Wilkins v Wilkins

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7219 of 2006

GREGORY BRIAN WILKINS	Plaintiff
v
GARY JOHN WILKINS (both personally and as executor of the Estate of the late Norma Patricia Wilkins)	Defendant

---

JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 to 30 March; 2, 3 April 2007
DATE OF JUDGMENT:	12 April 2007
CASE MAY BE CITED AS:	Wilkins v Wilkins
MEDIUM NEUTRAL CITATION:	[2007] VSC 100

---

TRUST – Resulting trust – Purchase of rural land by parents in names of two sons – Presumption of advancement – Principles summarised – Admissibility of evidence of later declarations and conduct of donors - Administration of estate – Invalid appropriation in specie in part satisfaction of plaintiff’s share in mother’s estate – Cross-claim by defendant for breach of resulting trust by plaintiff – Equitable remedies.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Ridgeway	M.J. Gullquist
For the Defendant	Mr B. Carew	McCarthy & Associates

---

HIS HONOUR:

At the times material to this proceeding the plaintiff and his brother Neil Wilkins (“Neil”) were the joint registered proprietors of a property at 163 McLeish’s Road, Yea known as “Killingworth”. The defendant, who is the eldest brother of the plaintiff, is the executor of the estate of their late mother, Norma Patricia Wilkins (“Norma”). The principal issue in this proceeding is whether the plaintiff and Neil held their beneficial interests in Killingworth in their own right, or whether, as asserted by the defendant, they held it on a resulting trust for their late mother Norma.

Norma and her late husband, William Henry Wilkins (“William”), had seven children. The defendant is the eldest, Neil the fourth eldest, and the plaintiff the fifth eldest. In 1964 Norma and William purchased and became registered, as joint proprietors, of a rural property at Yea called “Ghin Ghin”. Subsequently, they built a house on that property and used it for general farming purposes. On 2 July 1976 William successfully bid at auction for Killingworth. That property is a fifty acre rural property approximately 3.5 kilometres from Yea. It was sold as part of a subdivision of a larger 500 acre property. The contract for the purchase of Killingworth was signed by Neil and the plaintiff as purchasers. A deposit was payable on the signing of the contract, 40 percent of the purchase price was payable within 30 days, and the balance was payable by equal monthly instalments (including interest) over three years. In 1979 Neil and the plaintiff became registered proprietors as joint tenants of the property.

It is common ground that William and Norma paid all of the purchase price of Killingworth. The case for the plaintiff is that, after William had successfully bid for Killingworth at auction, William told Neil and the plaintiff that the property was purchased for them. On the other hand, as I have stated, the defendant’s contention is that at all material times Neil and the plaintiff held the property on a resulting trust for their two parents.

William died in 1985. As a consequence Norma became the sole registered proprietor of Ghin Ghin. Norma died in April 2003. By her last will dated 22 December 1972 she left the whole of her estate in equal shares to her seven children. Probate of the will was granted to the defendant as the named executor on 30 December 2003. The defendant engaged a valuer who estimated the value of Killingworth at $285,000. The defendant included the value of Killingworth in his estimate of the amount of estate to be distributed to the beneficiaries, namely, $1,018,380.07. He thereby calculated that each of the seven beneficiaries were entitled to $145,482.87. From that amount he deducted miscellaneous debts owed by each of the beneficiaries to their late mother. In the case of Neil and the plaintiff, he deducted the sum of $142,500 from each of their entitlements. On 13 September 2005 the defendant’s solicitors sent a letter to the plaintiff enclosing a cheque for $2,900.07, being the difference between the plaintiff’s entitlement to a one-seventh share in the estate, and the estimated value of his one half interest in Killingworth. The plaintiff rejected the proposition that Killingworth formed part of the estate of his late mother, and returned the cheque to the defendant’s solicitors.

Pleadings

In his amended statement of claim the plaintiff has pleaded two causes of action. The first, and major, cause of action, is based on a claim that the defendant failed to distribute the estate of Norma Wilkins in accordance with her will. In essence, the plaintiff claims that he is and was at all times the joint owner of the legal and beneficial interest in Killingworth. Thus, he claims, the defendant wrongly deducted, from his share of the estate, the value of the plaintiff’s share in Killingworth. The plaintiff seeks a declaration that his share in Killingworth does not form part of the deceased’s estate, and a declaration that he is entitled to a one‑seventh interest in the estate of Norma Wilkins, in accordance with the terms of the will, without deduction. In response, in his amended defence and counterclaim, the defendant has pleaded that at all times the intentions of Norma and William Wilkins were that the plaintiff and Neil Wilkins would hold the Killingworth property on trust for them, and that the plaintiff and Neil Wilkins would not have any beneficial title to or interest in the property. Accordingly the defendant contends that the plaintiff and Neil Wilkins at all times held Killingworth on a resulting trust for the benefit of Norma Wilkins’ estate.

The second claim pleaded by the plaintiff is that the defendant failed to apply to the Court for a declaration concerning the dispute as to the ownership of the beneficial interest in Killingworth. As part of that claim the plaintiff disputes the right of the defendant, under s.46 of the Administration and Probate Act 1958 (Vic), to have appropriated the equitable interest in Killingworth to the plaintiff and Neil Wilkins in part satisfaction of their entitlements under the will. The plaintiff submits that it was the obligation of the defendant, not himself, to maintain proceedings in this Court to determine the disputed question relating to the ownership of Killingworth. He alleges that it was a breach of the executor’s duties not to do so, but, instead, to distribute the estate, by purporting to distribute the shares of the plaintiff and Neil, in part, in specie by appropriating the equitable interest in Killingworth to them. In the amended defence and counterclaim to that cause of action the defendant again pleads that the equitable interest in Killingworth was held by the plaintiff and Neil Wilkins on a resulting trust for the estate of Norma Wilkins, and that accordingly the defendant was entitled to appropriate the Killingworth property to the plaintiff and Neil Wilkins in accordance with s.46 of the Administration and Probate Act. The defendant contends that he was not obliged to issue proceedings in the Supreme Court to determine the ownership of the property but, rather, was entitled to distribute the estate, in part in specie to the plaintiff and Neil Wilkins. In his amended counterclaim, the defendant has pleaded also that on 2 February 2007 the plaintiff, in breach of the resulting trust, transferred his interest in Killingworth to Cheryl Wilkins. The defendant claims equitable damages resulting from that breach, comprising the value of the interest in Killingworth disposed of by the plaintiff.

Resulting Trust

The main issue in the proceeding is whether the plaintiff and Neil Wilkins held the legal interest in Killingworth as joint proprietors in trust for their mother, Norma Wilkins at the date of her death.

The principles which are relevant to that issue are well settled and not in dispute.[1] In the absence of evidence to the contrary, a registered proprietor of real estate is presumed to own the equitable interest in it. However, where a person purchases property, and places that property in the name of someone else, the law presumes that that person holds the property on a resulting trust for the purchaser who paid the cost of acquisition of it. The presumption of a resulting trust may be rebutted by showing that there is a relationship between the parties which gives rise to a countervailing presumption known as the “presumption of advancement”. In such a case, the presumption of the resulting trust is, in effect, nullified. As the High Court stated in Martin v Martin:[2]

“It is called a presumption of advancement but it is rather the absence of any reason for assuming that a trust arose or in other words that the equitable right is not at home with the legal title.”

[1]See: Charles Marshall Pty Ltd and ors v Grimsley and anor (1956) 95 CLR 353 at 363-6; Martin v Martin (1959) 110 CLR 297 at 303-304; Calverly v Green (1984) 155 CLR 242 at 247 (Gibbs CJ), 255-6 (Mason and Brennan JJ), 266-7 (Deane J); Nelson v Nelson (1995) 184 CLR 547-8 (Deane and Gummow JJ), 584 (Toohey J); 600-601 (McHugh J); Buffrey v Buffrey [2006] NSWSC 1349 at [14] (Palmer J); Stewart Dawson & Co (Vict) Pty Ltd v Federal Commissioner of Taxation (1933) 48 CLR 683 at 690-1 (Dixon J).

[2](1959) 110 CLR 297 at 303; see also Calverly v Green (above) at 256 (Mason and Brennan JJ).

It has been correctly accepted by both parties that the presumption of advancement applied to the relationship between, on the one hand, Norma and William Wilkins, and, on the other hand, the plaintiff and Neil Wilkins, in 1976.[3] Thus as a result of the application of the presumption of advancement, it is presumed that the equitable title to Killingworth is “at home” with the legal title. Accordingly, the defendant bears the burden of proving, on the balance of probabilities, that in 1976 Norma and William Wilkins intended that the plaintiff and Neil Wilkins would hold the legal interest in Killingworth on trust for themselves.
[3]See Dyer v Dyer (1788) 2 Cox 91 at 93-4; 30 ER 42 at 43; Nelson v Nelson (above) at 548-9 (Deane and Gummow JJ), 576 (Dawson J), 585 (Toohey J), 601 (McHugh J); Brown v Brown (1993) 31 NSWLR 582 at 599.

It follows that the critical factual issue, which needs to be determined, concerns the intention of Norma and William Wilkins at the time at which they purchased Killingworth and placed the legal interest in that property in the names of their two sons. In Davies v The National Trustees Executors and Agency Co of Australasia Limited,[4] Cussen J stated in respect of such a case:

“It is impossible to try to arrange into certain sets of categories certain facts, and say beforehand they will or will not become decisive or material. The attention must be kept steadily fixed on the one fact in issue – What was at the time the intention of the purchaser or transferor? Anything which is relevant to that issue is admissible. You may have the evidence of the purchaser or transferor himself, if he is alive, as to his mental condition in the past, and though in some circumstances such evidence should be received with caution, yet it may be accepted.”

[4][1912] VLR 397 at 403; emphasis added.

In Martin v Martin,[5] Dixon CJ, McTiernan, Fullagar and Windeyer JJ referred to that passage from Davies case and stated:

“His Honour’s judgment, which contains a very clear formulation of the principles involved, makes it entirely a question of fact. The burden of proof is firmly placed upon the person asserting that a trust was intended but the issue depends on the intention with which the property was purchased by the parent in the name of the child or the husband in the name of the wife as the case may be.”

[5]Above at 304.

