generally regarded as a natural object of testamentary recognition” of Trevor, noting that an adult stepchild of a deceased “is not normally regarded as a natural object of testamentary recognition”. Monique says that this applies a fortiori in the present case, where: Trevor only commenced his relationship with Patricia after Robert was an adult and no longer living with his mother; and Robert’s relationship with Trevor was not only estranged, but actively hostile, including each of them having been on opposing sides in litigation and Robert unsuccessfully having sought an AVO against Trevor the day after Patricia died. I agree.

Determination as to factors warranting

717. Relevant in considering whether there are factors that warrant the making of the application would include the need for provision (having regard to Robert’s financial circumstances, which I consider below) and the size of the estate (which is certainly a large estate). Other factors would include the relationship between the claimant and the deceased. Regard may be had to what the community might expect of a testator even if the claimant is an eligible person.

718. In the present case, the emphasis placed by Robert on his work assisting his grandfather on the family farm is in my opinion vastly overstated. On a number of occasions in his evidence Robert referred to having devoted 45 year to work on the farm, which is clearly an exaggeration (and was accepted as such) since that would have to have encompassed the period from birth and during early childhood (he turned 45 in 2011 after his grandfather had died) and Robert himself accepts that he did not work on the properties with his grandfather at least after 2006.

719. As to the unique factor to which Robert here points, certainly, the Walgett Properties (the so-called Family Estate) had been in the Sanderson family for a number of generations and it may be accepted that Ian Sanderson encouraged Robert to pursue a career in farming (and may well have done so in the hope or expectation that Robert would carry on the farming business on the properties). It may well also be that there would have been an expectation in the Walgett community (as Douglas maintains there was) that the properties (or perhaps some of them) would stay in the family or go to Ian Sanderson’s grandsons. However, the suggestion that this would somehow have obliged Trevor, the long-standing partner and then husband of Patricia, to make provision for Robert in his will does not follow. That depends on a consideration of the family relationships after Ian Sanderson’s death.

720. More relevant (and tending strongly against there being factors warranting the making of the application), the evidence does not establish a close relationship between Robert and Trevor; rather, the evidence discloses that Robert clearly disapproved of his mother’s relationship with Trevor (whether or not he blamed Trevor for the break-up of his parents’ marriage, Robert made consistently snide and derogatory remarks about their relationship (including his assertion that Patricia was Trevor’s “golden goose” and the accusations made at [45] of his 2021 Affidavit). Robert attributed to his grandfather unfavourable remarks about his mother (inconsistent with the trust his grandfather objectively placed in Patricia by executing the 2002 Power of Attorney and making her the executor under his 1987 and 2002 wills). Robert also caused distress to his mother (see Trevor’s affidavit evidence, supported by Monique’s recollection of discussions with Trevor) and no doubt to Trevor (such as by pursuing the AVO application the day after Patricia’s death).

721. Robert’s relationship with Trevor had, on Robert’s own account, “irrecoverably broken down” by 2006 and never resolved. Even leaving aside Robert’s conduct in persisting to seek an AVO against Trevor the day after Patricia had died, it is laughable to suggest that community expectations would have been that Trevor would make provision in his will for an adult step-child who had consistently upset Patricia in her lifetime and with whom he had had no ongoing relationship for many years. It is also relevant to take into account that Robert had received (through the settlement of the proceedings in relation to Patricia’s estate) a legacy of over $1m (and forgiveness of adverse costs orders) out of his mother’s estate.

722. In view of all of those matters, I consider that the evidence does not establish that Robert was a natural object of Trevor’s testamentary bounty. I find that Robert has not established factors warranting the making of the application. This is sufficient to dispose of his application for further provision out of the estate.

