BROWNE -v- BROWNE [No 2] [2017] WASC 375 (21 December 2017)

4 In 1974, a partnership was constituted between Mr and Mrs Browne and their two older sons, Steven and Paul which traded as E & M Browne and Sons. The partnership agreement was made by a formal instrument which provided for the partnership to farm over all the lands owned by Mr Browne at a nominal rent.

5 At the end of 1975, Steven commenced fulltime work in the farming partnership after completing one year of a university course at Murdoch University. He farmed all of the partnership lands, including but not limited to Burracoorong. By the late 1970s, as well as doing manual farm work, Steven played a central role in the management of the farming partnership including doing the accounts.

6 Steven met his future wife Shelley in 1983 and they married in March 1985. They initially lived in a donga on Yargalain. Steven and Shelley had four children, Dale in 1986, Trent in 1988, Rhys in 1990 and Lauren in 1992.

7 In 1988, Steven and Shelley began building their family home on Burracoorong. Until that time all habitable accommodation was on Yargalain. Although the reasons for Steven and Shelley building their home on Burracoorong are subject of dispute, it is not in dispute that Mr Browne told Steven and Shelley to build their home on Burracoorong and that Steven and Shelley subsequently did so.

8 By the mid1990s, the farming partnership farmed the following lands owned by the following entities or persons:

(a) Burracoorong owned personally by Mr Browne and comprised 1,375.4 ha (3,398 acres);

(b) Yargalain which included the Army blocks and Yargalain owned personally by Mr Browne and comprised 1,547 ha (3,821 acres);

(c) Yarrawindah owned by Menari Pty Ltd and comprised 752 ha (1,857 acres) (recorded in the books as purchased by the partnership: exhibit A, 26); and

(d) Glenalan owned by Ulinda Pty Ltd and comprised 403 ha (995 acres) (recorded in the books as purchased by the partnership: exhibit A, 28).

9 Mr and Mrs Browne are the owners of the shareholding in Menari Pty Ltd; as trustee for the Edward Browne Family Trust: exhibit A, 36. From 1993 to 2003, Mr Browne was a 20% shareholder of Ulinda Pty Ltd together with Mrs Browne who held 20%, Steven who held 20%, Peter who held 20% and Paul who held 20%. From 2003, Mr Browne has held 40% of Ulinda Pty Ltd together with Mrs Browne who also holds 40% and Steven holds 20%.

10 There were various changes to the membership of the partnership over time. By the mid1990s the partners in the farming partnership were Mr Browne, Mrs Browne, Steven, Paul and Peter. Michael rejoined as a partner in 1997. From 1997, until early 1999, Mr Browne, Mrs Browne and all four brothers were partners in the farming partnership.

11 From the mid1990s until at least the beginning of 1999, Mr and Mrs Browne and their four sons discussed arrangements for the future. Those discussions included, but were not limited to:

(a) the retirement of Mr and Mrs Browne and accommodation and financial support for them in their retirement;

(b) the concern that the joint farming enterprise could not support four families;

(c) the structure and ownership of the partnership assets and the farmlands; and

(d) whether the sons would continue to farm together as a partnership or whether they would farm independently by splitting the land for each to farm separately and how that would be done.

12 By the end of 1997, the partnership had borrowed funds to purchase a retirement home for Mr and Mrs Browne in Sorrento (sometimes referred to as the home in Hillarys).

13 By early 1999, an agreement was reached between Mr and Mrs Browne and each of the sons to end the partnership. It is not in dispute that it was agreed to split the assets of the partnership between the four sons. Mr Browne remained the owner of the land of the partnership. He and Mrs Browne retired from the partnership and other than the land, gifted their share of the partnership assets to their sons. Steven obtained a larger share in recognition of the length of time he had spent as a partner. Peter and Paul obtained an equal share and Michael received a lesser share.

14 From 1 February 1999, it is not in dispute that the following arrangements were put in place:

(a) The brothers' respective equities in the former partnership were Steven (36%), Paul (24%), Michael (16%) and Peter (24%).

(b) Each of the sons was to farm independently on the lands allocated to them. Steven was allocated initially all of Burracoorong, except one paddock (3,206 acres or 32% of the land). Paul was allocated Yarrawindah and the Army Blocks (2,649 acres or 26% of the land). Michael was allocated Glenalan and the 521 (part of Yargalain) acres (1,686 acres or 17% of the land). Peter was allocated the remainder of Yargalain and one paddock of Burracoorong (2,509 acres or 25% of the land).

(c) Each of the sons assumed an equal 25% of the debt assumed by the partnership for the purchase of the Sorrento home for Mr and Mrs Browne.

(d) Peter and Steven were to each pay $16,000 per annum to Mr Browne; and Michael and Paul were to each pay $16,000 per annum to Mrs Browne. In December 1999, following advice from accountant Alan Crawford, it was agreed that the amount should be $18,000 per annum (exhibit A, 330). (One of the central issues in dispute is whether the annual amounts paid by each of the sons was an annuity or whether they were repayments for rent for the use of the land. It is, however, agreed that the annual payments were to be made to Mr and Mrs Browne until both of them died).

(e) Each son assumed liability for their share of the partnership debt. At the time of the split of the partnership, the combined value of the assets of the partnership, including sheep, were estimated to be valued at $3,109, 988 and the partnership debt was $750,000.

(f) Steven and Peter were to share the use of the infrastructure on Yargalain that did not exist on Burracoorong.

(g) All four sons continued to use the partnership funding facility for their farming businesses which was maintained by Mr Browne until early 2003.

15 For the first year after the split Peter farmed one paddock on Burracoorong. It appears Steven complained to his father about this sometime prior to 12 March 1999. At a family meeting on 12 March 1999 attended by Ken Sevenson, a farming consultant, it was agreed that the paddock farmed by Peter be given to Steven: exhibit A, 171. Consequently from the end of 1999, or at least by the beginning of 2000, Steven farmed the whole of Burracoorong independently, being approximately 34% of the land formerly farmed by the partnership.

16 While specific promises made by Mr Browne to Steven about the transfer of the land at Burracoorong to Steven are in dispute, it is not in dispute that, at least from the time family meetings commenced about discussions to end the farming partnership, Mr Browne said to each of the sons on a number of occasions that the land on which they farmed would be transferred to them by will.

17 Shortly after the split of the partnership in 1999, Steven commenced works on Burracoorong to improve it. These works have continued until 2017. I accept that this work was undertaken as contemporaneous diary notes and financial records of the work undertaken were kept by Steven. Attachment A to this judgment contains a list of the development work carried out by Steven.

18 The partnership increased the Rabobank debt to $850,000 on 30 April 1999. This was an increase of $100,000 to enable each of the brothers to farm separately: exhibit A, 201 206.

19 The final accounts for the partnership were issued on 30 June 1999: exhibit A, 236 306.

20 Between 2002 and 2007, Peter and Steven purchased together and shared the use of machinery.

21 In 2002, Peter and Steven discussed increasing their economy of scale by buying another property that would help them to get ahead. Steven became aware of a farming property nearby that was for sale. The property was the property known as Moganmoganing. Peter and his wife, Catherine and Burracoorong Pty Ltd (the trustee company of the Steven Browne Family Trust, of which Shelley and Steven are shareholders) purchased the property as tenants in common. In total Moganmoganing is about 800 ha. To purchase the property both Steven and Peter borrowed $400,000 each. At that point in time Peter, Paul, Michael and Mr Browne agreed to split the former partnership loan account into four individual accounts because the extra borrowings that Peter and Steven wished to incur to purchase Moganmoganing was too high to ask the other brothers to be ultimately liable for.

22 On 24 December 2002, Steven and Shelley obtained a separate loan for $650,000 with Burracoorong as security. Of that amount $400,000 was used to purchase Moganmoganing and the remainder was applied to Steven's share of the partnership loan. Steven's share of the $850,000 partnership debt was $270,000: exhibit 26 [111]; exhibit A, 578 580. On the same day Mr Browne executed a deed of guarantee securing the loan over Burracoorong: exhibit A, 724.

23 Until shortly before Christmas 2009, Mr Browne worked for Steven without payment. As a result of an altercation between Steven and Mr Browne, at that time, Mr Browne ceased working for Steven and their relationship became strained.

24 On 23 March 2010, Steven and Shelley obtained a second loan facility for the amount of $400,000, with Mr Browne making Burracoorong available as security.

25 In April 2013, Steven considered buying Peter's half share in Moganmoganing. When he discussed the matter with Mr Browne, Mr Browne told him he would agree to increase the loan facility on Burracoorong to enable Steven to buy Peter's half of Moganmoganing, if Steven agreed to increase the annual payments Steven paid from $16,000 to $34,000 per year. Steven was unable to reach an agreement with Peter, the sale did not proceed and Steven did increase the annual payments made to his father.

26 In the split of the partnership, Paul was given Yarrawindah and the Army Blocks to farm. By 2011, Paul was unable to obtain further finance from Rabobank having incurred a debt ratio of 60%. Mr Browne approached Michael and asked him whether he wished to purchase Yarrawindah. Michael agreed. Yarrawindah was owned by Menari Pty Ltd, as trustee for the Edward Browne Family Trust. The sale led to litigation between Menari and Paul. After the dispute was settled, Mr Browne's solicitors suggested to Mr Browne that they try and prevent a similar dispute by giving his sons leases to sign.

27 In early August 2013, Steven received a letter from Mr Browne's solicitors, Borrello Legal, attaching a draft lease to sign. The draft lease contained among other conditions, a base rent of $34,000 per annum, payable by biannual instalments of $17,000 each, on 1 July and 1 January during the term of the lease, which was said to commence on 1 July 2013. The draft lease also provided:

(a) for a term of 10 years with an option for a further term of 10 years: cl 2.3 and item 5 of sch 1;

(b) for termination and an obligation to Steven to yield up the premises and return all keys of the premises to Mr Browne upon expiry or termination of the lease: cl 14.1 and cl 14.2;

(c) a reservation to Mr Browne of his right to sell Burracoorong, to any prospective purchaser, or lease it to any prospective new tenant: cl 2.2(b);

(d) that the lease superseded any existing arrangement between Steven and Mr Browne: Special Condition 1, sch 2; and

(e) the house and a large shed erected on the property were stated to be fixtures and were not able to be removed from Burracoorong: Special Condition 5, sch 2 exhibit A, 2385A, 2386 2412A.

28 On 12 August 2013, Steven received a letter dated 2 August 2013, from Borrello Legal, stating among other matters that Mr Browne was concerned that the animosity that had developed between him (Steven) and Peter, was such that Mr Browne considers Steven's relationship with him (Mr Browne) and Peter has deteriorated to such an extent that the exercise of the rights of access to Yargalain had become untenable and can no longer continue. The letter contained a demand that, within 10 calendar days of the date of the letter, Steven was to cease accessing Yargalain and to remove four silos, a sea container and a fuel tank and tools in the bottom shed from Yargalain. The letter also stated that, should Steven refuse or fail to accede to the demands, Mr Browne may exercise his rights at law which may include laying criminal charges of trespass and installing gates or bollards to prevent access along the existing laneway traversing Yargalain: exhibit A, 2384 2385.

29 On 12 November 2013, Mr Browne sent a letter by facsimile to Rabobank informing the bank from this date forthwith he wished to withdraw any further support for Steven and Shelley's indebtedness and required the bank to make arrangements with Steven and Shelley to remove the mortgage over Burracoorong and for Steven and Shelley to secure their indebtedness to the bank over properties held in their names: exhibit A, 2491.

30 On 14 November 2013, Rabobank sent a letter to Mr Browne advising that effective immediately a restriction had been placed on all accounts in the name of Steven and Shelley and that no transactions could take place, including use of internet banking and cheques: exhibit A, 2494.