The witnesses called on behalf of the plaintiff were the plaintiff and his wife Cheryl. The witnesses called on behalf of the defendant were the defendant, his wife Margaret, and his other five siblings. The evidence ranged over a large number of topics, but broadly it fell into four categories:

(a)Background evidence which preceded the purchase of Killingworth in 1976. In particular evidence was led as to the involvement of the plaintiff, the defendant and the other siblings in work at Ghin Ghin before 1976. The plaintiff gave evidence that he and his brother Neil, almost to the entire exclusion of the other siblings, helped their father develop Ghin Ghin. That evidence was controverted by evidence called on behalf of the defendant. The plaintiff sought to rely on his evidence as providing a possible explanation as to why his parents placed Killingworth in the name of his brother Neil and himself.
(b)Evidence as to statements made by William and Norma Wilkins, either at the time of the purchase of Killingworth, or shortly thereafter, as to why they had placed the legal interest in the property in the names of the plaintiff and Neil Wilkins.
(c)Evidence as to the conduct of the various parties in respect of Killingworth from 1976 until the death of Norma Wilkins in 2003. That evidence concerned the work done at Killingworth in that period of time, who was responsible for the payment of rates and other outgoings in respect of the property, and who worked on or used Killingworth during that period of time. In essence the plaintiff’s evidence was that he and his brother Neil were primarily, if not exclusively, involved in working and developing Killingworth, and that they both assumed sole responsibility for payments of rates and other outgoings in respect of the property. By contrast, the evidence led on behalf of the defendant was intended to establish that William and Norma Wilkins, during their lifetimes, paid the rates and outgoings of the property, and that, until his death in 1986, William Wilkins treated Killingworth as his own.
(d)Evidence as to statements, particularly by Norma Wilkins, in the latter years of her life, in relation to the disposition of Killingworth upon her death. In particular evidence was led on behalf of the defendant that at various times, particularly from the late 1990s until 2003, Norma Wilkins, on a number of occasions, expressed concern whether the plaintiff would “do the right thing” in relation to his interest in Killingworth, and stated that she should “fix up” her will in order to cater for her concerns in that regard.

It is clear that the first two categories of evidence to which I have just referred are relevant and admissible. However, at an early stage in the proceeding, I expressed concern as to the admissibility of the last two categories of evidence, and particularly the fourth category. I expressed the provisional view that the evidence was not admissible for the truth of the statements made by Mrs Wilkins, but, rather, that it may be admissible as an indication of her state of mind in 2000. In particular, I considered that the evidence may be admissible because the plaintiff had put in issue the behaviour of Mrs Wilkins in relation to the property in the years subsequent to the acquisition of it. I note, in passing, that a similar approach was adopted by Cussen J in Davies v National Trustees Executors and Agency Co of Australasia Limited.[6]
[6]Above at 403.

Near the conclusion of the evidence in the trial I heard further argument as to this issue. Mr Carew who appeared for the defendant, accepted that the evidence was of limited use. He correctly disclaimed any intention to adduce the evidence, of statements by Mrs Wilkins from the late 1990s until her death, as evidence of the truth of what she said. He submitted however that the statements by Mrs Wilkins were part of the circumstantial evidence relevant to Mrs Wilkins’ course of conduct in relation to Killingworth following its acquisition. Mr Carew accepted that the evidence was of limited value in this case, particularly since much of that evidence focussed on a time well remote from the date of acquisition of the property in 1976. As I understand him, Mr Ridgeway who appeared for the plaintiff did not submit to the contrary. He agreed that the evidence was of limited relevance, and thus seems to have conceded that the evidence was admissible as such. However, in his final address Mr Ridgeway altered his position and contended that any declarations by Mrs Wilkins in the period after 1976 were inadmissible.

Clearly, on first principles, evidence as to the background relationship of the parties, before the acquisition of Killingworth, is relevant to the intention of Norma and William Wilkins when they acquired it. Furthermore the authorities make it plain that, in a case such as this, evidence of statements of intention by the purchaser or donor are admissible provided that such statements were made at or about the time of the acquisition of the property in question. In addition, evidence as to subsequent acts and declarations of the donor is admissible if it is adduced to establish an admission against interest by the donor. On the other hand, evidence of subsequent declarations as to intention by the donor, unconnected in time with the purchase of the property, is inadmissible if it is adduced to prove the truth of those declarations. Of course, such evidence may be admissible on other bases, for example, to rebut evidence adduced by the party holding the legal interest and which opposes the implication of a resulting trust. Thus for example where, in a case such as this, the party claiming to own the property absolutely has adduced evidence as to acts or conduct of the purchaser which are said to be inconsistent with the existence of a resulting trust, the donor (or his or her representatives) is entitled to adduce evidence to rebut that testimony. Each of the foregoing propositions are, I consider, uncontroversial, and may be found in authorities such as Charles Marshall Pty Ltd v Grimsley;[7] Davies v the National Trustees Executors and Agency Co of Australasia Ltd;[8] and Damberg v Damberg.[9]
[7](1956) 95 CLR 353 at 363-365.
[8]Above at 403-404.
[9][2001] NSWLR 87 at [45].

There is some disagreement in the authorities as to whether the donor, or his or her representatives, is entitled to rely on subsequent acts and conduct of the donor as positive evidence in support of the existence of the resulting trust. There are a number of authorities which expressly state that such evidence is inadmissible. In Sidmouth v Sidmouth,[10] Lord Langdale MR, in a case involving the acquisition of property by a parent in the name of a child, stated:

“Where property is purchased by a parent in the name of his child, the purchase is prima facie to be deemed an advancement … [T]he relation of parent and child is only evidence of the intention of the parent to advance the child, and that evidence may be rebutted by other evidence, manifesting an intention that the child shall take as a trustee; and in this case as in most others of the like kind, the only question is, whether there is such other evidence. That cotemporaneous acts and even cotemporaneous declarations of the parent may amount to such evidence, has often been decided. Subsequent acts and declarations of the parent are not evidence to support the trust, although subsequent acts and declarations of the child may be so; but, generally speaking, we are looking at what was said and done at the time.”

[10](1840) 2 Beav 447 at 454; 48 ER 1254 at 1257.

Similarly, in Shephard v Cartwright,[11] Viscount Simonds, referring to the presumption of advancement which arises in the case of an acquisition in the name of a child, considered that the principles of law were “well settled” and correctly stated in a number of texts, including the following passage from Snell’s Equity:[12]

“The acts and declarations of the parties before or at the time of the purchase, or so immediately after it as to constitute a part of the transaction, are admissible in evidence either for or against the party who did the act or made the declaration. … But subsequent declarations are admissible as evidence only against the party who made them, and not in his favour.”

[11][1955] AC 431 at 446.

[12]24^th ed p.153.

In Charles Marshall Pty Ltd v Grimsley, the High Court quoted and adopted as correct the passages from Sidmouth v Sidmouth and Shephard v Cartwright which I have quoted above. In their joint judgment, Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ stated:

“The plaintiffs are the daughters of the donor and the initial presumption is that he intended to give the shares to them or, in other words, to make them the absolute beneficial as well as the legal owners of the shares. The plaintiffs start with this advantage. The presumption can be rebutted or qualified by evidence which manifests an intention to the contrary. Apart from admissions, the only evidence that is relevant and admissible comprises the acts and declarations of the parties before or at the time of the purchase … or so immediately thereafter as to constitute a part of the transaction. … Subsequent statements or acts by the donor could only be evidence not for but against him so far as they were admissions that the plaintiffs were the beneficial owners of the shares. Subsequent statements or acts by the plaintiffs could only be evidence not for but against them so far as they were admissions that the shares were allotted to them as trustees for their father.”[13]

[13]Pages 365-6; see also Calverley v Green (above) at 261-2 (per Mason and Brennan JJ).

Finally, in Damberg v Damberg,[14] the New South Wales Court of Appeal considered itself bound by the views of the High Court in Charles Marshall and the House of Lords in Shephard v Cartwright in considering that subsequent conduct of the donor, in developing properties placed by him in the names of his children, was inadmissible. Heydon JA (as his Honour then was), with whose judgments Spigelman CJ and Sheller JA concurred, referred to Shephard v Cartwright and Charles Marshall Pty Ltd v Grimsley and noted that:

“Viscount Simonds’ formulation is generally taken implicitly to exclude not only subsequent declarations which are not admissions, but subsequent conduct. … The principles are old … They stem from an age where party witnesses were disqualified on grounds of interest.”[15]

[14][2001] NSWCA 87 at [45].

[15]At [45].

Heydon JA thus concluded[16] that the evidence of the husband, in developing the properties and working on them after they had been placed in the names of his children, should have been excluded. His Honour stated:

“The husband relied on his conduct in developing the properties and working on them even after they were in the names of the children. Use of the evidence about that conduct for that business offends the principles laid down in Shephard v Cartwright (1955) AC 431 at 445-6 so far as they survive the Evidence Act 1995 (Cth): the conduct was not an admission, was not part of the transaction, and was self-serving. … However the evidence was admitted. … The children had no complaint about this. The evidence in question is far from conclusive, but it offers some support for the trial judge’s conclusion.”

[16]At [91].

On the other hand there is some authority which supports the proposition that subsequent acts and conduct of the donor may be admitted in evidence in support of the proposition that the property acquired by the donor in the name of the donee is subject to a resulting trust. In Davies v The National Trustees Executors and Agency Co of Australasia Limited,[17] Cussen J stated:

“It was said that evidence of declarations of the husband or father (the donor) tending to negative the presumptive advancement must be confined to declarations before or at the time of the transaction being investigated. I agree with this if such evidence is tendered directly to prove his mental condition at that time – that is, to prove the intention which accompanied his act. But I can conceive circumstances in which such a declaration might be proved to rebut evidence given by the other side, or as a basis for direct admission, or that indirect form of admission which may, in certain circumstances, be implied from silence. It was also suggested that evidence of subsequent acts or conduct of the husband or father (as distinct from oral declarations or statements) if tending to negative the presumption could not be admissible. I think this is not correct. Such acts or conduct may be confirmatory of an expression of intention proved aliunde. I respectfully agree with what was said by Lopes LJ in Re Grove:[18]
‘I have always understood the law to be that in order to determine a person’s intention at a given time you may regard not only conduct and acts before and at the time, but also conduct and acts after the time, assigning to such conduct and acts their relative and proper weight and cogency.’

Notwithstanding this statement I should exclude subsequent oral declarations of the husband or father, and I should also exclude subsequent acts which, from want of continuity or otherwise, must in substance be regarded as merely equivalent to oral declarations if the tendency was to negative the presumption of advancement and such subsequent declarations or acts were tendered merely as direct proof of the prior intention. My view on this point makes admissible evidence tending to show that the husband or father dealt with the property as his own, particularly if he so dealt with it continuously from the time of the transaction being investigated. The admission of such evidence is merely an illustration of a general principle as to such confirmatory matter being admissible. Its weight in some circumstances would be very great, in others very small.”

[17]Above at 403-4.

[18][1888] 40 CD 216.