Adequacy of provision

723. This issue does not arise given the conclusions that I have reached above. However, I deal with it briefly.

724. What is meant by the concept of adequacy of provision has been considered in various decisions (see, for example, Sgro v Thompson [2017] NSWCA 326; and, much earlier, Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [122] per Callinan and Heydon JJ). In Hunter v Hunter (1987) 8 NSWLR 573 at 575, Kirby P said:

It has conventionally been said that the test applied, to determine whether the provision made is “adequate” requires of the Court not only a scrutiny of the needs of the claimant for maintenance, education or advancement in life such as were reasonably foreseeable to the testator but also a consideration of the relationship between the testator, the claimant and the other relevant persons having similar claims for adequate provision to be made for them:

725. The statutory enquiry as to whether the deceased made adequate provision for an applicant’s proper maintenance is determined from the perspective of a wise and just testator (aware of all the relevant circumstances) informed by accepted community standards (see Bosch v Perpetual Trustee Company [1938] AC 463 at 478-479 per Lord Romer; see also McKenzie v Topp [2004] VSC 90 per Nettle J (his Honour then sitting in the Supreme Court of Victoria) and Stone v Stone [2016] NSWSC 605 per Brereton J, as his Honour then was).

726. Had it arisen, I would have concluded that, although Trevor’s will made no provision at all for Robert, it could not be said that adequate and proper provision was not made for him.

727. Monique submits (and I agree) that Trevor did not owe Robert any moral obligation to make provision for Robert, given the relationship between Robert and Trevor (which Monique says, and I again accept, was characterised by Robert’s denigration and hostility towards Trevor) and having regard to the fact that Robert received more than $1.1m from his mother’s estate. (Although Monique also points to Robert’s affidavit evidence that he is owed over $400,000 in debts he can seek to have repaid, I can have no confidence in that evidence given the undocumented nature of the loans, the evidence of Stuart and Tracy as to the alleged debt owing by Stuart, and Ben’s position as a bankrupt. It seems to me that there can be little confidence that the debts will be repaid, even assuming that there are such debts in the first place.)

728. Monique also points to the strong competing claims of Trevor’s children and grandchildren who are the beneficiaries of his estate (Louise, Luke and Hamish). It is noted that the interests of a beneficiary cannot be disregarded, and that a beneficiary is entitled to rely upon the terms of the deceased’s will and his or her competing claim, respectively, as a chosen object of the deceased’s testamentary bounty; and that each of Monique, Louise, and Luke raises her or his financial circumstances.

729. Monique says that, in contrast to Robert, she and each of Louise, Hamish and Luke (as the children and grandchildren of the deceased), enjoyed a close and loving relationship with Trevor; that they each visited him regularly and provided him with various degrees of care and support, particularly from 2021, following the commencement of the Equity Proceeding and his cancer diagnosis. In the case of Hamish, Monique says that he assisted Trevor with the work and maintenance around the rural properties, and that, in the last weeks of his life, Trevor expressed a wish for Hamish move into Wangrawally to help run the rural properties. Monique submits that it is perfectly understandable that Trevor chose to leave his estate to his family; and says that there can be no doubt that it was to them that he owed his moral obligation.

730. Further, Monique submits that Robert has failed to disclose to the Court as fully and frankly as possible all details of his financial circumstances (referring to my judgment in Leary v NSW Trustee and Guardian [2017] NSWSC 1113 at [52]ff) and hence says that the Court cannot be satisfied about Robert’s financial position concerning assets or income.

731. As to his assets, Monique says that Robert has failed to produce all documentary records called for, in that he has still not produced his Commsec share trading account statements, transfers being made from that account to some accounts he has produced. Monique says that the need for a clear explanation of Robert’s true asset position is heightened in circumstances where Robert received $1.1m at the end of 2015 from the settlement concerning Patricia’s estate.

732. Further, Monique says that Robert failed to disclose his true employment status with his delivery business and with The Blacket Agency (see his cross-examination at 13/8/24; T 147-149), and that Robert clearly is receiving money from other sources, such as cash jobs or another account, to pay his rent.

733. Monique argues that Robert’s failure to disclose as fully and frankly as possible all details of his financial circumstances provides another reason for dismissing his claim, namely that he has failed to establish that his financial circumstances warrant provision.