31 It appears that by 20 November 2013, Mr Browne had a change of heart and on that day, on the instructions of Mr Browne, Borrello Legal sent a memorandum by facsimile to Rabobank informing it that it was never Mr Browne's intention that Rabobank should immediately restrict all access to funds to the borrowers and that until further notice Mr Browne wished for Rabobank to withdraw the restrictions and to reinstate the borrowers access. The memorandum also stated that Mr Browne would continue to honour his commitments under the current funding arrangements, inclusive of the mortgage: exhibit A, 2586.

32 Rabobank required Mr Browne to sign a deed of acknowledgement before it would withdraw the restrictions and reinstate the borrowers' access. Mr Browne's solicitors were informed of this on Friday, 22 November 2013.

33 On 23 November 2013, Steven and Shelley visited Mr and Mrs Browne at their retirement unit in Hillarys. By this point in time, Steven and Shelley's borrowings secured by Burracoorong amounted to $1,025,000 and the loan facility totalling this amount is due to expire on 2 January 2018.

34 On Monday, 25 November 2013, Mr Browne signed a deed of acknowledgement to Mr Browne's solicitors and sent it to Rabobank. In an email attaching the deed, Mr Browne's solicitor stated that:

... I confirm my client's wishes that no further extensions of the existing Facility limit be made in favour of the Borrowers, and that if they require further funding over and above the existing Facility limit (which we understand is at $1,025,000.00 that they should secure that additional funding against their own property, in respect of which we understand that they have a half interest in the property known as 'Mogomoganing'. We understand that you will take this into account if you are approached by the Borrowers in that regard (exhibit 1, 2589).

35 Steven and Shelley's access to funds were then reinstated by Rabobank.

36 Mr Browne subsequently gave the Army Blocks to Peter to use (this was land formerly allocated to Paul). Peter entered into a lease for Yargalain which provided he pay $26,000 per annum to Mr Browne and $18,000 per annum to Mrs Browne for the Army Blocks. After Steven declined to sign a lease, Mr Browne told Michael not to worry about (signing a lease): exhibit 16 [148].

37 As a result of Steven being denied access to the infrastructure on Yargalain, Steven constructed a fertiliser shed and a shearing shed and sheep yard complex. Prior to the shearing shed being completed in 2016, Steven made arrangements with an adjoining farmer to use shearing shed facilities on another property.

38 On or about 1 June 2017, Mr Browne refused to continue to guarantee Steven's borrowings secured on Burracoorong beyond the date of expiry of the current facility (2 January 2018).

39 On 26 June 2017, Steven filed a writ of summons to commence this action.

40 By letter dated 4 August 2017 from Borrello Legal, Mr Browne demanded that an increase of rental payments of $34,000 per annum from 1 July 2013 was owing. The letter also made a demand of increased rent from Steven of $61,000 per annum from 1 July 2017 (being $18 an acre). A demand was also made of immediate payment of $64,000 by 11 August 2017, and reserved Mr Browne's right to commence proceedings for payment of arrears and to evict Steven from Burracoorong if Steven did not pay the sum of $64,000 (being the amount the subject of Mr Browne's counterclaim) by 11 August 2017: exhibit A, 3349 3350.

41 On the same day, Mr Browne executed a will in which Steven's entitlement to Burracoorong, via testamentary trust, was conditional upon and subject to:

(a) payment of an increase in rent from 1 July 2013 until 30 June 2016, in the sum of $34,000 per annum;

(b) payment of increased rent from 1 July 2017, in the sum of $61,000 per annum;

(c) continued payment to Mrs Browne during her life of any sum Steven was obliged to pay Mr Browne, had Mr Browne lived, in the same amount at the same time and in the same manner as Steven had been paying Mr Browne, immediately before the date of Mr Browne's death;

(d) payment to the estate of any rental debt deemed owed by Mr Browne; and

(e) payment of $300,000 to each of Steven's sisters, namely Kathryn, Anne, Claire and Carmel (totalling $1.2 million).

42 Furthermore, the 4 August 2017 will is subject to revocation or alteration by Mr Browne at any time and manifests an express intention to modify its terms so as to penalise his sons if any of them fail to honour and respect Mr Browne's wishes during his lifetime, or cause him any undue hardship or distress: exhibit A, 3322 3348.

43 On 10 August 2017, Mr Browne executed a new will containing the same conditional gift to Steven as the 4 August 2017 will: exhibit 23.

(a) an order allowing Steven to file a reamended statement of claim by 1 November 2017;

(b) an order allowing Mr Browne to file a reamended defence and counterclaim by close of business, 2 November 2017; and

(c) a consequential order allowing Steven to file an amended reply and defence to counterclaim by 2.00 pm, 3 November 2017.

45 The amendments sought by Mr Browne to the defence and counterclaim were amendments to his counterclaim only. After counsel for the parties conferred, Steven did not oppose the order sought by Mr Browne.

46 Mr Browne opposed Steven's application to reamend the statement of claim and made an application for an adjournment of the trial, if an amendment was allowed to provide for a new [26] that pleaded that, on 12 December 2013 and 20 February 2015, Mr Browne facilitated the development and construction work on Burracoorong by signing development applications submitted to the Shire of Chittering. A submission was made that if this amendment were allowed, the trial commencing 6 November 2017 should be adjourned to allow Mr Browne to obtain expert evidence to support a claim made by him that the signatures on the development applications, that appeared to be Mr Browne's, were in fact forgeries.

47 I was not satisfied that the amendment sought to [26] of the amended statement of claim took Mr Browne by surprise as affidavit evidence was before me that Mr Browne had notice of the facts, the subject of the amendments since 5 October 2017, and they had been raised specifically in particulars provided to Mr Browne's solicitors by Steven's solicitors on 11 October 2017. Consequently I was of the view that any prejudice that was raised in relation to the late notice of this proposed amendment was of Mr Browne's own making. I also took into account that at 31 October 2017, no steps had been taken to ascertain whether it would be possible to adduce expert evidence about handwriting on the disputed documents in the trial of this matter.

48 An amendment to [20(a)] of the amended statement of claim was opposed on grounds the matters pleaded constituted a new case by raising Steven's entitlements as a partner with his father and brothers in farming all of the land owned by Mr Browne, Menari and Ulinda. After hearing from counsel, an amendment to this paragraph was made which could not be said to be controversial. An uncontroversial amendment was also made to [20(h)] of the amended statement of claim.

49 Other amendments to the amended statement of claim were opposed on grounds that the new factual allegations were raised after the evidence was filed and the case was prepared.

50 After the amendments to [20(a)] and [20(h)] were made I allowed all of the amendments sought by Steven to the amended statement of claim. I was of the opinion that the amendments sought to be pleaded should not take the defendant by surprise. In particular, with the exception of proposed [34] and [35], I was of the opinion that nothing new was pleaded and that the amendments sought were simply a refinement of Steven's case.

51 The amendments sought to [34] and [35] of the amended statement of claim, did however raise a new discreet issue. However, the issue raised is about the terms of a will executed by Mr Browne on 4 August 2017. As it was clear that the disposition of these amendments would turn only on the express terms of the document pleaded to be a will and did not raise any issue going to the circumstances of the making of the will, I allowed those amendments to the amended statement of claim.

Objections to matters stated in witness statements

52 At the commencement of the trial, counsel for Mr Browne, provided to the court a schedule containing a substantial number of objections to more than 70 paragraphs of the plaintiff's witness statements. Senior counsel for Steven provided a much smaller list of objections to material contained within the witness statements filed on behalf of Mr Browne.

53 After hearing from counsel, I formed the opinion that it was not necessary to deal with each one of the objections, one by one. Having read each one of the witness statements it appeared that there was a substantial amount of irrelevant material in the witness statements filed not only on behalf of Steven but also in the witness statements filed on behalf of Mr Browne. Thus, I formed the opinion that it would not be necessary to deal with many of the objections as it would not be necessary for me to have regard to irrelevant matters contained within those paragraphs the subject of objections.

54 However, where objections have been made to the admissibility of evidence that are relevant to the disposition of the issues to be determined in this matter, I have made rulings as to whether those objections should be upheld and made findings as to whether that evidence is admissible.

55 Steven's claim is, that at various times between 1975 and 1999, Mr Browne promised him that he would gift Burracoorong to him before, or upon, Mr Browne's death and Mr Browne thereby induced an assumption by Steven to that effect.

56 By 1999, Steven claims Mr Browne had induced an assumption by Steven that:

(a) Mr Browne would gift the land that Steven farmed, namely Burracoorong to Steven before, or upon, Mr Browne's death;

(b) Steven could farm Burracoorong, henceforth independently, at his own expense; and

(c) Mr Browne would support Steven's farming by allowing access to infrastructure on Yargalain, and by facilitating Steven's borrowing by permitting the use of the partnership's existing funding facility.

57 Steven claims Mr Browne subsequently repeated the promise that he would gift Burracoorong to Steven before, or upon, Mr Browne's death, on a number of occasions between 2001 and 2013.

58 Until 20 February 2015, Mr Browne facilitated Steven's improvements to Burracoorong. Until 2013, Mr Browne made Burracoorong available to Steven (and Shelley) as security for borrowings for their farming operations.

59 In reliance upon the promises made to Steven, Steven (and Shelley):

(a) undertook extensive development and infrastructure work on Burracoorong;

(b) assumed and continued to service Steven's part of the partnership debt:

(c) continued to live on, devote their resources and farm Burracoorong independently at their own expense;

(f) have not invested money used in support of the farming operations on Burracoorong and Moganmoganing elsewhere;

(g) have not pursued a livelihood away from Burracoorong;

(h) encouraged and facilitated their son Dale to devote his career, efforts and resources to the farm operations at Burracoorong; and

(i) organised all of their affairs on the basis that the security provided by Mr Browne would be available to them, which they would not otherwise have done.

Steven claims that Mr Browne has resiled from the promises:

(a) in about August 2013, Mr Browne prevented Steven from having access to the infrastructure on Yargalain and demanded Steven sign a lease for Burracoorong;

(b) in or about November 2013, Mr Browne sought to withdraw his guarantee for Steven's borrowing because Steven would not sign the proposed lease and informed Rabobank he would not agree to any extension of borrowings being secured against Burracoorong;

(c) from on or about 1 June 2017, Mr Browne refused to acknowledge his promise to Steven that he would give Burracoorong to Steven and refused to continue to guarantee Steven's borrowings;

(d) on or about 4 August 2017, Mr Browne demanded an increased annuity, (or rent) from Steven of $61,000 per year, commencing on 1 July 2017 and reserved his right to evict Steven from Burracoorong if Steven did not pay the sum of $64,000 by 11 August 2017; and

(e) on 4 August 2017, Mr Browne executed a will in which the conditions that attach to Steven's entitlement to Burracoorong, via testamentary trust, is inconsistent with the promise and is illusory because it is expressly irrevocable and requires the payment of an amount Steven is unable to pay.

60 Steven claims his reliance on the induced assumptions is to his detriment. He claims if Mr Browne is permitted to resile from the matters giving rise to the promises this will cause detriment to him (together with Shelley) so that he will:

(a) lose his entire life's investment and effort in Burracoorong;

(c) remain liable to the bank for the funds borrowed and previously secured by Burracoorong; and

(d) have no capacity to repay the bank and thereafter continue to support himself and his family.

61 Steven articulates the relief he seeks as follows:

1. A declaration that the defendant holds his legal interest in Burracoorong on trust for the plaintiff.
2. An order that the defendant do forthwith transfer his interest in Burracoorong free of encumbrances (other than the encumbrances that secure Steven and Shelley's loans) to Steven.

(a) Burracoorong is to be transferred to the plaintiff on the defendant's death; and

(b) the defendant continue to make Burracoorong available to secure the plaintiff's loan so as to allow Steven to continue farming Burracoorong.

1. Alternatively, an order that the defendant pay compensation or damages to the plaintiff.
2. An order that the defendant pay the plaintiff's costs of the proceedings.
3. Such other relief as the Court sees fit.