In the present case it is not necessary to resolve the difference in the authorities. It was the plaintiff who sought to adduce evidence as to the conduct of his parents, and in particular his mother, in relation to Killingworth after it was acquired by them and placed in the names of the plaintiff and his brother Neil. The plaintiff sought to prove that he and Neil, and not his parents, had been responsible for payment of rates and other outgoings in relation to the property, and for tending and developing the property. In those circumstances evidence adduced by the defendant as to the conduct of William and Norma Wilkins, after the acquisition of Killingworth, was clearly admissible in rebuttal. In any event, to the extent that it was relied on affirmatively by the defendant, it was adduced without objection on behalf of the plaintiff.

In this context, the issue as to the admissibility and use (if any) which might be made of statements by Norma Wilkins, particularly in the latter years of her life, must be determined. Certainly, as conceded by Mr Carew, those statements could not be used to prove the truth of what was said by Mrs Wilkins. In submission it was argued by Mr Carew that they were evidence as to the state of mind of Norma Wilkins, albeit between the late 1990s and her death in 2003. In my view, if the plaintiff had not adduced evidence as to the conduct of Norma Wilkins after the acquisition of the property, such statements could not have been relevant or admissible for that purpose, or indeed for any other purpose. However, as I have stated, the plaintiff has sought to prove acts and conduct of the two donors upon which he has sought to rely as evidence consistent with the property having been given to the plaintiff and his brother Neil absolutely. In that context it was, I consider, permissible for the defendant to adduce, in response, declarations by either donor which might be regarded as assertions of ownership by them, for the purpose of rebutting the evidence adduced by the plaintiff. Nevertheless, in this case the question is somewhat academic. The declarations made by Mrs Wilkins were at a time well remote from the date of acquisition of the property. They were made in the midst of family tension when the relationships between the plaintiff and a number of his siblings had broken down. What was said by Mrs Wilkins was, at best, equivocal. Thus, as will be seen, the evidence on any view is of little, if any, weight.

Before I turn to the evidence relating to the factual issues which are in dispute, it is necessary to outline some further facts by way of background. Those facts are mainly matters of common ground between the parties. The late William Wilkins was born in 1924, and Norma Wilkins was born in 1922. As I have stated there were seven children of their marriage, five sons and two daughters. In order of age they are: Gary (the defendant) (aged 59); Beverley (aged 58); Geoffrey (aged 57); Neil (aged 54); Gregory (the plaintiff) (aged 52); Brian (aged 51); and Patricia (“Patsy”) (aged 48). Mr and Mrs Wilkins were a devoted and united couple. William Wilkins worked as a bus driver. He and his wife were possessed of considerable enterprise and initiative. They purchased a number of residential properties, particularly in the Yea area, and in the northern suburbs of Melbourne, during the period from the early 1960s until William Wilkins’ death in 1985. In his spare time William Wilkins renovated those houses with the assistance of his sons. In his evidence the plaintiff stated that it was he who either predominantly or exclusively helped his father in that enterprise, but I accept the evidence given by the defendant and his siblings that the other brothers also gave assistance in that regard. After the houses were renovated they would be leased for a period of time, and then sold. Gary Wilkins estimates that during the period from the early 1960s until the death of his father in 1985 William and Norma Wilkins purchased, renovated and subsequently sold some 13 residential properties. Although the evidence is not entirely clear it appears at any given time they held more than one such property for leasing purposes.

The Wilkins family was a happy and united family until a most unfortunate dispute erupted between the plaintiff and the defendant in 1996. Until that time all of the siblings enjoyed good relationships with each other. It would appear that the plaintiff particularly had a close relationship with his younger brother Neil. Each of the seven children enjoyed close relations with their parents, to whom they all remained devoted during their lifetimes. The property at Ghin Ghin was purchased in 1966. It consisted of some 60 acres of uncleared rural land. Over the course of the next decade the land was progressively fenced and cleared. Most of the clearing works occurred during the early to mid 1970s. At that time a bulldozer contractor was engaged to clear some 40 acres of bushland on Ghin Ghin. At about the same time a number of dams were dug on the property. During that period of time the plaintiff and his brother Neil commenced a small enterprise raising cattle on Ghin Ghin. In about 1974 Mr Wilkins commenced to build a residence on Ghin Ghin. There is a dispute in the evidence as to which of his children assisted him. As I have stated the plaintiff maintains that he and Neil, to the exclusion of the other siblings, assisted in the construction of the house. However the evidence of the defendant and the witnesses called on his behalf is that all of the sons, and to a lesser degree the two daughters, gave assistance to their late father in the construction of the residence. Although it appears that a Certificate of Occupancy was never obtained in respect of the house, nonetheless it was habitable by the mid 1970s.

By the time Killingworth was purchased in 1976, Gary, Beverley and Geoffrey were all married and living in their own homes. The plaintiff had commenced his apprenticeship as an electrician in 1971, which he had completed by 1975. He was still living at home. Neil Wilkins had undertaken and completed a Bachelor of Agricultural Science degree in 1974. At the end of 1975 he went to Shepparton to work on orchards, and in his evidence stated that he was there when Killingworth was purchased. Brian Wilkins was travelling around Australia on a trip with some friends, and he did not return until November 1976. Patsy Wilkins was engaged, but she was still living at home.

At the time at which it was purchased Killingworth was cleared pastureland. There were old cattle yards on the property but little else by way of improvement. It appears there might have also been some dams or waterholes which later needed either clearing or further digging. After its purchase, Gregory and Neil ran their small agricultural enterprise on Killingworth on which they raised and fattened steers and sold them. In addition, other members of the family from time to time kept horses on that property as well as on Ghin Ghin.

From 1974 Gregory commenced to conduct a family horse racing syndicate. That syndicate initially comprised the plaintiff, the defendant, Norma Wilkins, Neil and Geoffrey. Subsequently Geoffrey dropped out of the syndicate. The horses owned by the syndicate were kept at Killingworth and, it seems, also at Ghin Ghin. Gregory handled the payment of expenses of the syndicate, and then sought reimbursement from other syndicate members. On the other hand, throughout the period from the purchase of Killingworth in 1976 until her death in 2003, rate notices for both Ghin Ghin and Killingworth were sent to Norma Wilkins’ address at 848 Nicholson Street, North Fitzroy. Norma Wilkins never owned a cheque book of her own during her lifetime. After her husband’s death she sometimes paid the rates herself by cash. However, most of the rate notices in respect of both properties were paid by cheque by one of her children. Between 1985 and 2003 Beverley and her husband Ian Burgess paid most of the rate notices. In turn, Norma Wilkins, who was given to keeping large quantities of cash in her home, reimbursed the member of her family who had paid the rates for the properties. A key area of dispute is whether, in turn, the plaintiff and Neil Wilkins reimbursed their mother for rates paid by her in respect of Killingworth from 1976. The plaintiff maintains that she was so reimbursed. On the other hand Neil Wilkins, and a number of the other witnesses called on behalf of the defendant, maintain that their mother was not reimbursed for the rates which she had paid for Killingworth.

It is also common ground that during her lifetime, and in particular shortly after her husband’s death in 1985, Norma Wilkins became obsessed with what she considered to be her right to obtain a pension. She told a number of her children that her husband had served in the war, and therefore, when she reached retirement age, her country should pay her the pension. In this period of time, Norma Wilkins placed a number of amounts of money, which she held, on term deposit accounts in the names of her children or grandchildren. It was acknowledged by the witnesses that the moneys which were the subject of those term deposits belonged to Norma Wilkins. None of the persons in whose names those moneys were invested retained those moneys, nor did they receive any of the interest earned on the term deposits.

As I have stated, the relationship between the members of the Wilkins family remained quite amicable, and indeed close, until the mid 1990s. In 1996 there was a bitter falling out between the plaintiff and the defendant in respect of a matter pertaining to the horse racing syndicate. Sensibly the specific cause of the dispute, and particularly the rights and wrongs of it, were not the subject of evidence or debate in the trial. What is relevant is that from that date relations between the plaintiff and the defendant effectively ruptured. They now harbour significant bitterness towards each other. In cross‑examination the defendant frankly admitted that he did not like the plaintiff, and that he resented him. It is clear from the demeanour of the plaintiff that the antipathy is mutual. Unfortunately, the bitterness between the plaintiff and defendant has, in varying degrees, affected the plaintiff’s relationships with his other siblings. So far as I could detect, it would seem that the plaintiff has poor relations with his two sisters. There also seems to be some tension between the plaintiff and his brother Geoffrey. Brian Wilkins told me that he has tried to “sit on the fence”. Neil Wilkins has also tried to detach himself from the family disputes, but his relationship with the plaintiff has soured quite substantially. It would appear that the relationship between the plaintiff and the rest of his family deteriorated particularly from 2000. Nonetheless the plaintiff did continue to retain a good relationship with his mother until her death. I should also add that the evidence of a number of the witnesses was that, during their lifetimes, William and Norma Wilkins treated their seven children equally, and did not favour any one or more of them more than the others.

In that background it is necessary to consider the evidence relating to the key question whether, when they purchased Killingworth in July 1976 in the names of the plaintiff and Neil, William and Norma Wilkins intended to make an absolute gift of the property to the plaintiff and Neil Wilkins, or whether, as contended by the defendant, they intended to retain the beneficial title to the property for themselves. Although evidence has been led as to the four categories of evidence to which I have already adverted, I bear in mind the admonition of Cussen J in Davies’ case that attention must be “kept steadily fixed” on the one fact in issue, namely, what was the intention of Norma and William Wilkins at the time they purchased Killingworth? The defendant bears the onus of proving that his parents intended to retain the beneficial interest in the property for themselves. In particular, the defendant must establish, on the balance of probabilities, a “definite intention” by Mr and Mrs Wilkins to retain the beneficial title for themselves, and not a “nebulous intention” to rely on their relationship with their two sons as a means by which they might retain some control over the property.[19]
[19]Drever v Drever (1936) 42 ALR 446 at 450 (Dixon J, dissenting); Damberg v Damberg (above) at [44].

The difficulties involved in the assessment of the evidence in a case such as this are self evident. The fundamental question is what was the intention of Mr and Mrs Wilkins some thirty years ago. Evidence was given, as to what they said in relation to that matter, both by the plaintiff, and by the defendant and his siblings. Of necessity each witness had to rely on his or her own memory. Until the dispute about the property arose in about 2000, none of the witnesses had any specific reason to cast their minds back to the conversation which they had with their parents at about the time of the purchase of Killingworth. Furthermore, much has happened to the Wilkins family in the interim. The bitter dispute that has arisen in the family, and which has affected the relationships of the plaintiff not only with the defendant but with his other siblings, is a factor which I cannot ignore. While I consider that none of the witnesses deliberately set out to mislead me or to give false evidence, nonetheless I was conscious that it was possible that they may have been affected in their recollections, depending on which side they took in the dispute between the plaintiff and the defendant.