734. In response, Robert argues that he has made a substantial effort to disclose his financial and material circumstances and refers to his parlous financial circumstances and personal circumstances (that he lives on a disability pension without any person to support him, residing in a “modest apartment” (in Double Bay) with friends and eking out an existence as best he can performing odd jobs where he can) as establishing obvious financial need.

Determination as to adequacy of provision

735. In my opinion, Robert has not established that adequate and proper provision was not made for him under Trevor’s will (even though no provision at all was made for him under the will). In that regard, I place weight on the fact that, on Robert’s own account, his relationship with Trevor had irrevocably broken down many years before Trevor’s death in 2022 (i.e., in 2006); I do not accept Robert’s assertion that he and Trevor had a close relationship before then; I find that Robert had displayed hostility to Trevor before his death and disrespect after his death (which no doubt reflects Robert’s antipathy to Trevor before his death); and I have concluded that, as an adult stepchild of Trevor, Robert would not be regarded as a natural object of Trevor’s testamentary bounty. I also take into account the competing objects of Trevor’s testamentary bounty, namely his daughters, Monique and Louise, and his grandchildren. Frankly, the suggestion that there would be perceived to be any moral obligation on Trevor to make provision for Robert is risible in all the circumstances.

735. It is not necessary in those circumstances to go further and dismiss the claim on the basis of a failure to provide full and frank disclosure of Robert’s financial circumstances although there is force to the criticisms made by Monique in this regard. In particular, the evidence (such as there is) does not make clear what Robert has done with the not insignificant legacy he received from Patricia’s estate (the making of some seemingly improvident loans, purchase of vehicles, payment of legal costs and living expenses seems to be the gist of his explanation for where the money was spent); and some of Robert’s evidence was either contradicted by that of other witnesses (such as the debt he claims is owing by Stuart) or implausible (such as the loan made to a former partner whom he was reluctant to name in the witness box but who was already named in his affidavit; and other undocumented loans he says he has now called upon but may have to sue to recover).

Determination as to what provision would be adequate

737. Again, this issue does not arise and so I will only deal with this briefly.

738. The factors that may be taken into account in determining adequate provision include those set out in s 60(2) of the Succession Act, those being:

1. any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship;

2. the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate;

3. the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered;

4. the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate;

5. if the applicant is cohabiting with another person, the financial circumstances of the other person;

6. any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated;

7. the age of the applicant when the application is being considered;

8. any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant;

9. any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate;

10. any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person;

11. whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so;

12. whether any other person is liable to support the applicant;

13. the character and conduct of the applicant before and after the date of the death of the deceased person;

14. the conduct of any other person before and after the date of the death of the deceased person;

15. any relevant Aboriginal or Torres Strait Islander customary law; and

16. any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.

739. As to (a), I have referred above to the state of Robert’s relationship with Trevor. It commenced when Trevor and his mother began their relationship and Trevor moved in with Patricia (which was in about 1996 or 1997). It is telling that in cross-examination before Pembroke J, Robert said that from 1993 to the time of death of his grandfather (which was in 2010), if there had been any conversation between him and Trevor it would have been brief (8/10/2012; T 35.22). This is made clear by Monique’s recollection of her father’s account of his relationship with “Pat’s boys” and from Trevor’s own words. Robert himself accepts that the relationship with Trevor was irretrievably broken some years before Trevor’s death. One could reliably expect that Trevor would roll over in his grave at the suggestion that there was ever a close or warm relationship between the two and certainly not since 2010. This factor strongly counts against the making of any provision for Robert out of Trevor’s estate.

740. As to (b), Trevor, as a father, clearly assumed moral obligations to his children with whom it appears he had a close relationship, particularly with Monique but also with Louise. It is clear on the evidence that he also had a close relationship with his grandchildren.

741. As to (c), little more need be said than that the estate is large, comprising the Walgett Properties, farming business and company shares. Robert has deposed in his affidavit in the Family Provision Proceeding (at [42]) that the total value of the assets in his possession is $17,250; that he is owed a number of undocumented and unsecured loans ([43]) and to his daily expenses (even though he has not made complete disclosure of his income or other support he receives). Robert is on a disability support pension. The bank statements that were produced by Robert do not reveal any substantial savings. As to the financial circumstances and needs of the beneficiaries who have put those matters before me, I have already noted these.