62 On 21 September 2017, I made an order that the relief claimed in [D] be tried separately on grounds that if the relief pleaded in [A], [B] or [C] succeeds or if Steven fails in establishing his claim that he has suffered a detriment in reliance on the promises made to him by Mr Browne then the claim in [D] will fall away: Browne v Browne [2017] WASC 297 [38].

63 Mr Browne denies the promises alleged to have been made before the split of the family farming partnership, and does not recall having a will prior to 2005.

64 Mr Browne says the asserted promise is vague and that in any event, the promise was executory and no estoppel will lie in aid of an executory promise.

65 Mr Browne's answer to Steven's case is that it was a term of the agreement reached with Steven and the brothers in 1999:

(a) that each of the brothers would use the land allocated to them;

(i) retained ownership of Mr Browne's land absolutely;

(ii) retained control of the land owned by Ulinda and Menari absolutely;

(iii) was entitled to vary the allocation of the land at his absolute discretion;

(c) for as long as they used the land the brothers would each pay an amount to Mr Browne and Mrs Browne until both of them died. The amount was to be determined by Mr Browne and Mrs Browne at their absolute discretion, relative to their needs and obligations, and $16,000 per annum were initial amounts;

(d) Mr Browne agreed to continue to guarantee the existing debts of the partnership for the term of the guarantee and could, at his absolute discretion, agree to guarantee further loans;

(e) Steven was given the right of access across Yargalain provided he equally bore the costs of electricity and maintenance during shearing season with Peter; and

(f) provided the brothers individually complied with their obligations pursuant to the agreement, both Mr Browne and Mrs Browne would make a will which provided that, upon the death of both of them such of the brothers who had complied with the agreement would be given the land of which they had use.

66 Pursuant to the absolute discretion clause, Mr Browne varied the allocation of land to be used by Steven and the other brothers in or about 2000 and the land to be used by the brothers (other than Steven) in 2002, 2003, 2011, 2012, 2014 and 2015.

67 Mr Browne concedes that, in or about August 2013, he instructed his solicitors to inform Steven that Steven's access to Yargalain was refused and Mr Browne locked the gates to Yargalain thus, excluding Steven from the right of access, on grounds of Steven's conduct to Mr Browne and Peter.

68 Mr Browne also claims by the terms of the 1999 agreement, he was obliged to allow the properties to be used as security until the partnership's debts were paid, and thereafter was entitled to consider whether he would allow the use of any property as security for his sons' loans in his absolute discretion. Consequently, Mr Browne claims there is no basis for a court to compel him to pledge his property as security for any further extension to Steven's loan in the absence of a promise to that effect.

69 Mr Browne says that Steven ought to have known that he was not likely to further guarantee Steven's loans or pledge Burracoorong as security for Steven's loans.

70 Mr Browne claims that reserving rights to evict Steven from Burracoorong is not evidence that he is resiling from the promise made to Steven, as his 2017 will gifts to Steven Burracoorong by way of a testamentary trust subject to Mrs Browne's entitlement.

71 Mr Browne claims $34,000 per annum and $61,000 per annum commencing 1 July 2017 is more than a reasonable and fair sum of rent for Steven's use and occupation at Burracoorong

72 Mr Browne denies Steven has suffered a detriment and says that Steven has the capacity as director of Burracoorong Pty Ltd to sell the Steven Browne Family Trust share of Moganmoganing and pay all or most of his and Shelley's debts to the bank.

73 Further, Mr Browne denies that Steven is entitled to the relief sought and says that if in the event Steven is entitled to any relief at all, the relief should not be disproportionate to his detrimental reliance given that:

(a) Steven had the use of Burracoorong to derive income and profits for himself and his family members at a rent of $13 per hectare from 1999;

(b) $13 per hectare is not a reasonable market rate of rent in 1999 or 2017, or in any of the years between those years; and this rate has been of substantial assistance to Steven and his family for over 18 years of occupation;

(c) Steven has substantially benefited from the terms of the 1999 agreement by living in the house on Burracoorong rent free and farming Burracoorong at the rate per acre he is paying to Mr Browne;

(d) Steven utilised the free labour of Mr Browne between 1999 and 2010 which was of substantial assistance to him and his family. During this period, Mr Browne carted all of Steven's fertiliser, wool and grain for no charge.

74 Mr Browne claims that the value of Burracoorong as a farming property is at least $6,825,000, and potentially more than that.

75 The counterclaim by Mr Browne is put in the alternative.

76 The first is a claim based upon an alleged condition of the 1999 agreement which is characterised by Mr Browne as an income discretion clause. In accordance with the alleged term, Mr Browne pleads increased payments of $34,000 per annum, retrospectively from 1 July 2013.

77 Mr Browne also pleads that on or about 4 July 2017, he demanded that Steven increase the annual amount from 1 July 2017 to $61,000 per year. Steven has failed to pay this sum. Mr Browne therefore claims that Steven owes him the sum of $61,000 rent for the 2017/2018 financial year.

78 In the alternative, Mr Browne puts forward a counterclaim on the basis of a term said to be implied by law requiring Steven to pay a reasonable sum for use and occupation of the land at Burracoorong. The particulars plead it was an implied term of the 1999 agreement that Steven would pay Mr Browne a reasonable rent for Steven's use and occupation of Burracoorong, when Mr Browne requested Steven to do so. In the defendant's reply to counterclaim and rejoinder it is pleaded a landlord and tenant relationship arises as a tenancy at sufferance.

79 A reasonable sum is claimed to be the rent paid by lease holding farmers in the vicinity of Burracoorong, that is, market rent. Mr Browne claims market rent should be assessed at same rate of payment the same rate as Steven and Shelley have paid the Steven Browne Family Trust for the past six years for the use of 406 ha of Moganmoganing.

80 Mr Browne also pleads that on or about 26 June 2017, Steven lodged a caveat (N656535C) over the whole of the land comprising Burracoorong. The caveat claimed an interest as beneficiary of a trust of the fee simple arising from Mr Browne's promise to transfer or bequeath Burracoorong to Steven. On the basis that no such promise was made by Mr Browne to Steven, or because Mr Browne lives, Mr Browne claims that the caveat should lapse upon the making of the court's order.

82 There are two forms of proprietary estoppel. The first form originates from Dillwyn v Llewellyn [1862] EngR 908; (1862) 4 De GF & J 517; 45 ER 1285. In that type of case equity affords relief on detrimental reliance created by encouragement by the owner of land as to the future acquisition of property: Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101; Sidhu v Van Dyke [2014] HCA 19; (2014) 251 CLR 505; Priestley v Priestley [2017] NSWCA 155 [7] (Macfarlan JA).

83 The second form originates from Ramsden v Dyson (1866) LR 1 HL 129. It is proprietary estoppel by standing by, or acquiescence.

84 Steven's case relies upon estoppel by encouragement.

85 As Ball J explained recently, in Wantagong Farms Pty Ltd v Bulle [2015] NSWSC 1603, the equitable doctrine of estoppel by encouragement includes the following elements [62]:

(a) the party alleged to be estopped has encouraged or induced an expectation of a future transfer of an interest in property;

(b) there has been reliance on that expectation in the form of a change of position by the party seeking to establish the estoppel; and

(c) there has been (or will be) an identifiable detriment to the recipient of the assurance as a result of the change of position, where the expectation is not fulfilled.

However, these elements often overlap to a significant extent. As Robert Walker LJ noted in Gillett v Holt [2001] Ch 210 at 225, 'the doctrine of proprietary estoppel cannot be treated as subdivided into three or four watertight compartments'. The various aspects of the doctrine are ultimately concerned with the overarching question whether it would be unconscionable in all the circumstances of the particular case to permit a departure from the encouraged expectation: ibid. See also Delaforce v Simpson-Cook at [3] per Allsop P.

86 The existence of an agreement or even a promise is not at the heart of the doctrine of proprietary estoppel. Rather, the doctrine is directed to preventing an unfair departure from an expectation induced or encouraged by a person which has been relied upon by another, and will cause detriment to that other person if the expectation is not fulfilled.

87 In an estoppel that arises by encouragement, where a party has expressly or impliedly promised to grant an interest to another, the subjective state of mind of the person making the promise is irrelevant if the other person acted reasonably in relying on the promise: Priestley [13] (Macfarlan JA).

88 The first element summarised in Wantagong Farms by Ball J requires that the promise, assurance or representation by the party who is to be estopped must be sufficiently clear even though it may be lacking in detail: Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26; (2016) 90 ALJR 770 [36] (French CJ, Kiefel & Bell JJ), [149] (Keane J). However, the representation or assurance need not be at the level of certainty or specificity that would be required to establish a contractual obligation: Wantagong Farms [63]; Sullivan v Sullivan [2006] NSWCA 312 [84] [85] (Hodgson JA); Flinn v Flinn [1999] VSCA 109; [1999] 3 VR 712 [80] (Brooking JA).

89 A representation may be subject to conditions that arise from the circumstances of a representation.

90 In Waddell v Waddell [2012] NSWCA 214, Campbell JA pointed out that Thorner v Major [2009] UKHL 18; Walton v Walton [1994] (Unreported, Court of Appeal of England and Wales, 14 April 1994), Delaforce v SimpsonCook [2010] NSWCA 84; (2010) 78 NSWLR 483 [81] and Evans v Evans [2011] NSWCA 92 [108] establish that [54]:

... equitable estoppel [by contrast with contract] ... does not look forward into the future [it] looks backwards from the moment when the promise falls due to be performed and asks whether, in the circumstances which have actually happened, it would be unconscionable for the promise not to be kept.

91 In relation to the second element considered by Ball J in Wantagong Farms, reliance by a change of position, requires a factual inquiry. In Sidhu, French CJ, Kiefel, Bell and Keane JJ importantly pointed out that [58]:

In point of principle, to speak of deploying a presumption of reliance in the context of equitable estoppel is to fail to recognise that it is the conduct of the representee induced by the representor which is the very foundation for equitable intervention. Reliance is a fact to be found; it is not to be imputed on the basis of evidence which falls short of proof of the fact. It is actual reliance by the promisee, and the state of affairs so created, which answers the concern that equitable estoppel not be allowed to outflank Jorden v Money by dispensing with the need for consideration if a promise is to be enforceable as a contract. It is not the breach of promise, but the promisor's responsibility for the detrimental reliance by the promisee, which makes it unconscionable for the promisor to resile from his or her promise. In Giumelli v Giumelli, Gleeson CJ, McHugh, Gummow and Callinan JJ approved the statement of McPherson J in Riches v Hogben that:

'It is not the existence of an unperformed promise that invites the intervention of equity but the conduct of the plaintiff in acting upon the expectation to which it gives rise.' (footnotes omitted)

92 As to the third element, the detriment or harm required to ground an estoppel can be any material disadvantage: Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [2014] HCA 14; (2014) 88 ALJR 552 [150]. Such material disadvantage must be substantial, although it need not be quantifiable in the same way as an order of damages: The Commonwealth v Verwayen (1990) 170 CLR 394, 448 (Deane J), 461 462 (Dawson J). In Gillett v Holt [2000] EWCA Civ 66; [2000] 2 All ER 289, Robert Walker LJ explained that (308):

The overwhelming weight of authority shows that detriment is required. But the authorities also show that it is not a narrow or technical concept. The detriment need not consist of the expenditure of money or other quantifiable financial detriment, so long as it is something substantial. The requirement must be approached as part of a broad inquiry as to whether repudiation of an assurance is or is not unconscionable in all the circumstances.

There are some helpful observations about the requirement for detriment in the judgment of Slade LJ in Jones v Watkins [1987] CA Transcript 1200. There must be sufficient causal link between the assurance relied on and the detriment asserted. The issue of detriment must be judged at the moment when the person who has given the assurance seeks to go back on it. Whether the detriment is sufficiently substantial is to be tested by whether it would be unjust or inequitable to allow the assurance to be disregarded that is, again, the essential test of unconscionability. The detriment alleged must be pleaded and proved.