In about 1999 Norma Wilkins commenced to suffer ill health. Thereafter she was admitted to hospital on a number of occasions with reasonably serious health problems. A number of the witnesses called by the defendant gave evidence, which I accept, that at about that time Norma Wilkins made comments to them to the effect that she must do something about her will in order to cater for Killingworth. Norma Wilkins never made clear to those persons just what she had in mind. However she certainly entertained making some adjustment to her will. That evidence, of course, was not admitted for the truth of what Mrs Wilkins stated to the defendant’s witnesses. However, the evidence of those statements by Mrs Wilkins is a matter which I need to take into account in assessing the evidence of a number of the witnesses as to what they recall was said to them some thirty years ago. In particular, those statements by Mrs Wilkins may have engendered in members of the Wilkins family the genuine belief that the plaintiff was not entitled to his share of Killingworth, and that it had always remained property of Norma and William Wilkins. While none of the foregoing considerations, to which I have just adverted, has necessarily affected the recollections of the witnesses in this case, nonetheless I approach the evidence of all witnesses, including the plaintiff, with a degree of caution, given that their memories may well have been affected by their own individual views as to the rights and wrongs of the dispute between the plaintiff and the defendant relating to the ownership of Killingworth.

I therefore turn to consider the competing evidence given in relation to the principal issue, namely whether the plaintiff and his brother Neil hold the Killingworth property on trust for the estate of Norma Wilkins. It is convenient for me to approach the evidence in the order of the four categories of evidence to which I have adverted in paragraph 12 above. The first category relates to the question whether the plaintiff and his brother Neil had made such a contribution to the development of Ghin Ghin that William and Norma Wilkins felt they should, in return, give their two sons the Killingworth property absolutely. The plaintiff did not suggest in his evidence that he was told by his mother or father, when Killingworth was purchased, that that property was given to Neil and himself in appreciation of the work which they had done and expenses which they had incurred in relation to Ghin Ghin. The evidence as to the work done at Ghin Ghin was adduced by the plaintiff with a view to persuading me to infer that the plaintiff’s contribution to Ghin Ghin was a reason or circumstance which might have caused his parents to have given Killingworth to the plaintiff and to Neil.

The plaintiff’s evidence was that after the purchase of Ghin Ghin, Neil and he visited that property quite regularly to assist in various works which were required to be carried out. He claimed that Neil and he were solely responsible for helping their father to build the house which was constructed at the property. He also stated that Neil and he had engaged a bulldozing contractor to clear 40 acres of bush on the property. The bulldozer was engaged for three weeks in that operation. The plaintiff stated that he and Neil paid for the bulldozer and the operator, and also paid for the cost of sowing and fertilising the pasture which was developed out of the cleared land.

The plaintiff was not supported in that evidence by any of his siblings. The defendant stated that all members of the family participated in work at Ghin Ghin. The ages of the siblings varied, so that the physical contribution made by some was, necessarily, greater than that made by the others. However he stated that each of his siblings were involved in assisting to clear the property, and in constructing fences on the property. He stated that each member of the family, and in particular all five sons, assisted in the construction of the house. He further stated that his parents paid for the cost of the bulldozing and pasturing of the property. The defendant was supported in that evidence by the testimony of his wife Margaret. She stated that she did not go to the property so often until the house was built. However she noted that all of the sons contributed to the construction of the house and that each of them worked on the property. Beverley Burgess, Geoffrey, Brian and Neil Wilkins all gave evidence to like effect. Brian Wilkins stated that all the family pitched in and helped the father to work on Ghin Ghin and to build the house there. Neil Wilkins, who the plaintiff claimed was the only other sibling other than himself who made much of a contribution to the development of Ghin Ghin, was firm in his evidence that each of his siblings assisted with work which needed to be done at Ghin Ghin, including hand clearing with an axe, construction of stockyards, and building of some internal fencing. Neil Wilkins denied that he made any financial contribution to the bulldozing or clearing of Ghin Ghin, or of the digging or clearing out of dams at Ghin Ghin. He also stated he made no financial contribution to the sowing and later fertilising of the pasture at Ghin Ghin.

In assessing the above evidence, I am well satisfied, on the balance of probabilities, that each of the family members, and in particular the sons, made a physical contribution to what work needed to be carried out at Ghin Ghin, and to the construction of the house. I consider that that aspect of the evidence of the witnesses called on behalf of the defendant was credible and probable. The Wilkins family was a close family unit. After their marriage Gary and his wife continued to visit both their sets of parents almost each evening. It is most likely that, after his marriage in the early 1970s, Gary continued to attend at Ghin Ghin. The same can be said about the other older siblings. It is also likely that, in the dynamics of a close and united family, each of the offspring, and in particular the sons, would have assisted with work which needed to be done at Ghin Ghin. No doubt each sibling contributed according to his or her abilities and age. However I am satisfied that the family as a unit worked on Ghin Ghin and helped to develop it. In so finding I do not consider that the plaintiff set out to deliberately deceive me in claiming that he and Neil were the sole contributors to the work carried out at Ghin Ghin. Rather, a witness’ memory of such matters is very much a matter of perspective. It is understandable, particularly in the context of the acrimony which now exists in the family, that the plaintiff should remember the work which he carried out at Ghin Ghin, and consider that he was the main or sole contributor to that work.

I am also satisfied on the balance of probabilities that it was William Wilkins, and not the plaintiff and his brother Neil, who paid for the costs of developing Ghin Ghin, including the costs of bulldozing it, constructing dams on it, and fertilising it with superphosphate. At that time Neil Wilkins had only just completed his university degree and was working picking fruit in Shepparton and the Goulburn area. The plaintiff had completed his apprenticeship as an electrician just one year previously. While no doubt both of them were thrifty, and indeed they were able to run a small cattle raising enterprise at Ghin Ghin, nonetheless it is most improbable that their father would have permitted them to bear the financial cost involved in engaging a contractor for three weeks to bulldoze and clear 40 acres of bushland. Neil Wilkins presented as a credible witness. I found him to be the most objective of all the witnesses who testified in the case. He was adamant that he did not pay for any of the costs of development at Ghin Ghin. When he himself incurred any expense in that regard, he was always reimbursed by his parents. That evidence is both probable and plausible. I am therefore satisfied on the balance of probabilities that, while the plaintiff and Neil Wilkins certainly did their fair share of work on Ghin Ghin, the other siblings, and in particular their three brothers, were also involved in physical work relating to the property, and relating to the construction of a house at Ghin Ghin.

In that context I turn to the second, and the critical, area of factual dispute between the parties, namely the evidence of contemporaneous actions and declarations of William and Norma Wilkins at about the time that they purchased Killingworth in the names of the plaintiff and Neil Wilkins. I shall consider the evidence, first, in isolation from the evidence as to subsequent acts and declarations of the parties after 1976.

The plaintiff, Gregory Wilkins, stated that before his parents purchased Killingworth there was little discussion about how they were buying it. The plaintiff said that he attended the auction with his parents and with Neil Wilkins. None of the other siblings were there. His father made the successful bid at the auction. When they went in to sign the contract, William Wilkins said to Neil and himself (in the presence of his mother) “This block is for you boys”. The plaintiff said that his father was a man of few words. That was the only time when he ever spoke about the question of who owned the property. When his father told him that the block was for Neil and himself, his father did not say that it was being held for anyone else. Neil and the plaintiff signed the contract of sale, and were subsequently registered as joint proprietors of the property.

In his evidence Neil Wilkins stated that he was not present at the auction, but was told of the purchase of Killingworth shortly after it had been acquired. Thus all the witnesses called on behalf of the defendant on this issue gave evidence as to what their parents told them shortly after Killingworth was purchased. The defendant, Gary Wilkins, stated in his evidence that his parents had looked at the Killingworth property twice before they purchased it. On one occasion the whole family went to inspect the property while they were staying at Ghin Ghin on a weekend. On that occasion his parents did not mention that they were going to put the property into the names of his two brothers. In his evidence the defendant stated that his wife and he used to visit his own parents, and also his wife’s parents, almost each evening. Shortly after 2 July 1976, when they called in to see his parents in their Nicholson Street home, his parents told him that they had bought the property that they had been looking at. The defendant stated that his parents said that they had put the property in the names of the plaintiff and Neil. The defendant asked them why they had done that. They responded that they were trying to hide their assets at Yea for tax purposes. Gary Wilkins did not ask them how they would achieve that purpose by putting the property in the names of his brothers. He said that his parents had a “dreaded fear” of the tax commissioner. Gary Wilkins’ evidence was that, in that conversation, his parents had said that they were trying to hide their assets, and that they were doing so for tax purposes. In cross-examination he was less certain as to whether his parents had stated that they were hiding the asset for tax purposes, or whether that was an inference which he had drawn from the conversation with him. Later in his evidence the defendant said that a week or two after that, in another conversation, his parents said that although the property was in the names of the plaintiff and Neil “It’s really our property”. They again said that they were trying to hide their asset.

The defendant’s wife Margaret Wilkins also said that she was told about the purchase of the Killingworth property after it had been bought. She said that she had looked at the Killingworth property in company with her parents in law, husband and siblings a couple of weeks previously. After the purchase of the Killingworth property her parents in law had said that they were going to put the property into Greg’s and Neil’s name but that it was for the family. The defendant asked “Why?” and they said “For tax purposes”, and that they did not want any more property in their own names.

Patsy Wigham (nee Wilkins) gave evidence to similar effect. She said that before her parents had purchased Killingworth they had talked about it. After they purchased the property, her parents told her, in their home, that they had purchased the property and put it into the names of her brothers Gregory and Neil for tax purposes. Patsy asked why they did not put the property in her name and why they put it in her brothers’ names, and they responded that Patsy was then only 17 and that her other brothers (the defendant, Brian and Geoffrey) had partners. She said that her parents stated that Greg and Neil were single at the time and that that was why they put the property in their names.

Beverley Burgess (nee Wilkins) gave evidence that before the property was purchased she inspected it with her parents. During that inspection her parents told her that they were going to buy the land and that they were going to put it in Gregory’s and Neil’s names, because her mother wanted to go on the pension and she did not want any more property in her name. Her mother also said that the property would be put in the names of Gregory and Neil for tax purposes. After the property was purchased Norma Wilkins telephoned Beverley, and said “We’ve bought the property”. Her mother did not say anything about whose name it was in, she simply said “We have bought the property”.