742. Factor (e) is inapplicable.

743. As to (f), I have noted Robert’s physical disabilities and that he is in receipt of a disability pension. Apart from noting the reference in his affidavit to mental instability, it is not clear what that is.

744. As to (g), Robert is now around 58 years old.

745. As to (h), although Robert asserts that he has contributed to the work of the farm, his evidence on this issue was not compelling and I have accepted the evidence of Mr Hatton on this issue. I see no positive contribution by Robert to Trevor’s estate during Trevor’s lifetime.

746. As to (i), there is no evidence of provision by Trevor for Robert in his life and none under the will.

747. As to (j), Trevor’s testamentary intentions are clearly to benefit his close family members. The evidence of his statements close to his death are consistent with this. The evidence also discloses very negative comments about Robert.

748. As to (k), there is no evidence of this.

749. As to (l), Robert’s evidence is that no-one close is liable to support him. There is no reason to doubt this. It is unclear what if any provision was made for him out of his late father’s estate. Robert received $1.1m out of his late mother’s estate (as well as the benefit of forgiveness of costs liabilities), most of which he claims to have spent on legal expenses or otherwise dissipated.

750. As to (m), Robert’s character and conduct before and after Trevor’s death can only be described as not to his credit and lacking in empathy for Trevor or Patricia. His Facebook posts make serious allegations against the character of each of Trevor and Patricia and can only be seen as vindictive and spiteful. The suggestion by Robert that these negative comments were to defend his own reputation in the community is laughable. I also note that Robert’s conduct in relation to Mr Davie in the pursuit of evidence to support his claim is reprehensible.

751. Factors (n) and (o) are inapplicable. There are no other relevant factors to which my attention was drawn.

752. Robert sought an order for provision in an amount sufficient to permit himself to house himself and to provide for vicissitudes in life, bearing in mind his station in life. There was no evidence as to what might be required by way of suitable accommodation save that Robert seems to want to have a property in Sydney as well as a homestead in the country. In cross-examination, Robert seems to have had in contemplation that he might have been given one of the farming properties. There is no evidence as to the value of those properties other than that which is contained in Monique’s affidavits sworn 11 October 2023 and 11 July 2024 (which Robert suggested might be the subject of challenge), at least some of which (Allawa and Uno) have since been sold; nor as to the impact on the feasibility of the Walgett farming business of one of the properties being transferred to Robert (cf the expert evidence apparently adduced before Pembroke J).

753. Therefore, had I been of the opinion that Robert’s family provision claim should succeed, I would have done no more than provide a lump sum legacy in a relatively small amount (say $50,000) to provide a buffer for the future. As it is, no such order is warranted.

Ultimate determination

754. For the above reasons, both the claims made in the Equity Proceeding and the claim for provision out of Trevor’s estate made in the Family Provision Proceeding should be dismissed with costs.

Costs

755. Monique sought the opportunity, in the event that the proceedings be dismissed (as I have concluded they should be), to make submissions as to why costs should be awarded on an indemnity basis. Accordingly, I will make provision for a regime in that regard in the orders now to be made with a view to determining that application on the papers.

Orders

756. I make the following orders:

In both proceedings 2021/59314 and 2023/168649:

1. Dismiss the proceedings with costs (reserving the question whether there should be an indemnity costs order).

2. Direct the defendants to file and serve within 14 days any submissions in support of an application for indemnity costs.

3. Direct the plaintiff to file and serve within 14 days thereafter any submissions opposing any application for indemnity costs.

4. Direct the defendants to file and serve any brief reply submissions within 7 days of receipt of the plaintiff’s submissions.

5. Note that any application for indemnity costs will be determined on the papers.

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Amendments

06 November 2024 - Paragraph [126] - corrected minor typographical error.

16 December 2024 - Paragraphs [545], [546], [548], [550], [567] - amendments to dates

Decision last updated: 16 December 2024