93 Detriment is not the loss flowing from the nonfulfilment of the promise. The detriment that makes an estoppel enforceable is that which the party asserting the estoppel would suffer, as a result of his or her original change of position, if the assumption which induced it was repudiated by the party estopped: Delaforce [41] [42] (Handley AJA); Grundt v The Great Boulder Proprietary Gold Mines Ltd [1937] HCA 58; (1937) 59 CLR 641, 674 675.

94 An assessment of detriment must be approached from the position of whether departure from the promise is unconscionable. In Donis v Donis [2007] VSCA 89; (2007) 19 VR 577, Nettle JA explained that [20]:

The prima facie position will yield to individual circumstances. Principle and authority compel the view that where a plaintiff's expectation or assumption is uncertain or extravagant or out of all proportion to the detriment which the plaintiff has suffered, the court should recognise that the claimant's equity may be better satisfied in another and possibly more limited way. Thus, as was also said in Giumelli v Giumelli, before granting relief the court is required to consider all of the circumstances of the case, including the possible effects on third parties, and to avoid going beyond what is required for conscientious conduct or would do injustice to others. But that does not mean that the court is required to be 'constitutionally parsimonious' or that it is necessary for there to be substantial correspondence between expectation and the monetary value of the detriment suffered, or which but for the relief to be accorded would be suffered. The object of the exercise is to do equity and for that purpose 'detriment' is no narrow or technical concept. It need not consist of expenditure of money or other quantifiable financial disadvantage so long as it is something substantial. The requirement must be approached as part of a broad inquiry as to whether departure from a promise would be unconscionable in all the circumstances. (footnotes omitted)

95 Proof of detrimental reliance at all times lies on the claimant to prove that he or she had been induced to rely upon the promises made by the person who is said to be estopped: Sidhu.

96 The test is not whether the claimant would have acted differently if the person said to be estopped had not encouraged his assumption and belief but whether he or she was influenced, in a significant or material way, such that it was a contributing cause to his or her conduct or made a difference to his or her action or inaction so that it would be unconscionable for the promisor or representor thereafter to enforce his or her strict legal rights: Priestley [136] [138] (Emmett AJA).

97 Whilst it is correct to say that the measure of relief should not be out of proportion to detriment, it appears the starting point may not be the imposition of a remedy to reflect the 'minimum relief necessary to do justice between the parties'. In Sidhu, Gageler J observed in relation in cases decided before Giumelli that [85]:

There may be cases where '[i]t would be wholly inequitable and unjust to insist upon a disproportionate making good of the relevant assumption'; but in the circumstances of the present case, as in Giumelli v Giumelli, justice between the parties will not be done by a remedy the value of which falls short of holding the appellant to his promises. While it is true to say that 'the court, as a court of conscience, goes no further than is necessary to prevent unconscionable conduct', where the unconscionable conduct consists of resiling from a promise or assurance which has induced conduct to the other party's detriment, the relief which is necessary in this sense is usually that which reflects the value of the promise. (footnotes omitted)

98 In Delaforce, Handley AJA remarked that the minimum equity principle since Giumelli is probably not the law in this country: [59]: see also Sullivan [20] [23] (Handley JA).

99 In Sidhu, French CJ, Kiefel, Bell and Keane JJ remarked that [84]:

If the respondent had been induced to make a relatively small, readily quantifiable monetary outlay on the faith of the appellant's assurances, then it might not be unconscionable for the appellant to resile from his promises to the respondent on condition that he reimburse her for her outlay. But this case is one to which the observations of Nettle JA in Donis v Donis are apposite:

'[H]ere, the detriment suffered is of a kind and extent that involves life-changing decisions with irreversible consequences of a profoundly personal nature ... beyond the measure of money and such that the equity raised by the promisor's conduct can only be accounted for by substantial fulfilment of the assumption upon which the respondent's actions were based.

100 Where the expectation is undefined or is uncertain, equity must fashion its relief from the circumstances, but where the expectation was defined with certainty by the party estopped that is where the court must start: Delaforce [92] (Handley AJA).

101 Equity is flexible and can recognise the need for a clean break. Importantly, equity must do justice to the defendant and must take into account the impact of its orders on third parties or any hardship or injustice they would suffer: Delaforce [59], [60] (Handley AJA); Pascoe v Turner [1978] EWCA Civ 2; [1979] 2 All ER 945; [1979] 1 WLR 431; Giumelli (113 114, 125); Gillett (312); Jennings v Rice [2002] EWCA Civ 159.

102 Relief may be refused or reduced if the claimant's equity has been diminished by later events: Sledmore v Dalby [1996] EWCA Civ 1305; (1996) 72 P & CR 196 CA. Subsequent events may also enlarge the claimant's equity: Sullivan [25] (Handley JA).

103 Other matters that must be considered when determining an appropriate remedy to prevent the unconscionable defeat of the induced expectation were set out by Ball J in Wantagong Farms as follows [72] [73]:

In determining whether a grant of equitable relief is appropriate, it is open to the court to consider circumstances that eventuated after the encouragement or assurance: Delaforce v Simpson-Cook at [61] per Handley AJA. As Macfarlan JA explained in Milling v Hardie [2014] NSWCA 163 at [55], '[t]he court may [...] take account of a supervening circumstance, such as a defendant's unexpected financial reverse, which might justify departure from a promise that has given rise to a proprietary estoppel'. It was also said in Duic v Duic [2013] NSWCA 42 at [32] and Milling v Hardie [2014] NSWCA 163 at [55] that the detriment of the party seeking to establish the estoppel could be 'amortised' over time as a result of some related benefit accruing to that party.

Finally, it was noted by Allsop P in Delaforce v Simpson-Cook that in considering the appropriate form of relief, '[p]roportionality of the claimed interest or remedy to the prejudice or detriment is undeniably a relevant consideration' (at [4]). However, his Honour stressed that proportionality is not to be 'transformed into a necessary constitutive element of a cause of action to be pleaded or proved by the party seeking relief', as to do so would be to 'elevate one consideration above others' (at [4]). See also Ashton v Pratt [2015] NSWCA 12; (2015) 88 NSWLR 281 at [142] per Bathurst CJ.

104 The fact that a family relationship has broken down since a promise was made is not ordinarily regarded as a reason to deny a claimant his or her prima facie entitlement to have the promise made good: Donis [45] (Nettle JA).

105 It is argued on behalf of Mr Browne that Steven's case that Mr Browne would gift Burracoorong to Steven before or upon Mr Browne's death is executory and thus unenforceable. As I understand the argument, it is put that the time for Mr Browne's performance of the promises to gift Burracoorong before Mr Browne's death, is not only ambiguous, but that the death of Mr Browne has not yet happened.

106 It is also argued that as a matter of practicalities, none of the putative beneficiaries to Mr Browne's estate are present in these proceedings, notwithstanding that upon Mr Browne's death they would have rights under Mr Browne's will to his estate subject to the operation of s 6(1) of the Family Provision Act 1972 (WA).

107 Consequently, an argument put on behalf of Mr Browne that the alleged promises would not be enforceable upon Mr Browne's death as equity will not curtail the operation of the statute. As counsel for Steven point out, this submission is not supported by the principles of equitable estoppel, (or made out on the evidence which I will deal with further in this judgment).

108 It is uncontroversial that the enforcement of irrevocable testamentary dispositions may be contingent upon the provision for eligible dependants: Delaforce [31] [35] (Handley AJA). It is also plain that the courts will not consider a hypothetical contingency which has not occurred. Therefore, the potential operation of the provisions of the Family Provision Act to the disposition of property by will is a question to be determined upon relevant application in due course. But it does not bar a claim in equity arising in the interim. Even where property is included within a will, its owner may nevertheless deal with the property during their lifetime. This might include a testator selling property for any number of reasons, or conducting themselves in such a way as to give rise to an equitable interest in the property to be held by another.

109 Further, an assumption that land would be received by will, (rather than during the promisor's lifetime) is incapable of giving rise to a proprietary estoppel because a person's will is inherently revocable, is not at law correct. This point was made clear very recently by Le Miere J in Currie v Currie [2017] WASC 312, when his Honour said at [116]:

An assumption that land will be received by will is capable of giving rise to a proprietary estoppel. In Flinn v Flinn [1999] VSCA 109; [1999] 3 VR 712 Brooking JA, with whom Charles and Batt JJA agreed, found that promises by the defendant to leave by will an interest in a farm to the plaintiffs gave rise to a proprietary estoppel. The court held that the promises were and were intended to be, and were reasonably understood and acted upon by the promisees as, promises to make a gift by will taking effect on death. They were not promises to make a revokable testamentary instrument.

110 Thus, the issue to be determined by the court is whether the testamentary promise or promises are capable of being construed as demonstrating an intention that can be revoked. If the promises are taken to evince an intention not to revoke, then equity may intervene. In Wantagong Farms, Ball J said [64]:

As was explained by Robert Walker LJ in Gillett v Holt at 227-8, 'the inherent revocability of testamentary dispositions' is not necessarily a bar to finding that statements of testamentary intention are capable of serving as a basis for a proprietary estoppel as '[e]ven when the promise or assurance is in terms linked to the making of a will [...] the circumstances may make clear that the assurance is more than a mere statement of present (revocable) intention, and is tantamount to a promise' (cited by Handley AJA in Delaforce v Simpson-Cook at [36]). His Lordship acknowledged that 'in the generality of cases' it would not be reasonable to rely on a living person's representations as to their testamentary intentions. However, in that case his Lordship found that the expectation was reasonable because the 'assurances were repeated over a long period, usually before the assembled company on special family occasions, and some of them [...] were completely unambiguous' (at 228). In Flinn v Flinn, Brookings JA made a distinction (at [75]) between 'a promise to leave property by will' as sufficient to found an estoppel on the one hand and an insufficient 'intimation of intention to make a will coupled with a disclaimer of an intention not to revoke it'. In Barnes v Alderton [2008] NSWSC 107; (2008) 13 BPR 25,281, Young CJ in Eq, following Gillett v Holt and Flinn v Flinn, stated that, in cases involving a representation as to testamentary intention, what is required are 'circumstances that the promise was given and understood to be irrevocable. That may be shown by circumstances short of an explicit statement that the promise is irrevocable.' (at [58]) The question is whether the person incurring the detriment understood that the maker of the will may change his or her mind, not whether they would do so: ibid, at [51].

Credit and reliability of evidence given by Mr Browne and Steven

111 As counsel for Steven points out, the most reliable indicator of people's reasonable expectations at the time, is not their recollection of what was said decades ago. Rather, the more reliable indicator of people's expectations is what they did and how they conducted themselves.

112 Counsel for both parties also relevantly point out that where the events relevant to a matter occur long before the litigation, the court usually prefers to rely upon contemporaneous documents to provide valuable and more revealing information than flawed attempts at recollection by witnesses: Evans v Braddock [2015] NSWSC 249 [74], (Hallen J) citing Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 [1247] (Jagot J).

113 In this matter there has been conflict not only between Steven and Mr Browne but has also been conflict between Steven and Peter, and Peter and Michael. Further, a dispute arose between Paul and Mr Browne which led to litigation between them which resulted in a deed of settlement arising out of the use of land allocated to Paul. As a result, Paul no longer farms land owned by his father and now works as a psychologist.

114 It is clear to me in these proceedings that Steven and his father and brothers are now divided. None of the Browne family members who gave evidence in these proceedings can be said to be impartial.

115 In assessing evidence which relies upon the recollection of events which occurred many years ago, I have applied the approach of Martin CJ in Fazio v Fazio [2010] WASC 263 [51]. That is, I have placed significant weight upon contemporaneous documents and upon inferences that can be properly drawn from that evidence. Where it is possible to establish objective facts from that evidence, I have then assessed the oral testimony in light of the inherent probabilities of a particular version of events, in the context of the established objective facts.