Geoffrey Wilkins gave evidence that he believed that he had been told about the purchase of Killingworth when he visited his parents’ house in North Fitzroy. He used to visit his parents there almost daily. Geoffrey Wilkins said that his parents said to him “We bought this land”. He said his parents told him that they had put the property in the name of Gregory and Neil. Geoffrey did not ask his parents why they had done that, and they did not give any explanation for doing so. From the conversation Geoffrey understood that the property was a family property, and therefore he did not react when told that it was being put in the names of his two brothers.

At the time of the purchase of Killingworth Brian Wilkins was travelling around Australia. From time to time his mother would write letters to him addressed to destinations at which he would later arrive. He said that in one such letter his mother had told him “We have bought another property at Yea”. In the letter his mother described the property, but did not state that it had been put in the names of his two brothers.

Finally, Neil Wilkins stated that he did not attend the auction of Killingworth. At the time he was working at and living on an orchard near Shepparton. He was living in a picket hut which did not have a telephone line. When he was in his employer’s house his mother telephoned him. Neil Wilkins said that his mother told him that “they” had purchased a place at Killingworth. She said that they had put it in Greg’s name and his (Neil’s) name. She said the reason for doing so was that they did not want to have too many properties in their own names. Neil Wilkins said that he could recall the conversation well because, when the phone call was completed, he said to the people in his employer’s house that he was disappointed that his parents had not purchased a property in an irrigation area. On the next day, or shortly thereafter, Neil drove to the property and inspected it. He signed the contract of purchase but does not have any specific recollection of doing so.

As I have stated, I do not consider that any witness who gave evidence before me intentionally set out to tell other than what the witness considered to be the truth. Nonetheless, in assessing the reliability of each witness, I bear in mind the matters to which I have already referred, namely the effect of the effluxion of time on the memories of various witnesses, and, also, the potential effect on witnesses’ memories of the unhappy conflict in which this family finds itself embroiled. I consider that the plaintiff endeavoured to tell me the truth. Nonetheless I treat his evidence with a great deal of caution. As I have already found, I do not accept his evidence concerning the relative contributions of himself and Neil on the one hand, and his other siblings, in the development of Ghin Ghin. I consider that his evidence on that topic was skewered by the partisan position which he takes in the case. This litigation is not just a fight about money. It is clearly a contest involving strongly held conflicting feelings of rights and wrongs. I gained the impression, both in relation to Ghin Ghin, and in relation to the plaintiff’s evidence on other topics, that his perception of past events was necessarily adversely affected by the bitter dispute he has with his eldest brother Gary. I shall refer later to the evidence concerning payment of rates and outgoings at Killingworth. However, I found that the plaintiff’s evidence on that topic was similarly affected.

I detected in the plaintiff a very strong feeling that he deserves his interest in Killingworth. Indeed in an argument which he had with Neil in about 2000 he said so much to Neil. In that argument he did not assert that he had a right to own his interest in Killingworth, but rather that he deserved it. While Neil, most fairly, cautioned that that was a remark made on the heat of the moment, nonetheless it did betray a feeling by the plaintiff that he has been hard done by as a result of the claim by his siblings that he does not have beneficial ownership of his interest in Killingworth.

On the other hand, I regard Neil Wilkins as the most objective and dispassionate witness who gave evidence before me. It is clear that Neil Wilkins wishes to remain outside the family dispute. He has found himself drawn into it. As a result at one stage he proposed that the plaintiff and he sell Killingworth, so that he could distribute his half share of it between his siblings and himself. He has taken the view that his interest in Killingworth should form part of his mother’s estate. However, in cross-examination he was not critical of the plaintiff for bringing these proceedings. Where his evidence differed from the plaintiff’s, Neil Wilkins did not accuse the plaintiff of being a liar or deceitful, but rather attributed the differences to a difference of opinion and memory. While the two brothers are currently estranged, I did not detect any antipathy felt by Neil Wilkins to his brother. He also made a number of concessions in his evidence, to one of which I have already referred.

I also consider that Neil Wilkins’ memory of the telephone call which he had with his mother was an accurate memory. I was impressed that Neil Wilkins made every effort to differentiate between what he remembered of the conversation, and what he had inferred from it. Thus he told me that he believed that his mother said that it was for tax reasons but he could not “swear to that”. He accepted that that might have been an inference which he drew rather than what he had been told by his mother. I accept that Neil Wilkins has a genuine reference point for recalling the conversation. He has a specific and good memory of remarking to the other people in the house in which he was then staying that he was disappointed that his parents had not purchased the property in an irrigated area such as Shepparton. Thus I accept that Neil Wilkins’ memory of the conversation was as accurate as a memory could be three decades later. I accept that he was told by his mother that the reason why the property had been put into his name and the plaintiff’s name, was so that his parents did not have too many properties in their own name. Certainly he was not told that the property was a gift to himself and his brother Gregory.

Mr Ridgeway submitted that I should not accept that Neil Wilkins had an accurate memory concerning the circumstances of the purchase of Killingworth. He submitted that I should accept that the auction of Killingworth took place on 2 July 1976, which is the date recorded on the contract of sale. In those circumstances he contended that it is unlikely that Neil Wilkins, who was recorded as a joint purchaser on the contract, would not have been present and signed the contract of sale on that date.

I do not accept that argument. I do accept that it is probable that the auction of Killingworth took place on 2 July 1976. However that does not necessitate a finding that Neil Wilkins signed the contract on that date. The plaintiff and Neil Wilkins were shown to be joint purchasers of the property on the contract of sale. The auctioneer may well have been satisfied that it was sufficient to him to obtain the signature of the plaintiff on the date of the sale. Furthermore, by that time William Wilkins had purchased other properties in the Yea area. It is quite feasible that the auctioneer trusted William Wilkins to ensure that his other son Neil would execute the contract without delay. Indeed the evidence of Neil Wilkins was that he signed the contract on the next day or soon thereafter. Thus I do not consider that the circumstance relied on by Mr Ridgeway disturbs my assessment of Neil Wilkins as having a good and reliable memory of the circumstances of the purchase of Killingworth in July 1976.

I was also impressed with the evidence of the plaintiff’s youngest brother Brian Wilkins. Brian Wilkins has endeavoured to avoid taking sides in the dispute between the plaintiff and the defendant. Recently he helped the plaintiff with an extension to his home. I consider that Brian Wilkins’ evidence was not adversely affected by the strong emotional undercurrents which are at large in the family. While I do exercise caution in relation to Brian Wilkins’ memory of the letter written thirty years ago, nonetheless I accept that Brian Wilkins was accurate in recounting to me the fundamental gist of the letter. That letter told him that his parents had bought another property at Yea, and did not mention that the property was in the names of his brothers Neil and Gregory, let alone that it was a gift to those two brothers. If the property was a gift to the plaintiff and Neil, as the plaintiff asserts, then it would be extraordinary for Norma Wilkins not to have informed Brian Wilkins of that fact in her letter to him.

I also consider that Geoffrey Wilkins’ evidence was quite reliable. I did perceive some antipathy by Geoffrey to the plaintiff, albeit that it was somewhat restrained. Nonetheless I did gain the impression that Geoffrey Wilkins was giving evidence as to what he could genuinely recall. He did not appear to be affected by any temptation to volunteer evidence which might assist the defendant. For example, he conceded that he did not know whether Neil or Gregory had paid for works at Ghin Ghin or Killingworth, and he could not say who had organised the construction of dams and cattle yards at Killingworth. I did not detect any keenness on behalf of Geoffrey Wilkins to buy into the dispute between the plaintiff and the defendant. Geoffrey Wilkins was quite clear in his evidence that his parents told him that “we” had bought Killingworth and put it in the names of Gregory and Neil. There was an air of reality about Geoffrey’s evidence. In effect, his parents told him that they had purchased another family property, but had placed it in the names of his brothers.

The other witnesses called on behalf of the defendant were, I consider, somewhat affected by the atmosphere of dispute which seems to now infect the Wilkins family. Clearly Gary Wilkins was a witness in his own cause. As with the plaintiff I do not consider that he endeavoured to deceive me or to tell otherwise than what he genuinely considered to be the truth. Nonetheless he is involved in a bitter and expensive legal contest with his younger brother. In his own words there is “no love lost” between himself and the plaintiff. I do not disregard his evidence as to what he was told by his parents but I do treat it with some caution. The defendant’s wife Margaret presented as an intelligent woman who obviously had a strong feeling of emotional attachment to her parents in law. I consider that the plaintiff’s two sisters Beverley and Patsy, in some form, displayed feelings of hurt and anger towards the plaintiff. Again as with all the other witnesses I consider that they endeavoured to tell me what they could remember, but I do factor in the possibility that their memories have been affected by the fact that they are, apparently, very much in the camp of the defendant and not the plaintiff.

Ultimately I consider that an important guide to the assessment of the competing evidence given on behalf of both parties lies in the objective and inherent probabilities or improbabilities of the differing accounts given, on the one hand, by the plaintiff, and, on the other hand, of behalf of the defendant. There are I consider a number of objective reasons why the accounts given by the defendant’s witnesses are more inherently probable than that given by the plaintiff. In the first place, there is no reason why the plaintiff’s parents would have chosen to give the property only to the plaintiff and Neil, and not to any other siblings. Killingworth was the only property which William and Norma Wilkins placed in the names of any of their children. All other properties were purchased in their own names. Although from time to time they did financially assist some of the siblings, they never did so by purchasing a property for them. Secondly, it is significant that William and Norma Wilkins did not consult with Neil Wilkins or, to any great degree, with the plaintiff, before purchasing the property in their name. They gave no forewarning to the plaintiff and Neil that they were purchasing the property for them. If the parents had intended to give their two sons a property of their own, it would be logical and sensible that they would have first consulted their sons to ensure that they were happy with it. This is particularly so in light of the fact that Neil Wilkins had completed an agricultural science degree. Nor has any plausible reason been advanced why Gregory and Neil should be favoured above all the other siblings. William and Norma Wilkins did not play favourites among their children, and maintained good relations with all of them.

Furthermore, the plaintiff and his brother Neil did not have any special or pressing need which would have been fulfilled by the purchase of a rural property for them. In all probability Killingworth was a better property than Ghin Ghin. Certainly, albeit three decades later, Killingworth is currently valued at almost twice the price which was achieved for the sale of Ghin Ghin by the defendant as the executor of his mother’s estate. Killingworth was already cleared land and was ready for agricultural use. There is no logical reason why William and Norma Wilkins would have given a property, which was at least as good as, if not better than, their own property, to their two children. The property was not large enough to provide a viable living for the plaintiff and Neil Wilkins. Thus it could not be sensibly suggested that the parents were trying to establish their sons as farmers. Indeed, at that time the plaintiff was embarking on his career as an electrician. While he had an interest in agricultural matters, so too did some of his other siblings, and in particular Geoffrey.