116 I am not convinced that any witness in the Browne family gave evidence which he or she at this point in time deliberately knows to be false. I use the words at 'this point in time' in relation to Mr Browne. There are obvious problems with Mr Browne's evidence. It is clear to me that his memory is faulty in a number of respects. This could be caused by his advancing age or his partiality, or a combination of both. In these circumstances, I am reluctant to rely upon his evidence unless his evidence is corroborated by other evidence which I accept to be true and reliable or which common sense dictates must be true.

117 When Mr Browne gave evidence, he was resistant to accepting inferences contrary to his interests and was often belligerent. It was also clear that he is not a person who pays meticulous regard to important documents signed by him. On the morning of giving his evidence, Mr Browne signed his witness statements without checking and reading them, notwithstanding the significant discovery of a will on the previous day of the hearing that made a substantive difference to the content of at least one of the paragraphs of his first witness statement that had been tendered as his evidenceinchief. Mr Browne's explanation was that he did not read this statement as he did not have time to do so (ts 397).

118 On the previous day of the trial, Mr Sevenson gave evidence in answer to a subpoena. He produced a number of documents in his possession, including notes of a meeting he had with Mr Browne on 13 November 2001 and a copy of a will made by Mr Browne on 30 June 1986.

119 In Mr Browne's witness statement of his evidenceinchief dated 8 October 2017, Mr Browne stated that he was 100% positive that he did not make a will until 2005: exhibit 16 [40]. When asked about [40] of his witness statement, Mr Browne said that that statement was correct because he did not know he had a will in 1986 when he wrote his witness statement. Despite the fact that he reluctantly conceded that he made a will in 1986, after he had read the 1986 will the night before testifying, he would not concede that the statement that he made in [40] was incorrect.

120 Mr Browne has very little memory of historical events that are recorded in documents. When documents were put to him that were not detrimental to his case, that was proof of something that he did, he accepted the matters stated in the document irrespective of whether he had signed a particular document. For example, when a document of the Primary Industry Bank of Australia Ltd dated 30 April 1999 was put to him which recorded that it had approved an extension to the loan limit in the name of Menari Pty Ltd (as trustee for the Edward Browne Family Trust trading as E & M Browne and Sons) to $850,000, Mr Browne said that he did not remember agreeing to an extension of the partnership loan facility after the split of the partnership, yet he accepted that the document showed that there was an increase in the loan facility at that time.

121 At other times when documents were put to him which recorded that certain events had occurred or he had said particular things which were detrimental to his case, he said that, if he could not remember an event, it did not happen. An example of this arose out of the crossexamination of Mr Browne about a diary note made by Steven in which Steven recorded that Mr Browne had attended a meeting on 11 October 2003. Steven is in the habit of keeping a diary of events at the end of each day. In a diary note made by Steven on that day he recorded that Mr Browne met with his accountant, Mr Crawford, and advisor, Mr Claude Mancini, together with Steven, and at that meeting there was a discussion about transferring Burracoorong to Steven through a testamentary trust. When asked about whether he recalled this meeting or any meeting attended by Steven, Mr Crawford and Mr Mancini, Mr Browne said he did not remember it and he had no memory of it. He then said, 'If I can't recall it, how can I admit to it'. The question was then put, 'I'm not asking you to admit it, I'm asking you do you admit that it might have happened, even though you can't recall it?' Mr Browne's answer was, 'To me, it didn't happen'. The question was then put, 'So if you don't remember something, you're[sic] position is it didn't happen?' Mr Browne's answer was, 'That's right': ts 477.

122 One of the issues in dispute between the parties was whether an incident had occurred shortly before Christmas in 2010 between Steven and Mr Browne when Mr Browne was helping Steven to cart the harvest on Burracoorong which resulted in Steven and Mr Browne falling out. Steven says this event occurred in December 2009. In a witness statement, Mr Browne said that he told Steven he was going to take Steven's load and then see if Peter needed any grain to be carted. Mr Browne says Steven said, 'No you won't', and physically prevented him from entering the truck to deliver Steven's grain which was already loaded. As a result of the incident, Mr Browne has not worked for Steven again, their relationship has never been the same and this incident is one of the matters which led to Mr Browne excluding Steven access to the infrastructure on Yargalain in 2013. The timing of this incident is important because in March 2010, Mr Browne agreed to guarantee an additional loan on Burracoorong of $400,000 to expire on 2 January 2018, which extended Steven and Shelley's loan facility with Rabobank to $1,125,000: exhibit A, 245 257.

123 In crossexamination, it was put to Mr Browne that Steven had examined his records and the log records (which indicate the identity of the drivers who carted grain) prior to Christmas 2009 and 2010 and these records indicate that the incident occurred in 2009. In response, Mr Browne said that Steven's lawyer had sent him a letter in which it was recorded that the incident occurred in 2010 and that is how 'he took it to have happened in 2010'. When it was put again to Mr Browne that Steven had subsequently checked the records and the records show that Mr Browne had not carried out any carting of grain for Steven in 2010 Mr Browne said that he did not accept that the incident happened in 2009. He then said, 'If that had happened in 2009, would I have allowed him [Steven] to borrow another $400,000 early 2010?' When copies of the delivery forms for December 2009 signed by Mr Browne and copies of the daily trip recording sheets for November and December 2010, which did not contain Mr Browne's signature, were put to him, Mr Browne demanded to see the originals. On the following day when Mr Browne resumed his evidence and was shown the original of the 2010 documents he reluctantly conceded that the incident with Steven happened in 2009, not 2010: ts 487, 505.

124 In a note of a family meeting of 12 March 1999 made by Mr Sevenson, one of the key issues was stated to be made by Mr Browne, was that the 'annuity to be split equally'. When asked about this statement in the note, Mr Browne emphatically said that he had never used the word 'annuity', however he accepted that the word could have been used (ts 450 451). Mr Browne said on a number of occasions when giving evidence that the word 'annuity' was not a word used by him, it was a word used by Steven. However, when a Rabobank statement of E & M Browne dated 28 February 2013 was put to Mr Browne, he conceded that he had handwritten on the bank statement 'Steven annuity' next to an amount of $18,000: exhibit 20.

125 I generally found the evidence of Steven to be credible. Unlike Mr Browne, his memory was not revealed to be unreliable. I found in general he was an honest witness doing his best to recall events that occurred over many years. Yet, I have some reservations about Steven's recollections of events that occurred in the 1970s because of the passage of time.

126 I found Dale to be a credible witness. He did his best to recall events and answer questions put to him.

127 I found Shelley to be a credible witness. She made appropriate concessions as to matters that she was not involved in. However, the relevance of the most of her evidence is limited as she has left the running of the farming enterprise on Burracoorong and Moganmoganing to Steven.

128 I found Paul to generally be a reliable witness. However, his evidence was tailored, in that he now perceives the 1999 agreement to split the farming partnership to be an agreement that was unfavourable to his sisters. Two years after Paul began farming Yarrawindah and the Army Blocks, he asked Mr Browne if he would secure a mortgage against the Army Blocks and Mr Browne said no, that the Army Blocks were going to be left to his sisters when he and Mrs Browne died: exhibit 24, [46] [49]. When that occurred Paul was surprised and disgusted (ts 540). He said that at the time the agreement was made to split the family partnership it was his 'perception' that all of the land he had been allocated would be his, but that was a false assumption (ts 539).

129 I found Michael to be a credible witness. He gave his evidence in a forthright manner. His evidence is consistent with the contemporaneous documents leading up to the split of the family partnership.

130 I did not find Peter to be a reliable witness. His memory appears to be poor and his attention to detail is poor. For example, in his witness statement tendered as his evidenceinchief he stated that he made an offer to Steven to sell his (Peter's half) of Moganmoganing for $1.6 million: exhibit 28, [73]. However, the offer made to Steven to purchase Moganmoganing (by Peter and Catherine) was in fact $1.4 million: exhibit B, 341 347.

Representations made by Mr Browne prior to 1999

131 Steven's evidence is that in the late 1970s his father said to him on a number of occasions that Robert's or Swan 3259 (Burracoorong) would be his.

132 One of those occasions was when they were walking to the car after Mr Browne and Steven had left a meeting with Mr Browne's accountants in Perth.

133 Steven also said that he read a will made by Mr Browne in the 1970s that contained a specific gift leaving him Swan 3259 (Burracoorong). This evidence is objected to as it is said to be secondary evidence of a document. I am of the opinion this evidence is admissible not to prove the contents of a document, but to what Steven thought his father's testamentary intentions were at that time. However, I have given this evidence little weight. At that point in time Steven had not taken any action in reliance on any representations made to him about Burracoorong.

134 I accept the evidence given by Steven and Shelley that they would not have built their house on Burracoorong in 1987 unless Mr Browne had promised Steven that one day Burracoorong would be his. The records of the discussions at family meetings between 1995 and 1999 and an admission made by Mr Browne supports this finding of fact.

135 Steven and Shelley started building the house on Burracoorong in 1987. Payments were made for the construction of the house between February 1987 and November 1998. The house was paid for in part by Steven's entitlement from the partnership. Steven and Shelley say the remainder was paid from Shelley's savings. Mr Browne claims that he does not remember telling Steven and Shelley that if they build their house on Burracoorong it will be theirs. Yet he concedes that Steven took money out of the partnership to build the house but could not remember whether it was wages or drawings on the partnership. He said that he believed that Steven was entitled to do so but he does not remember the details. Nor does Mr Browne know anything about Shelley's alleged contribution to the cost of the house.

136 Whilst counsel for Mr Browne argued that there was no reliable evidence before the court that Steven paid for his house from his entitlements in partnership, and no documentary evidence to support such a finding of fact, I do not agree. Mr Browne concedes this to be the case. In any event, Mr Browne removed the partnership records from a sea container on Burracoorong and stored them on a property owned by Mr Browne at Bullsbrook. In 2006, Mr Browne became concerned that he did not have room to continue to store them so he instructed his daughter Anne to destroy the records.

137 Importantly, Mr Browne said when giving evidence that he always believed in his heart that Burracoorong was Steven and Shelley's house and he accepted that Burracoorong was a 'natural place' for Steven and Shelley to farm (ts 455).

138 For the reasons that follow, it is clear to me that from at least by the time Steven and Shelley built the house on Burracoorong, Steven and Shelley arranged their lives and Steven arranged his work and applied his resources upon the expectation that he would one day own Burracoorong. Furthermore, I am satisfied that Steven has incurred substantial financial and personal liabilities because of his expectation of owning Burracoorong.

The material matters discussed at the family meetings between members of the Browne family between 1995 and 1999

139 Michael prepared minutes of the family meetings that occurred in 1995 and 1996. The first meeting was held on 19 and 20 August 1995. At that time Michael was working as an accountant in Perth and was considering returning to work fulltime in the farming partnership. It is apparent from the minutes of the family meetings recorded by Michael in 1995 that the core issues discussed were succession planning in relation to the land, plant and equipment of the partnership, whether succession should be through a company or a trust, the role of Mrs Browne, cash payments to the four sisters who are referred to in the minutes as 'the girls' and the working terms and conditions of the current partnership arrangement.

140 Importantly, in the typed minutes recorded by Michael of meetings that occurred on 19 and 20 August 1995 and 19 and 20 April 1996, it is recorded who was present, and the length of the meetings. The minutes included a statement which indicates that the minutes were subsequently sent to each of the members of the partnership asking them to review and if necessary correct the minutes. The statement was:

Please review the minutes, edit/amend/add as necessary. I did not get to record everything, particularly the discussion I got involved in.

141 Mr and Mrs Browne, Steven, Paul, Michael and Peter attended first the meeting. Shelley also attended the first meeting for part of the time. When Michael gave evidence he said that no member of the family sought alterations or amendments to the minutes of the two meetings. When Paul gave evidence he agreed that Michael's minutes were a more reliable account of what occurred at that period of time rather than anyone's present recollection of what was said at those meetings. Peter was unable to say when he gave evidence whether Michael's notes fairly recorded the discussion at the family meetings.