On the other hand, there are a number of objective facts which support the proposition that William and Norma Wilkins were intending that Killingworth remain a family property, and that it be placed in their two sons’ names in order that it not be seen to be owned by themselves. The property was reasonably close to the Ghin Ghin property. The latter property was very much a focal point of family life after the children had grown up. It is understandable that William and Norma Wilkins might wish to purchase another property for themselves in the same locality and thus to continue the family’s attachment to the area. As I have stated, albeit one decade later, Norma Wilkins was very concerned to ensure that the proceeds of her husband’s superannuation not be held in her own name. Clearly she was not adverse to placing some of her property in the names of her children or grandchildren in order to “conceal” or “hide” the property for her own purposes. In other words, she certainly was not reluctant to use her children’s (or grandchildren’s) names to hold property for her, if she considered it to be advantageous to do so.

Mr Ridgeway has submitted that the defendant has failed to show that there was any discernible tax advantage which could be derived by placing the property in the names of the plaintiff and Neil Wilkins. Mr Carew correctly conceded that that is so. However, as Mr Carew has pointed out, that does not mean that Norma and William Wilkins did not have in mind that there might be some tax advantage in placing Killingworth in the names of their two sons rather than themselves. There are two possible explanations why the defendant is unable to point to any discernible tax advantage in placing the property in the names of the plaintiff and Gregory. Firstly, there might have been such an advantage, which is not evident to the parties or myself. Alternatively Norma and William Wilkins might have been misconceived in considering that there was such an advantage. Neither of them had any significant education. They were enterprising people who were embarking on a process of enhancing the financial position of the family. They both worked very hard to do so. In those circumstances it is quite plausible that in purchasing Killingworth in the names of the plaintiff and Neil Wilkins, they were not intending to give the property away to their sons, but rather were intending to place it in their sons’ names in order to protect their financial position.

Thus I consider that the account given by the plaintiff is improbable. On the other hand, while the witnesses for the defendant have given accounts of differing conversations which they had with Norma Wilkins, there is a consistent thread in those conversations. Firstly, Norma Wilkins spoke in terms of the property being held for herself and her husband. Secondly, except in her letter to her son Brian, she told the other witnesses that she was placing the property in the names of the plaintiff and Neil Wilkins. She did not say that she and her husband were giving the property to their sons. Thirdly, I accept that it is probable that she did give an explanation for doing so, at least to some of her children. Thus, while I have some caution about their evidence, I do accept that the defendant, his wife Margaret, and Patsy Wilkins, were each told by their mother that she was hiding the asset for tax reasons. I have some reservations about what was said to have been told to Beverley Wilkins about the pension. She alone says that she was told of the proposal to purchase the property in her brothers’ names before its acquisition. She also alone says that her mother told her that the reason for doing so is that she wanted to qualify for the pension. While it is quite possible the discussion occurred, the account given by Beverley Wilkins is so much out of step with the accounts given by other witnesses that I do not consider I should rely upon it in reaching my decision in this case.

It was submitted on behalf of the defendant that it was unlikely that William and Norma Wilkins were endeavouring to hide their assets, since both before and after the date on which Killingworth was purchased, they continued to acquire other residential properties in their own names. Those properties were purchased as part of the enterprise in which Mr and Mrs Wilkins were involved in acquiring properties, renovating them, and then leasing and selling them. However there is a clear point of distinction between, on the one hand, the Killingworth property and those investments properties. The residential properties which were purchased by Mr and Mrs Wilkins were not acquired with the intention that they be held by them over a long period of time. Rather, as Gary Wilkins said in his evidence, the properties were bought, developed, leased and then sold. By contrast the nature of the Killingworth property was such that it was intended to be acquired and held for at least a substantial period of time. Thus while Mr and Mrs Wilkins may have been content to buy and sell properties in their own names, it is quite feasible that at the same time they were reticent about holding further properties in their own names on a long term basis.

The foregoing analysis of the evidence has focussed on events leading up to, and contemporaneous with, the purchase of Killingworth in July 1976. Pausing there before I consider the evidence which was adduced as to events occurring after 1976, on the foregoing analysis I am satisfied on the balance of probabilities, on the evidence which I have discussed so far, that when William and Norma Wilkins purchased Killingworth in the names of the plaintiff and Neil Wilkins, they intended that they themselves be the owners of the property, notwithstanding that the property was purchased and registered in the names of their two sons.

Mr Ridgeway submitted that if I were to accept the evidence of the defendant and his witnesses, nonetheless that evidence does not establish a “definite intention” on behalf of William and Norma Wilkins to retain the beneficial title to Killingworth. I do not accept that submission. Norma Wilkins spoke to the defendant, to his wife Margaret, and to his siblings Neil, Geoffrey and Patsy in terms which clearly indicated that she and her husband considered themselves to be the owners of Killingworth. Her letter to her son Brian was expressed in similar terms. At no time did she say to any of the witnesses that she and her husband were giving Killingworth to the plaintiff and Neil. Rather, and by contrast, she simply said that she and her husband were putting the property in the “names” of the plaintiff and Neil. I also accept that she told some of the witnesses that the property was being placed in the names of the plaintiff and Neil in order to conceal the asset. It would not be necessary to conceal it if the plaintiff and Neil were the true beneficial owners of it. It must be borne in mind that Norma and William Wilkins were not speaking as lawyers, but rather were speaking as parents to their adult or (in the case of Patsy) teenage children. It is important to bear in mind the language and context of the conversations. Further, in construing what was said by Norma Wilkins to the witnesses, it is important to bear in mind the circumstances which I have discussed when considering the probabilities and improbabilities of the conflicting accounts. In particular there was no reason why the plaintiff’s parents would have given the property to the plaintiff and Neil and not to any of the other siblings. All the circumstances of the transaction, and the terms in which Norma Wilkins advised her children, and Margaret Wilkins, of it, strongly support the proposition advanced by the defendant, that William Wilkins and Norma Wilkins intended to remain the beneficial owners of Killingworth.

I turn then to consider whether the evidence as to the acts and declarations of William and Norma Wilkins after the purchase of Killingworth should disturb or affect the conclusions which I have thus far reached. In my view that evidence does not support the proposition that, by their conduct after 1976, William and Norma Wilkins impliedly admitted that the plaintiff and Neil were the beneficial owners of Killingworth. Nor does the evidence support the proposition that the conduct of William and Norma Wilkins was such as to give rise to an inference that they were acting consistently with an earlier intention (in 1976) to invest the beneficial ownership of Killingworth in the plaintiff and Neil Wilkins.

Certainly the evidence supports a finding that after 1976 it was the plaintiff and Neil Wilkins who mainly used the Killingworth property. They conducted their joint farming enterprise there in which they purchased, fattened and later sold steers. However the evidence does not support the proposition that the plaintiff and Neil had the exclusive use of Killingworth. It was common ground that horses which belonged to the family horse syndicate were kept at the property. In addition, at least Geoffrey kept some of his own horses there. His evidence, which I accept, is that he had a number of horses, which he kept at the property until he moved them to his own farm in about 1983.

The evidence of Neil Wilkins, which I accept, is that the Killingworth and Ghin Ghin properties were used interchangeably for the purpose of grazing stock. Such an arrangement would of course be quite sensible. Neither properties were particularly large, and it would be practical and sensible for the stock to be rotated between the two properties in order to maximise their access to feed. That arrangement however does detract from the proposition that the plaintiff and Neil Wilkins had the exclusive use of Killingworth, so much so as to give rise to an inference that they were the beneficial owners of it. Rather, the picture which emerged from the evidence, particularly of Neil Wilkins, was of a family using the two family properties for their own purposes.

Although there is some evidence to the contrary, I do accept the evidence of the plaintiff that he and his brother Neil did most of the work on Killingworth. The plaintiff’s evidence is supported by the testimony of his wife Cheryl and his brother Geoffrey. I consider that Cheryl Wilkins was an honest witness. It is understandable that the plaintiff and Neil would have shared the major burden of the work to be carried out at Killingworth. It was there that they kept their stock. Further the plaintiff assumed responsibility for managing the horse syndicate, and, as I have stated, the horses belonging to that syndicate were mainly kept at Killingworth. However, I do not accept that only the plaintiff and Neil Wilkins worked at Killingworth. I accept the evidence of Neil Wilkins that other family members also helped there from time to time. At that stage the family was a harmonious unit and it was understandable that other members of the family would work there too. The fact that other members of the family worked at Killingworth does not logically contradict the proposition that the plaintiff and Neil Wilkins were the beneficial owners of it. However it does contradict the proposition that the plaintiff and Neil were the only people who worked at the property. The plaintiff has sought to make good that proposition in order to give rise to an inference that he and Neil were the owners of the property.

There was a lot of evidence about who paid the rates in respect of Killingworth. As I have stated it is common ground that rate notices for both Ghin Ghin and Killingworth were sent to Norma Wilkins’ house at Nicholson Street, Fitzroy. It is also common ground that on occasions Norma Wilkins would pay the rates herself in cash. However more often, particularly in her later years, the rates were not directly paid by Norma Wilkins, but, rather, were paid by one of her children using their cheque books. I accept the evidence – which was not really in contest – that during the period 1985 to 2003 it was Beverley and Ian Burgess who mainly paid the rates. On other occasions other children of Norma Wilkins paid the rates including Gary and Brian Wilkins. Each of them gave evidence, which I accept, and indeed which was not in contest, that Norma Wilkins then reimbursed them for the rates which they paid. As I have stated, Norma Wilkins had a large amount of cash at her home, which she used to reimburse the member of her family who paid the rates for Ghin Ghin and Killingworth.

The area of contest in the evidence concerns whether the plaintiff and Neil Wilkins, in turn, reimbursed their mother for the rates which she paid in respect of Killingworth. The plaintiff maintains that he did so. He said that while occasionally he would reimburse his mother by paying her cash, he largely did so by making an appropriate deduction from her account with the horse syndicate. The evidence was that the plaintiff bore the expenses incurred by the horse syndicate, and then periodically recouped from each member of the syndicate that member’s share of those expenses. The plaintiff states that when his mother paid the rates for Killingworth, or indeed when she paid any other expenses in respect of Killingworth, he would deduct that amount from the amount otherwise owing to him by his mother in respect of her membership of the horse syndicate. The plaintiff’s evidence was not entirely clear as to how Neil reimbursed his mother for his share of the rates paid by his mother. At one stage it seemed to be suggested in the plaintiff’s evidence that Neil’s share of the expenses of the horse syndicate was also adjusted to cater for that. On the other hand Neil Wilkins in his evidence was adamant that he did not pay or assume responsibility for the rates at Killingworth. He was cross-examined firmly on that topic by Mr Ridgeway but did not alter his position. The income tax returns of the plaintiff which were tendered in evidence indicated that the plaintiff claimed a half share of the rates as a deduction from the income which he and Neil Wilkins derived from their agricultural enterprise. It appears that the partnership accounts were prepared, until about 1980, by the plaintiff’s accountant, and from 1980 by Neil Wilkins’ accountant. Nevertheless Neil Wilkins adhered to his denial that at any time he paid, or reimbursed his mother for, a half share of the rates at Killingworth.