142 Despite Mr Browne's denial that he had in place a will earlier than 2005 or that he discussed any of his wills with his sons, it is patently clear from Michael's minutes of the family meeting on 19 and 20 August 1995 that there was in existence a current will of Mr Browne and the terms of that will was discussed at that meeting. In the minutes of that family meeting a number of core issues were discussed including the topic 'Land how it is to be left to each of the boys (what mechanism)'. In the minutes Michael recorded under the heading 'Mum/Dad' the following statements or observations attributable to Mr and Mrs Browne:

1. 'land will not be divided until Mums/Dads death'

Mechanism for distribution still undecided, although currently via will (30% Steven, balance equally)

1. 'additional land purchases morally not Dads to distribute, however it is Dads belief he has that right'

Hence current Steven 3400 Michael 2000

View of allocation Paul 2300 Peter 2300

1. 'general agreement that the current amount of land will not meet everyone's long term views of a viable farm
2. Paul/Michael/Peter agree Steven should receive a larger % for his contributions in the past
3. need expert advice on the benefits of leaving land in a trust (Exhibit A, 3317)

144 When Mr Browne was asked about the minutes prepared by Michael of the meetings of 19 and 20 August 1995, Mr Browne accepted that from the beginning of the family discussions that there was a discussion about what mechanism would be used for the land and the plant and equipment to be left to each of the brothers.

145 Mr Browne was also asked about notes that were prepared for discussion at the first meeting which had been prepared by Michael and handed to each person to read. In particular, Mr Browne was asked about the following notes under the heading 'Land' which stated as follows:

The current split is based on the fact Steven has spent the most time on the farm developing the assets. It is aimed at remunerating each of the boys, based on term/input into the farm to date

Currently this is done via a [sic] Dads will

Look at other options like a Trust

ensures Land is kept for benefit of all remaining partners

To form part of the total land package, in which Dad distributes to each of the boys.

Every boy member has an entitlement, even if not in the partnership

The remaining partnership members be given first option to purchase at 70% of the market value (exhibit A, 3304).

146 When asked about these notes, Mr Browne said that he did not give the figures recorded in the document to Michael. He also said that there was no will at that particular time and that as it had been drawn to his attention in these proceedings that he had made a will in 1986, the reference to a will in the notes must have been a reference to the 1986 will.

147 He said, however, that those figures do not reflect what is in the 1986 will. Plainly this contention by Mr Browne is not correct.

148 In cl 5 of the 1986 will, Mr Browne gave his right and title and interest to all of his lands used or capable of being used for farming pursuits to his sons, Steven, Paul, Michael and Peter as tenants in common in the following shares, namely, Steven, nine undivided 30th shares and to each of the other brothers, seven undivided 30th shares. The gift in cl 5 was expressed to be subject to the son's undertaking to permit Mrs Browne to reside during her lifetime in the family residence on the lands free of any rent, rates, taxes and charges and annual outgoings unless Mrs Browne did not wish to reside therein which case each of the brothers in proportion to their entitlement in the lands were required to purchase an alternative residence in a location in Western Australia of Mrs Browne's choice: exhibit 6.

149 It is clear from cl 5 of the 1986 will that the testamentary disposition was that on Mr Browne's death, Steven was gifted 30% of the farming lands owned by Mr Browne. This gift reflects the division of land by will discussed at the family meeting on 19 and 20 August 1995.

150 Michael's minutes record that the next farm discussion meeting occurred on 19 and 20 April 1996: exhibit A, 3311 3314. Mr and Mrs Browne and each of the brothers attended the meeting. Stephanie Browne, Michael's wife, also attended the meeting for part of the time. At that meeting there was a further discussion about the percentage split of the lands to each of the brothers. In statements made that were attributed to 'Mum and Dad' it is recorded that:

(a) 'Steven's past contribution would be met by receiving a larger % of the land currently seen as approx 30 to 35%'; and

(b) 'would expect $50000 net if moves to Perth to live off'.

In statements attributed to Peter, it is recorded that Peter said:

(a) 'opinion that all will eventually want to be independent, farming own land';

(d) 'Steven has been contributing to his own asset development eg Roberts Block'. (Roberts Block is a name that is sometimes used to refer to the land comprising Burracoorong).

151 When asked about the statement recorded in the minutes of the meeting held on 19 and 20 April 1996 which are attributed as statements made by him, Peter said that the minutes accurately recorded that it was his opinion that all the brothers would eventually want to be independent farming their own land and that the farming partnership land should be allocated. When asked about what he had said about Steven contributing to his own asset development, Peter said he did not remember saying that. Then asked what the words attributed to him in the minutes meant, he said, 'Well, I suppose Steven was doing more work on his own block at that time'. Peter, then attempted to qualify his evidence by saying that 'it was Dad's block, that Steven was farming it' and 'it was the dirt that Steven wanted to farm'. He agreed, however, that it was generally understood that that is what Steven wanted at that time.

152 While counsel for Mr Browne was critical of Steven for not discussing with each of his brothers the promise that Steven says was made to him by Mr Browne that Burracoorong would be his, it appears that there was an understanding by the members of the partnership by 1996, or at least by 1999, that Burracoorong would ultimately be Steven's and transferred to him on the death of Mr Browne if not, on the death of Mrs Browne if Mr Browne predeceased her.

153 Mr Browne agreed when crossexamined that there was always the expectation in the years that went by that Steven was going to own Burracoorong when he and Mrs Browne died, although in the first split of the lands, it was intended that Steven was going to get Burracoorong less one paddock (ts 455).

154 The next family meeting occurred on 28 February 1997. A record was also made of that meeting by Michael. Michael however did not type his handwritten notes: exhibit B, 49 56. At the meeting each of the brothers and Mr Browne were present. Mr Crawford, the accountant also attended.

155 Michael's notes record under the heading 'Dad' the following comments or observations made by Mr Browne:

Doesn't intend retiring will need replacing

Dad to be here to run 'smoothly'

If farm split farm won't grow

While Dad is alive, farm to stay as one

If boys can convince Dad not to farm as one, then he wouldn't want to be around.

Girls wont get any land.

If Steven decided another future, no one else could run it hence sell up (exhibit B, 56).

156 When crossexamined about the minutes of this meeting, Mr Browne agreed that his intention at that time was that his sons would get the farmland but not his daughters. He also agreed that it was his intention that the daughters would be looked after in some other way. He said that he wanted to maintain control over the land but would like to see how it worked out amongst the four boys. Mr Browne's position was at the time that he wanted all his sons to work together (ts 430 432).

157 The next family meeting occurred on 13 May 1997. Michael also made handwritten notes of this meeting: exhibit B, 57 65. The meeting was attended by Mr and Mrs Browne, each of the brothers and Peter Michael, a solicitor. When Mr Browne was asked about this meeting he said he did not recall what was said but he did remember Mr Michael coming to a meeting and that he left in disgust because of 'the performance of the boys' and later charged him $1,000 for attending the meeting. He did, however, agree that Mr Michael made suggestions about transferring the pre1985 land (which is capital gains tax free and included Burracoorong) into a trust, but he did not recall anything that was said at that meeting (ts 433).

158 A further family meeting was held on 31 December 1997. The meeting minutes were kept by Mr Sevenson, a farm management consultant, who had been by that time engaged to assist to assess whether the farming partnership should continue to operate as it was or be split. He was also engaged to develop a business plan.

159 In a letter dated 17 February 1998 Mr Sevenson wrote to Mr and Mrs Browne, Steven, Paul and Michael regarding the family discussions that had occurred on 31 December 1997. In the letter he said that:

Two issues are significant which need to be addressed, these are one: The need for the four sons to develop an equitable split of the farming asset based on the assumption of what commitment they have made to the farming operation to date and based on the assumption of what commitment they will make to the farming operation in the future (exhibit A, 86).

160 Although Mr Browne said that he did not remember what was said at the meeting he agreed what is said in this paragraph was discussed.

161 On 21 July 1998, Mr Sevenson wrote again to Mr and Mrs Browne, Steven, Paul, Michael and Peter in which he gave his opinion about the viability of the current business of the farming partnership: exhibit A, 91 106. In the letter, Mr Sevenson estimated the yearly income of the partnership to be $1,016,000, with costs to be around $550,000 per annum and the value of the assets of the partnership to be in excess of $7,000,000 with liabilities of $844,000. He expressed an opinion that the overall picture as presented by the data provided to him was that the business was sound and had reasonable potential. Mr Sevenson also made an observation that:

The critical question is can the farm support five family units on a year in year out basis? This must allow for education expenses for children and for a fair and equitable reward for the amount of effort put in by the various family members in managing the property.

Equally it must allow for a reasonable return to Ted and Mae in their retirement.

162 When this passage was put to Mr Browne he said 'The lands that I controlled was my superannuation': ts 436, exhibit A, 93.

163 There was another family meeting on 24 July 1998. Mr Sevenson attended with Mr and Mrs Browne, Steven, Paul, Michael and Peter: exhibit A, 96. On the same day Mr Sevenson wrote a letter addressed to each of the members of the partnership: exhibit A, 97 106. In the letter, Mr Sevenson made a recommendation that the assets currently held by Mr Browne in his own name be transferred into a trust so that at a future date there is not the opportunity for a challenge to his will. Mr Sevenson also stated that there needed to be some discussion and decisions made as to whether, the business is best operating as it is, or whether it is feasible to split it up or in the best interests of the partners and the future of the business to contemplate splitting it up: exhibit A, 97 98.

164 In a letter dated 9 September 1998, Mr Sevenson wrote to Mr and Mrs Browne, Steven, Paul, Peter and Michael and set out what he recorded as being discussed at a family meeting on 24 August 1998: exhibit A, 107 114. It is clear from that letter that, at that point in time, no decision had been made as to whether the brothers were to farm together. The letter recorded that it had been agreed that Steven, Mr and Mrs Browne each held 24% of the equity in the partnership, Paul and Peter 12% each and Michael 4%. The letter also stated that:

(a) 'The current request is for drawings of $55,000 a year, $30,000 to Mae and $25,000 to Ted'. Income tax would be paid by the business so these payments would represent drawings rather than salary; and

(b) it had always been the intent that the proceeds of the life insurance policies, the unit in Perth and the AMP shares would go equally to the daughters of the family.

165 Mr Browne was unable to recall whether these matters were discussed at the meeting on 24 August 1998 and said that these were just discussions and not decisions that had been made: exhibit A, 107 109, ts 447.

166 There was a further family meeting on 18 September 1998. It was apparent from the matters set out in a letter written by Mr Sevenson on 23 September 1998 to each of the partners that it was a very emotional meeting: exhibit A, 117 122.

167 It also appears there was at that point in time conflict between the brothers. In his letter, Mr Sevenson stated that it was clear that Steven was the odd man out and that Paul, Peter and Michael felt they could work together but they could not work with Steven at this present time. Mr Sevenson put forward a number of options how to split the farming operation based on the equities which had been agreed between all parties.

168 One of the issues Mr Sevenson recorded that was still to be resolved was:

A final issue that was raised was the one about how we would we [sic] cater for the annuity to Ted and Mae. [sic] would it be shared equally between the four brothers or was it to be divided up on a pro rata base [sic] according to the assets that they were given out of this split up. Steven was emphatic that it would be an equal splitting of the annuity between the four brothers although it wasn't clear between the three remaining brothers, generally it was felt that prorata payment according to the asset wealth of the individual was probably a fairer arrangement (exhibit A, 119)

169 It is common ground that subsequent to this meeting that each of the members of the partnership agreed to the terms of the splitting of the partnership. There is no documentary record of the terms of the split. It is however, clear that Mr and Mrs Browne left the partnership and each of the brothers commenced their own farming operation on and from 1 February 1999.

170 The next family meeting occurred on 12 March 1999. Mr Browne, Steven, Paul and Mr Sevenson attended the meeting. Michael did not attend, however, Michael's wife Stephanie attended the meeting. Notes were made at what was discussed at the meeting by Mr Sevenson and by Stephanie. Although the meeting notes are not identical there appears to be some consistency of the matters recorded as being discussed at that meeting.

171 Whilst Stephanie's notes record comments attributable to Peter, Mr Sevenson's notes do not record that Peter was present.

172 Of importance, there are three matters which are recorded in each of the notes of Mr Sevenson and Stephanie.

173 Mr Sevenson's notes states there were key issues discussed at the meeting on 12 March 1999 and five of those matters were:

1. Ted requires security for his and Mae's future income.
2. [150 acres] of split will need to be adjusted from an original split. (Stephens area to be total area for security).
3. Happy with percentage split of other assets and debt [36%, 24%, 24%, 16%].
4. Annuity to be split equally;
5. Wool to be split on value and numbers (exhibit A, 171).

174 Stephanie's record of matters discussed are consistent with points 4, 5 and 6 of Mr Sevenson's notes: exhibit A, 165.

The terms of the partnership split and representations made by Mr Browne when the partnership was split

175 Steven's recollection of the terms of the split of the partnership is consistent with the documents that record the matters that were discussed at the family meetings between 1995 and 12 March 1999. Steven's evidence is that his father, mother, Peter, Paul, Michael and he accepted that:

(a) they would not farm together as a partnership;

(b) based on the calculation that each person would have 1% equity for each year worked on the farm and that the remaining equity in the partnership that Mum and Dad had would be evenly split, the equity split would be Paul 24%, Peter 24%, Michael 16%, me 36% and that the partnership farm debt (that did not include Mum and Dad's unit in Hillarys) would be borne by each of us in these percentages;

(c) that Mum and Dad would each stop drawing from the partnership;

(d) we would each pay the same annuity to Mum and Dad for their upkeep;

(e) Peter would be allocated Yargalain; Paul would be allocated Yarrawindah and the Army Blocks, Michael would be allocated Glenalan (and part of Yargalain that existed on a separate title) and I would continue to farm Burracoorong; and

(f) each of the properties that have been allocated would be transferred to the person farming it.

176 It is not in dispute that each of the brothers would share 25% of the debt for the Sorrento unit.

177 Whilst much was made in crossexamination of Steven about whether the terms of the agreement were that an annuity was to be paid to Mr and Mrs Browne or whether each of the brothers were required to pay rent for the use of the land, irrespective of whether the payments were termed as an annuity or rent, I am not satisfied at law, that the annual payments made by each of the brothers were rent pursuant to the terms of a lease, or Steven's right to farm Burracoorong constituted a tenancy at suffrage.

178 It is clear however, that Steven was given advice by the accountant, Mr Crawford, to treat the annual payments as rent. Mr Crawford provided this advice in writing to Mr Browne. In a letter dated 29 February 2000, Mr Crawford wrote to Mr and Mrs Browne and stated that he had advised:

the boys that the best method to pay you is in the form of rent on the land.

The land is in your name Ted and some in family trusts. This will enable rent to come direct to you, Mae can get her income via the Family Trust distribution.

The attached schedule A sets out rental level to give a net income of $54,396, who is to pay and via what entity (exhibit A, 380).

179 It is also not in dispute that each of the brothers was to service his share of the partnership debt from the property that he was farming. Each of them had access to the available credit on the loan facility in accordance with their respective agreed equity. After the split each of the brothers initially used the loan account that had been used for the partnership in accordance with their agreed equity.

180 On 16 January 2003, the loan account was split: exhibit A, 578 580, 663 666. After that time, each of the brothers sought and obtained their own loans over the land they farmed by securing guarantees from Mr Browne.

181 Mr Browne said that at the family meetings they were all considering how the partnership would keep going, and, if it could not, what the boys were going to do. He was happy to leave that to the boys to work out but he was involved. He remembered that Michael worked out a formula to determine what each boy would be allowed to farm based on how long they had been employed or a partner. However he was always clear in meetings with his wife and the brothers that:

I was going to keep the land and that the land was mine and Mae's security; and Mae and I were going to need money for the rest of our life to support ourselves and that was going to come from the boys in exchange for them using the land (exhibit 16 [64]).

182 Mr Browne said the boys could not work it out through Mr Sevenson and in the end Mr Sevenson just drifted out of the picture. So he had to do something so he told each of the boys that:

(a) he would allocate the land to the boys based on Michael's formula and his experience from time to time working with them;

(b) they could farm it so long as they did so properly and did it themselves - no subleasing;

(c) Mrs Browne and he would leave the partnership and they could have what would be our share of the assets of the partnership and approximately 8,000 sheep that he owned personally provided they paid the debts of the partnership;

(d) he knew that there were plenty of assets in the partnership but he did not remember the details;

(e) Mrs Browne and he would make wills so that the boys would get, in our wills, what they farmed;

(h) Mrs Browne and he would be paid what they needed to manage. They would set that amount, starting with the amounts they had discussed with Mr Sevenson;

(i) he would allow the mortgages to stay on the farms that existed until the farm debt was paid out: exhibit 16, [67].

183 Mr Browne's position is that while he specifically recalls he told each of the brothers 'you will get in the will what you farm', any expectation was expressly conditioned by him by two matters:

(a) retaining the ability in his unfettered discretion to reallocate the land in any way he chose (including on the basis of his unfettered views of his son's behaviour); and

(b) reserving to himself the ability to increase the annual amount payable for his needs in his absolute discretion.

184 The difficulty with these contentions is that it was plain that Mr Browne's memory of events, particularly those which occurred over 18 years ago is extremely poor. Secondly, none of the minutes or notes written by Michael, Stephanie, Mr Sevenson and letters written by Mr Sevenson provide corroboration that the first matter was discussed with Steven or his brothers. Nor does the evidence given by Peter, Michael and Paul support the contention of Mr Browne that both of these matters were conditions he imposed upon the agreement made in 1999 to split the partnership.

185 Paul said that at some stage his father had said to him that 'whatever land we farm we would inherit after he and Mum had passed away through their wills'. Paul said Mr Browne also said to him 'he still owned the land whilst he was alive and he was not going to give up control of the land while he or mum were alive'.

186 Michael said that at the meeting on 24 July 1998, Mr Sevenson promoted the idea that the land held in his father's name could be transferred to a trust, as part of the transition process of Mr Browne passing the land over to the four boys. However, at this meeting his father said the land would not be transferred to any son whilst he and his mother were alive and his father said 'we would get what we farm when he and Mum die'.

187 Michael said that whilst Mr Sevenson's minutes are not inaccurate, the minutes did not record everything. Yet Michael agrees that at the family meeting on 24 August 1998, Mr and Mrs Browne indicated to those present they would require around $55,000 (per annum as a drawing from the business): exhibit 26 [76].

188 Michael said that 'in exchange for dad permitting us to use the land, we pay them what money they asked for and at that time was $18,000 each'. He also said that one of the conditions imposed by his father was that 'we would have to farm the land ourselves and we could not lease out the land to third parties'.

189 Peter's evidence was vague. His evidence is that:

The deal with Dad was:

(a) We pay him what he asked for;

(b) We get to use the farm we are farming;

(c) When he and Mum die, he will leave us the farm we are farming in our will;

(d) If we want to borrow money using the farm as security for a loan, Dad has to agree; and

(d) Dad owns the farm until he dies (exhibit 28 [78]).

190 Peter was unable to say whether Michael and Mr Sevenson's minutes and letters prepared by Mr Sevenson accurately recorded what was discussed at the family meetings. Nor did he have a good recollection of what happened at the family meetings. He, however, was able to say that he did not have any concern at the time (the meetings occurred) about whether Mr Sevenson's records were accurate: ts 556 558.

191 It is clear that at no time prior to February 1999 did Mr Browne say to Steven or to the other brothers that Mr Browne could reallocate the land that the brothers were given to farm when the partnership split.

192 Changes were however made to the land allocated in the 1999 partnership split.

193 At the beginning of 2000 Mr Browne reallocated paddock 2 (86 acres) of Yargalain from Michael to Peter. This was because Peter gave up paddock 20 (57) acres of Burracoorong to Steven: exhibit 26, [124] [125]. In 2002 Mr Browne told Michael:

(a) that he could continue to farm the 521 acres on Yargalain until his and Mrs Browne's death but it would not be left to him (Michael) in his (Mr Browne's) and Mrs Browne's wills;

(b) Peter would be given first option to purchase the land, at below market value with the money received being used to gift to the sisters: exhibit 26, [129] [130].

194 Michael expected, but has received no compensation from Mr Browne for the loss of the land he expected to inherit: exhibit 26, [131], ts 547 548.

195 Paul had his allocated land removed from him by 2012 when he could not repay his loans: exhibit 24, [64].

196 The difficulty with Michael and Peter's evidence that 'we pay dad what money he asked for', is that there is nothing in the family minutes that supports such a condition. Importantly, the evidence of Mr Browne himself is that the annual amounts were for 'what he and Mrs Browne needed to manage'.

197 When Steven was crossexamined he agreed that was correct. He also agreed with the proposition put by counsel for Mr Browne that 'the deal with your father was the payment (of the annual amount) was in exchange for what he needed to live on (ts 315).

198 The minutes, notes and Mr Sevenson's letters, together with the evidence of Mr Browne and Steven, make it clear that the annual sum of $16,000 (which was increased to $18,000 in December 1999) to be paid by each of the four brothers was an amount that was fixed as income to cover living expenses for Mr and Mrs Browne in their retirement. This sum was not fixed by regard to the percentage of equity each of the brothers had in the family partnership. Nor was it set by regard to the value of, or area of, the land allocated to each of the sons. Nor was it a sum that Mr Browne could set at large in his absolute discretion.

199 In effect, it can be inferred the condition, in so far as it applied to Steven, was that Steven was to pay 25% of an annual amount to cover living expenses of both Mr and Mrs Browne.

200 Clearly, Mr Browne did not impose a condition that required each of the sons to contribute an annual sum that could support an extravagant lifestyle.

201 Consequently, from the minutes and letter recording the family meeting, the conditions Mr Browne agreed to when the partnership split in 1999 in so far as those conditions applied to Steven which were conditions that were to apply until the death of Mr Browne were:

(a) Steven's equity in the partnership debt and assets was 36%;

(b) Steven was to be allocated all of Burracoorong (after Peter had farmed one paddock in 1999) to reflect his percentage of his equity in the partnership;

(c) Steven was to assume 25% of the debt of the Sorrento unit;

(d) Steven was to pay Mr Browne 25% of an annual amount to cover living expenses of Mr and Mrs Browne in their retirement which in late 1999 was a sum fixed at $18,000 per annum;

(e) Steven was to be gifted in Mr Browne's will the land Steven farmed that was owned by Mr Browne; and

(f) If Mr Browne predeceased Mrs Browne, Steven was to pay the annual amount to Mrs Browne until her death.

202 Mr Browne's claim for rent is firstly made on grounds that Steven owes him arrears of $64,000 (in rent at the rate of $34,000 per annum from 1 July 2013 to 30 June 2017, being $136,000 less the amount of $72,000 paid by Steven) and rent at the rate of $61,000 from 1 July 2017 for the 2017/2018 financial year. These amounts are claimed on grounds that it was a condition of the agreement to split the family partnership that Mr Browne has an absolute discretion to charge Steven a reasonable rate for Steven's use of Burracoorong. It is said Mr Browne has made a demand for payment that has gone unsatisfied. Mr Browne is the landlord and Steven does not have a lease. Steven refuses to pay for his use of the land on fair and reasonable terms.

203 This claim must fail. It was not a condition of the family agreement that Mr Browne be conferred with an absolute discretion to increase the annual amount Steven is to pay Mr Browne. Nor can the annual payments made by Steven to Mr Browne be characterised at law as 'rent'. There is no agreed term that would permit Mr Browne to unilaterally impose increases in the annual payments on the basis of an 'absolute discretion' conferred on Mr Browne. Nor were the annual payments struck by, or were to be a condition of, the use of the land. Leaving aside whether such a term could at law be void for uncertainty, plainly the agreement reached in 1999 between Steven and Mr Browne was that the payments to be made by Steven were to support Mr and Mrs Browne for 25% of what they needed to live on in their retirement.