As I have already stated I was impressed with Neil Wilkins as a witness. I consider that he was witness of truth who had a good memory. His evidence relating to the rates is supported by the objective probabilities. If in fact the plaintiff and his brother Neil bore a responsibility for the rates at Killingworth, it makes little sense why the rate notices continued to be sent to Norma Wilkins’ property until her death in 2003. The plaintiff stated that he was remiss in not redirecting the rate notices to himself. However the objective probabilities strongly support the evidence given by Neil Wilkins in this regard. If the plaintiff’s evidence is to be accepted on this aspect of the case, then the parties adopted a most cumbersome and unusual method of paying the rates. As I have explained, that method involved a sibling paying the rates through the sibling’s cheque book, the mother reimbursing that sibling, and then, by an indirect means, the plaintiff reimbursing the mother. While logic does not always dictate what has happened in the past, nonetheless the inherent improbability of the account given by the plaintiff does affect the credibility of it. For those reasons I accept the evidence of Neil Wilkins that he and the plaintiff were not responsible for paying the rates of Killingworth, but, rather, that their mother Norma Wilkins assumed responsibility for that liability.

Another area of contention, in relation to the conduct of parties after 1976, concerned the issue as to who was responsible for the paying of expenses and other outgoings in relation to the Killingworth property. The plaintiff’s evidence was that during that period of time Neil and he shared the expenses including expenses relating to the construction of dams, fencing work, and the spreading of superphosphate. The plaintiff tendered in evidence a large bundle of invoices and other receipts (Exhibit P6), and relied on the claims which he made for expenses on his income tax returns. The plaintiff stated that from about 1996 Neil Wilkins was no longer involved in the Killingworth property although he still kept cattle there. From then on the plaintiff bore the expenses relating to the property himself. In 2003 major fencing work was undertaken at Killingworth and the plaintiff paid for that fencing himself.

On the other hand, Neil Wilkins’ evidence was that the plaintiff and he bore the expenses relating to their cattle farming operation including such items as the purchase of hay for the cattle. On the other hand, the other works, which Neil Wilkins described as “capital” works, which were carried out at Killingworth, were conducted at the expense of his parents. In particular he stated that his parents paid for such items as the purchase and spreading of superphosphate and for any other improvements on Killingworth.

The evidence on this aspect of the case is by no means clear. The large bundle of invoices produced by the plaintiff include a number of documents which relate to the horse syndicate operations rather than to expenses specifically related to the upkeep of Killingworth. The plaintiff himself did not give specific evidence about any of the items of expense contained in the exhibit. Rather the documents were simply tendered by the plaintiff in bulk. When some were put to Neil Wilkins in cross‑examination, he stated that the expenses referred to in those documents related to Ghin Ghin and not Killingworth.

The state of the evidence relating to the payment of expenses at Killingworth is of such a vague and indeterminate nature that I am unable to sensibly make any finding in relation to them. Certainly, I am unable to make a positive finding that the plaintiff and Neil Wilkins bore the burden of those expenses. The plaintiff has sought to prove that he and Neil Wilkins bore sole responsibility for the expenses, in order to use such evidence to support the proposition that he and Neil Wilkins were beneficial owners of the property. However as I have stated I am not able to make any such finding given the state of the evidence which was adduced before me.

Thus for the reasons which I have set out above I do not consider that the evidence relating to the conduct of Norma and William Wilkins after the purchase of Killingworth in 1976 gives rise to an inference that they recognised or implicitly admitted that, when the purchased Killingworth, they had given their beneficial interest in that property to the plaintiff and Neil Wilkins. As I set out above the evidence tends in both directions. In particular the evidence that Norma Wilkins took responsibility for the payments of the rates of Killingworth militates against any inference that Norma and William Wilkins impliedly admitted or recognised that they had made any such gift of Killingworth to their sons.

In the course of cross‑examination and argument a number of other factors were identified by counsel on each side relating to the conduct of Norma and William Wilkins after 1976. I do not consider that those matters add anything to the conclusion which I have just expressed. In short the matters which were adverted to were as follows:

(1)On behalf of the plaintiff it was pointed out that Killingworth was not included in the inventory of the estate of Norma Wilkins by the defendant, nor in the estate of William Wilkins by Norma Wilkins, who was apparently his executrix. The defendant gave evidence, which I accept, that he acted on legal advice in not including Killingworth in the inventory of assets which was annexed to the affidavit which he swore in support of the application for probate. It is noteworthy that he also did not include in it the loan which he later acknowledged he had received from his mother, and in respect of which he was indebted to the estate.
(2)In 2000 Neil Wilkins proposed to sell Killingworth. At first the plaintiff agreed, albeit in the course of a heated argument with Neil. Shortly thereafter he resiled from that point of view. In the meantime Norma Wilkins learnt of the argument, and put an end to it by declaring that the property was hers and that she would receive all the proceeds of sale. That evidence could not be used for the truth of the statement made by Mrs Wilkins. Arguably it consisted of an assertion of ownership by Mrs Wilkins which is inconsistent with any proposition that, from 1976 until the date of her death, she recognised that the property was her sons’. In that respect the evidence is of little weight. The statement made by Mrs Wilkins was long after the event. She may have simply acted as a wise parent, who saw such a declaration as a quick and effective means of putting an end to the dispute which had erupted between the plaintiff and Neil Wilkins.
(3)I have already adverted to evidence given by witnesses called for the defendant that, in the last few years of her life, when Norma Wilkins took ill and was taken to hospital, she often declared that she wanted to alter her will to include Killingworth as part of her estate. Evidence to that effect was given by Gary Wilkins, Margaret Wilkins, Beverley Burgess, Patsy Wigham and Brian Wilkins. Again that evidence was not admitted for the truth of the statements made by Mrs Wilkins. Furthermore, the evidence was somewhat equivocal. It is quite possible that Norma Wilkins was simply declaring that she needed to alter the provisions made in her will, to cater for the fact that two of her sons had already received generous provision during their lifetimes. In any event, the statements made by Mrs Wilkins occurred a long time after the purchase of the property, and are of little if any relevance.

In conclusion then I do not consider that the evidence as to the conduct and declarations of William and Norma Wilkins, in the years that followed the purchase of Killingworth, disturbs the conclusion which I expressed earlier in these reasons, namely, that I am satisfied on the balance of probabilities that Norma and William Wilkins intended that the plaintiff and Neil Wilkins hold the beneficial interest in Killingworth on trust for them. Accordingly it follows that the plaintiff’s claim for a declaration that his half interest in Killingworth does not form part of the estate of Norma Wilkins must fail.

Before I pass from that aspect of the case, and for the purpose of completeness, I should note that at a very late stage in the proceeding, after the close of evidence and after the commencement of final address by Mr Carew, Mr Ridgeway sought leave to further amend the reply and amended defence to counterclaim delivered on behalf of the plaintiff. I allowed two of the amendments sought by Mr Ridgeway. A third amendment sought by Mr Ridgeway, namely to include a plea of estoppel, was opposed by Mr Carew. I deferred ruling on that proposed amendment, pending explanation by Mr Ridgeway, in his final address, of the basis of the estoppel which he sought to plead. Ultimately I refused the plaintiff leave to amend his pleading to include such a plea. I did so for reasons which I set out in a brief ruling which I made at that time. In particular I ruled that if I were to allow the amendment the defendant would suffer irreparable prejudice. Further I considered that the proposed plea of estoppel was in any event hopeless. Essentially the proposed plea was based on the proposition that William and Norma Wilkins did not inform the plaintiff that the property was held by him on trust for themselves. It was sought to be pleaded that both parents stood by while the plaintiff worked and expended moneys on the property without informing him that he held his share of the property on resulting trust for his parents. I considered that the proposed plea was hopeless because, if I concluded (which I now have) that William and Norma Wilkins told the siblings of the plaintiff that the property had been put in the names of the plaintiff and Neil Wilkins to hold on trust for the parents, it was inconceivable that the parents would not have told the plaintiff of the existence of that trust. I have now come to the conclusion that the parents did tell the siblings of the plaintiff that the property was held on trust for themselves. In particular they told Neil Wilkins of that fact. In those circumstances it is entirely inconceivable that they would have concealed that fact from the plaintiff. They had no reason for doing so. Throughout their lives they maintained a good relationship with the plaintiff. In those circumstances I infer on the balance of probabilities that they did make statements to the plaintiff to similar effect to those which I have accepted were made to his siblings and to the wife of the defendant. It follows that if I had allowed the amendment to include the plea of estoppel, it would have failed.

One of the two amendments which I allowed the plaintiff to make to his reply and amended defence to counterclaim, consisted of a plea that if William and Norma Wilkins had declared that the Killingworth property be held on trust for themselves, that trust was unenforceable because it was not evidenced in writing as required by s.53 of the Property Law Act1958 (Vic) and s.126 of the Instruments Act 1958 (Vic). Understandably that plea was abandoned by Mr Ridgeway in final address, and correctly so. Section 53(2) of the Property Law Act states that s.53 does not affect the creation or operation of resulting, implied or constructive trusts. There is abundant authority for the proposition that the trust, relied on by the defendant in this case, is a resulting trust.[20] Thus it is well established that statutory provisions such as s.53 of the Property Law Act, and s.126 of the Instruments Act, do not apply to such trusts.[21]
[20]See for example Davies v The National Trustees Executors and Agency Co of Australasia Limited (above) at 401-402 (Cussen, J); Martin v Martin (above) at 305.
[21]See for example Nelson v Nelson (above) at 547-548 (Deane and Gummow, JJ).

Breach of Executors’ Duties

I turn then to the second cause of action relied on by the plaintiff. That cause of action underwent a series of changes and mutations in the course of the trial. Indeed at different times in the trial it was difficult to perceive precisely what was the nature of the claim made by the plaintiff. In its final form, as described by Mr Ridgeway in his final address, it was articulated as follows. It was alleged that the defendant had a duty to issue proceedings in this Court in order to resolve the issue as to who was the beneficial owner of Killingworth. The defendant breached those duties in failing to issue such proceedings. If (as I have now found) the plaintiff was not the beneficial owner of a joint interest in Killingworth, the defendant was not entitled to distribute the share of the plaintiff in the estate in specie by appropriating the equitable interest in a half share of Killingworth to him. It was submitted that the defendant ought to have distributed the value of the estate, less the value of Killingworth ($285,000) to each of the seven beneficiaries equally. If the defendant had done so the plaintiff would have received the sum of $104,680 in September 2005. As a consequence, it is claimed, the plaintiff has suffered damages consisting of the loss of use of that sum from September 2005 until the present date.

There are I consider a number of flaws in the cause of action as thus defined by Mr Ridgeway. First, I do not consider that the defendant was under a duty to issue proceedings to resolve the issue of the beneficial ownership of Killingworth. The plaintiff did not produce any authority which satisfies me that an executor, in the position of the defendant, would be in breach of his duties if he did not issue such proceedings. Mr Ridgeway referred me to a number of authorities.[22] None of those authorities are on point, and none of them give any support to the proposition advanced by Mr Ridgeway.
[22]Sharpe and anor v Forbath [2000] VSC 282; Skaftouros and ors v Dimos [2002] VSC 198; Lester and anor v Lester [2000] VSC 184; Morgan v Morgan [2000] VSC 445; Gentsis v Forty First Advocate Management Pty Ltd [2004] VSC 398.

Mr Ridgeway relied on some correspondence from the solicitors for the defendant to the plaintiff in 2004 in which the solicitors indicated that they would issue proceedings to resolve the question of the beneficial ownership of Killingworth. However in cross‑examination the defendant explained why those proceedings were not issued. In May 2005 the plaintiff’s then solicitors wrote a letter to the defendant’s solicitors indicating that they intended to commence proceedings on behalf of the plaintiff under Part 4 of the Administration and Probate Act. Such proceedings were not issued for the plaintiff. Thus it was assumed that the plaintiff had abandoned his claim to ownership of Killingworth. The defendant received legal advice, and accordingly proceeded to distribute the estate, in part in specie, in September 2005.

In those circumstances I do not consider that it was a breach of duty of the defendant as executor not to have issued proceedings to resolve the question as to the ownership of Killingworth. It might have been prudent and preferable for him to do so. Certainly in the circumstances which ensued it would have been better had he done so. However I do not consider that the failure of the defendant to issue such proceedings constituted a breach by him of his duties as executor.

On the other hand I do consider that the defendant did not have the power to appropriate a half interest in Killingworth to the share of the plaintiff in the estate of Norma Wilkins under s.46(1)(b)(i) of the Administration and Probate Act 1958 (Vic) or s.31 of the Trustee Act 1958 (Vic) without the consent of the plaintiff as beneficiary.[23] The plaintiff did not consent to the appropriation which the defendant purported to make of the one half interest in Killingworth to the entitlement of the plaintiff to a one-seventh share of the estate. Accordingly the defendant was not entitled to appropriate a half interest in the Killingworth property to the plaintiff as he purported to do in September 2005.
[23]See Long v Comptroller of Stamps [1964] VR 796 at 801 (Adam J).

However it is at the next step that the argument of the plaintiff fails. The plaintiff has not established that, if the defendant had not distributed the estate in the manner he adopted in September 2005, he would or should have distributed it in the manner now contended for by the plaintiff, namely, by distributing the balance of the estate, without taking into account Killingworth. In my view it is most unlikely that the defendant would have followed that course. If the defendant had distributed to the plaintiff a sum of $104,680, without first obtaining from the plaintiff a transfer of the legal interest in Killingworth, he would have been acting most imprudently and arguably in breach of his duties to the estate. For, he would have then been distributing a sizeable legacy to a beneficiary, who had yet to account to the estate for a significant asset held by that beneficiary on behalf of the estate. In those circumstances I consider it most unlikely that the defendant would have made the distribution contended for by the plaintiff, if the defendant had not purported to act as he did in September 2005. Accordingly, I do not accept the proposition that if the defendant had acted pursuant to his duties in September 2005, he would have distributed to the plaintiff the sum of $104,680 as contended by the plaintiff. It therefore follows that the plaintiff’s claim for damages arising out of the attempted distribution in specie by the defendant must fail.

Moreover, if, contrary to the foregoing, the defendant should have distributed $104,680 to the plaintiff in September 2005, the plaintiff has not adduced any evidence to establish that he suffered damage entitling him to an award of damages of the type described by the High Court in Hungerfords v Walker.[24] Furthermore, by a contract of sale dated 21 January 2007, the plaintiff has purported to sell his half interest in Killingworth to his wife Cheryl. She became registered as a tenant in common of the land on 2 February 2007. At that time the plaintiff held that half interest on trust for the estate. By selling and transferring it to his wife, he has acted in breach of his duties as trustee. Consequently the defendant would be entitled to damages from the plaintiff consisting of one half of the value of the property, namely $142,500. In final address Mr Carew submitted that if the plaintiff did succeed in his second cause of action, then against any such damages there should be set off the claim by the defendant for damages arising out of the disposal by the plaintiff of the legal interest in one half of Killingworth to Cheryl Wilkins.
[24](1989) 171 CLR 125.

Thus the conclusions which I have reached on the second cause of action relied on by the plaintiff may be summarised as follows. The defendant was not entitled to appropriate, in part satisfaction of the plaintiff’s share in the estate of Norma Wilkins, a one half interest in Killingworth. However, the plaintiff has not made out his claim for damages arising from the distribution which was made to him on 13 September 2005. On the other hand, if the appropriation were declared to be invalid, then the defendant would succeed in the claim made by him on the counterclaim for equitable damages, totalling $142.500, arising from the disposal by the plaintiff of the joint interest in Killingworth which the plaintiff held on a resulting trust for the estate.

The question which then arises is what relief, if any, I should grant to two parties arising from the foregoing conclusions. Prima facie, the appropriation being invalid, the plaintiff would be entitled to a declaration in the terms claimed in paragraph B of the prayer for relief in the statement of claim, namely a declaration that the plaintiff is entitled to the interest given to him in the will of Norma Wilkins without deduction. However, if I granted such a declaration, the plaintiff would be liable to the defendant for equitable damages amounting to $142,500. Indeed, Mr Ridgeway did not make any submission that the defendant would not be entitled to such compensation, if I were to find (as I have) that the plaintiff held his joint interest in Killingworth on a resulting trust for the estate of Norma Wilkins.

Consequently, if I were to grant relief, the result would be that the plaintiff would be entitled to his share in the estate without deduction, but he would equally be liable to the defendant for damages which would equate to the value of the deduction made from the distribution to him on 13 September 2005. Mr Carew, recognising the reality of the situation, submitted that, in those circumstances, the practical and appropriate remedy would be, in effect, to “offset” any entitlement which the plaintiff may have to the estate against the equitable compensation to which the defendant is entitled arising out of the breach by the plaintiff of his duties under the resulting trust.

It has long been recognised that the remedies afforded by equity are essentially discretionary and flexible. Where a court exercises equitable jurisdiction, the relief which it grants is moulded to achieve what the Court considers to be “practically just” according to the circumstances of the particular case.[25]
[25]Spence v Crawford [1939] 3 All ER 271 at 288 (Lord Wright); Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102 at 111-114; Bridgewater and ors v Leahy and ors (1998) 194 CLR 457 at 473 (Gleeson CJ and Callinan J), 493-4 (Gaudron, Gummow and Kirby JJ).

I have found that the defendant was not entitled to have appropriated a joint interest in the Killingworth property to the share of the plaintiff in the estate. However, having initially rejected the appropriation, the plaintiff subsequently disposed of the equitable interest of the joint interest held by him in Killingworth. He is not in a position to restore it to the estate. He is therefore liable to the estate for damages, which are equivalent to the amount which was deducted from his share in the estate pursuant to the appropriation made by the defendant in September 2005. Thus the relief sought by the plaintiff is matched by the relief sought by the defendant. There would be no practical utility, and considerable disadvantage to both parties, should I make matching orders declaring the appropriation of 13 September 2005 to be invalid, and requiring the plaintiff to pay to the defendant equitable damages which are identical to the amount of the appropriation. Exercising the practical flexibility afforded to me by the principles of equity, it follows, in my view, that it is appropriate, in those circumstances, that I decline to make the declarations sought by the plaintiff, and, at the same time, do not order equitable damages against the plaintiff as sought by the defendant in his counterclaim.

Conclusion

Accordingly I have reached the following principal conclusions in this case:

(1)Before 13 September 2005 (the date on which the defendant distributed part of the estate of Norma Wilkins) the plaintiff and Neil William Wilkins held their interest as legal proprietors of the property known as Killingworth on a resulting trust for the estate of Norma Patricia Wilkins.
(2)The defendant was not entitled to appropriate a one half interest in Killingworth to the plaintiff in part satisfaction of his share in the estate of Norma Wilkins. However, the plaintiff is liable to the defendant for the value of that one half interest in Killingworth which, in January 2007, he disposed of to Cheryl Wilkins. It would be of no utility to the parties for me to declare that the appropriation made by the defendant was invalid, and to order the plaintiff to account to the defendant to the value of the one half interest received by him in Killingworth.
(3)Accordingly the plaintiff is not entitled to the relief sought by him in the amended statement of claim.
(4)In the exercise of the court’s equitable jurisdiction, it is appropriate that I make the declaration, sought on the counterclaim, that before the appropriation, the plaintiff and Neil Wilkins held Killingworth on a resulting trust for the estate of Norma Wilkins, and also a declaration that the appropriation by the defendant of a one‑half interest in the property to the plaintiff on 13 September 2005 should stand as part satisfaction of his entitlement under the will of Norma Wilkins.

Remedies

Accordingly, and subject to hearing from counsel as to the precise terminology of the orders, I propose granting the following relief in this matter:

(1)The claims made by the plaintiff in the amended statement of claim be dismissed and there be judgment for the defendant on the amended statement of claim.
(2)I make the following declarations on the counterclaim by the defendant:
(a)I declare that before the interim distribution of the estate of Norma Patricia Wilkins on 13 September 2005, the plaintiff and Neil William Wilkins held the property at 163 McLeish’s Road, Yea, known as “Killingworth”, on a resulting trust for the estate of Norma Patricia Wilkins;
(b)I declare that the appropriation on 13 September 2005 by the defendant, as executor of the will of the estate of Norma Patricia Wilkins, of a one half share in the legal and beneficial interest of the said Killingworth property to the plaintiff, stand as part satisfaction, to the value of $142,500, of the share of the plaintiff in the estate of Norma Patricia Wilkins in accordance with the terms of her will dated 22 December 1972.

I shall hear counsel on the question of costs.

---

[2007] VSC 100

12 April 2007