204 It is immaterial that on the advice of Mr Crawford, Steven recorded the annual payments he made to Mr Browne from December 1999 as a 'rent' expense of the S E & S A Browne partnership (Steven and Shelley Browne partnership) and claimed this expense in the S E & S A Browne partnership's tax records.

205 Mr Browne also relies upon the factual circumstances of treating the annual payments made to him by Steven as rent in support of the alternative claim that there should be implied in law a contract to pay fair compensation for the use and occupation of land. A landlord and tenant relationship is said to arise as a tenancy at sufferance.

206 A contract creating a lease between Steven and Mr Browne is said to arise from the fact that the lands belonging to Mr Browne have been occupied by Steven with Mr Browne's permission. Thus, it is said that an action for use and occupation lies whenever there is a relationship or intended relationship of landlord and tenant. In these circumstances, it is claimed that Mr Browne is entitled to claim 'reasonable satisfaction' from Steven for the land occupied by Steven. It is argued that:

(a) Mr Browne is entitled to obtain a fair compensation for Steven's use of the land as a matter of law; and

(b) what is a fair and reasonable amount should be assessed at the rate of $118 per hectare as that is the effective rate the Steven Browne Family Trust claims as rent for its 406 ha of Moganmoganing.

207 A tenancy of sufferance occurs where a person who had come into possession by lawful title continues after his title has been determined with neither the agreement nor disagreement of a person having lawful title. Thus, a tenant whose lease has expired or has been terminated becomes a tenant at sufferance. So does a defaulting mortgagor of registered law land: SEAA Enterprises Pty Ltd v Figgins Holdings Pty Ltd [1998] 2 VR 90.

208 In Broadway Pty Ltd v Lewis [2012] WASC 373, Pritchard J explained [111]:

A tenant at sufferance is the label which is usually given to a tenant who lawfully enters into occupation of premises (pursuant to a lease, for example), and, after that period of lawful occupation has ceased, continues in occupation without the owner's assent or dissent. Thus a tenancy at sufferance is not, strictly speaking, a tenancy at all, but a holding over by wrong. A tenant at sufferance may therefore be contrasted with a tenant at will in that the former occupies the premises by right, whilst the latter holds over by wrong after the expiration of the lawful title. (footnotes omitted)

209 As counsel for Steven points out, whether an arrangement for the occupation of property is a lease or something else, is a matter of substance not form. A principal distinguishing feature of a lease is that it grants exclusive possession, that is the right to exclude all others from the land including the right to exclude the landlord: Cassidy D, Redfern MR, Australian Tenancy Practice and Precedents [1 05].

210 It is plain from Mr Browne's own evidence that arrangements made between him and Steven cannot at law constitute a lease. Mr Browne gave clear evidence that he is entitled to come and go on the land as he pleases and that no one can stop him from doing so. Further, Mr Browne said unambiguously that his sons (including Steven) have a right to occupy the land. Accordingly, the arrangements cannot, at law, constitute a lease. Therefore, the annual payments cannot in substance be 'rent'. Steven's right to occupy Burracoorong has continued since 1999 and has not come to an end. Consequently, at law a tenancy of sufferance cannot arise as Steven's period of lawful occupation has not ceased.

Representations made by Mr Browne to Steven after Steven commenced farming Burracoorong independently in February 1999

211 Steven's evidence is that in or about 2001, he had a number of conversations with his father about transferring Burracoorong to him including whether it was going to be by direct transfer or by a trust. I accept his evidence that the conversation occurred, as it is clear from the following business records that Mr Browne considered such a cause of action in late 2001.

212 Steven contacted Mr Crawford about the matter. In response, Mr Crawford sent a file note by facsimile on 21 March 2001 addressed to Steven and Mr Browne attaching a stamp duty circular about stamp duty exemptions for certain transfers of farming property. The facsimile also contained notes about establishing a trust (exhibit A, 475 476).

213 Mr Crawford was not called to give evidence on behalf of Steven. Counsel on behalf of Mr Browne invited the court to draw a Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 inference that any evidence Mr Crawford may give would not assist Steven's case. I have not, however, drawn that inference, because whilst Mr Crawford is Steven's accountant, he is also Mr Browne's accountant. In these circumstances it was open to Mr Browne to call Mr Crawford to give evidence. In any event, Steven contacted Mr Crawford in August 2017 to see if he would meet with his solicitor to discuss his (Steven's) dispute with his father and Mr Crawford told him that he considered Mr Browne to be the 'senior client' and that Mr Browne would take precedence over him.

214 In October 2001 Steven rang Mr Sevenson and asked him what was happening about the transfer of Burracoorong to him.

215 When Mr Sevenson gave evidence in answer to a subpoena, he produced notes of a meeting that he had with Mr Browne on 17 October 2001 about transferring Burracoorong to Steven via a discretionary trust. In the notes made by Mr Sevenson the following matters are recorded (exhibit 4):

Discussion with Ted Browne

Plan is to transfer Swan Location 3259 to a Discretionary Trust

Name: The Stephen Browne Family Trust

Trustee: ABC Pty Ltd

Directors: 1. Stephen Browne

2. Mae Browne (Shelley Browne)

Shareholders: 1. Stephen Browne

2. Mae Browne (Shelley Browne)

...

Current Land Ownership Edward Browne

Proposed Land Ownership ABC Pty Ltd as Trustee for the

Stephen Browne Family Trust

...

Annuity $36000 $18000 Stephen

$18000 Peter

Agreement - You are to sell the land Swan Location 3259 to ABC Pty Ltd

As Trustee of the Stephen Browne Family Trust if the

Trustee agrees to an annuity (taxable) (Jan$9000/July$9000)

until Ted Browne (Deceased) and then between to (66%) of

(75%) the original amount until Mae Browne (deceases)

216 In other notes made by Mr Sevenson on the same day, Mr Sevenson recorded that Steven was to receive 'twothirds of unit or Wesfarmers share (sic)' and 'He has held the farm together. He has been the reason why the whole thing still exists': exhibit 8. Mr Sevenson also produced a note handwritten by Mr Browne which states:

217 When questioned about this note, Mr Browne firstly said Steven had helped hold the farm together. He later reluctantly conceded that he had used the words written in the note as the note was in his handwriting (ts 390 391).

218 Mr Sevenson later met with Steven and Shelley to discuss the matter on 13 November 2001: exhibit 5. Following the meeting with Mr Sevenson, in anticipation of the transfer of Burracoorong to a family trust, Steven arranged for the incorporation of Burracoorong Pty Ltd and for the creation of the Steven Browne Family Trust. Burracoorong Pty Ltd was established as the trustee of the Steven Browne Family Trust.

219 When Mr Browne was crossexamined he emphatically denied he was considering at that time transferring Burracoorong to Steven or to a company established as a trustee for Steven's Family Trust. It is clear however from the notes of Mr Sevenson that Mr Browne was contemplating such a course of action at that time.

220 I also accept the evidence given by Steven that Mr Browne subsequently sought advice from Mr Crawford and Mr Mancini about the best way to transfer the property at Burracoorong at a meeting held on 11 October 2002 attended by Mr and Mrs Browne and Steven. Steven made a diary note of this meeting: exhibit A, 660.

221 At the meeting on 11 October 2002, Mr Browne said he would have to change his will, and that testamentary trusts were going to be set up to transfer each of the allocated properties to his sons.

222 By 2003, Mr Browne had in fact taken steps to devise the farming land owned by him by way of testamentary trust to his sons. In a draft will prepared for him in 2003, by cl 13 of the draft, he gave the property known as Burracoorong, being Swan Location 3259, to the Steven Browne Testamentary Trust: exhibit B, 204. It appears that Mr Browne did not execute that draft but he did execute a will in similar terms on 11 February 2005. In cl 17 of the 2005 will, Mr Browne gave to the Steven Browne Testamentary Trust, the property known as Burracoorong. The income beneficiaries of the trust were Steven, Mrs Browne, Steven's children and Steven's lineal descendants. In cl 4 of the will, Mr Browne gave all of his Wesfarmers shares to Steven: exhibit B, 224 237.

223 The next occasion upon which Mr Browne made a representation to Steven about gifting Burracoorong to him that Steven relies upon, arose in 2011 after Paul was facing financial difficulties.

224 In early April 2011, Steven, Shelley and their son Dale visited Mr and Mrs Browne in their unit in Sorrento. Steven told Mr Browne that he was prepared to lease or buy the Army Blocks as Mr Browne had once told him that he could have an option to purchase them if Paul did not want them. Steven wanted more land so he could generate more income to put sheds on Burracoorong. Steven explained that they needed sheds because they could only use the sheds on Yargalain until Mr Browne died. Steven asked Mr Browne, if he would help him financially with building sheds. Mr Browne told Steven that he did not want to sell him the Army Blocks and he did not want to help out with building sheds on Burracoorong.

225 Shelley gave evidence that during this conversation both Mr and Mrs Browne said that Burracoorong would go to Steven. Shelley said that Steven asked Mr Browne to write something down about the promise that Burracoorong would be left to him but Mr Browne refused to sign anything and simply said 'I will not sign, but it will all be left to you'. Whilst Mr Browne recalled Steven and Shelley visiting him in 2011, and conceded that it may have been possible that he assured them that Burracoorong would be left to them in his will, Steven does not recall this being said. In circumstances where there is no documentary evidence of the conversation and only Shelley recalls this promise, I do not intend to have regard to it.

226 In any event, this conversation is not material because at that particular time it appears that there is no evidence Mr Browne had a current will in which he had gifted Burracoorong to Steven subject to any condition which was inconsistent with this promise made by Mr Browne to Steven.

227 The next occasion on which a representation was made to Steven about gifting Burracoorong (which is relied upon by Steven) was on 23 November 2013 when Steven and Shelley visited Mr and Mrs Browne again at their unit in Sorrento a few days after their funds had been frozen by Rabobank. Steven made a diary note of this meeting: exhibit A, 2588A.

228 Some months prior to this visit, in April 2013, Steven had spoken with Brian Cleland from Rabobank about purchasing Peter's half share of Moganmoganing. At that point in time Peter was interested in selling his half share in Moganmoganing and Steven was interested in increasing the land they farm so as to improve the economy of scale of his and Shelley's farming operation.

229 To make an offer to Peter, Steven wished to increase his and Shelley's borrowings. Steven spoke to Mr Browne in a paddock about increasing the loan facility, secured on Burracoorong. Mr Browne told him he would agree to increasing the loan facility if he agreed to increase the annuity from $18,000 to $34,000, being $10 for each acre. Steven told his father that they would talk about it. Steven could not reach agreement with Peter about the purchase of Moganmoganing and Steven did not discuss the matter further with his father.

230 Dale said sometime before they were locked out of Yargalain, he was with his father and grandfather at a machinery shed on Yargalain. He heard his grandfather say that he wanted his father to pay him $10 an acre for Burracoorong and his father said something like 'the agreement was $18,000 per year. You're not getting $10 an acre': exhibit 11, [49] [51].

231 When Steven and Shelley went to see Mr and Mrs Browne on 23 November 2013, Mr Browne told Steven that he wanted him to transfer $650,000 from the mortgage on Burracoorong to Moganmoganing because he (Steven) would not pay an increase of $16,000 per year to him. (Mr Browne through a letter from his solicitors in August 2013 had by that time excluded Steven from Yargalain and had sent Steven a lease to sign that contained a demand of rent of $34,000 per annum.) Steven asked his father on 23 November 2013 whether he would transfer Burracoorong to him now and told him there were ways that it could be done so that he (Mr Browne) could still make sure that he (Steven) would pay the annual amounts. Mr Browne said that he needed to hold Burracoorong in his name so he had some form of guarantee so he (Steven) would not renege on the annuity payments. He told Steven that by holding Burracoorong in his name, this was his security and that he would only transfer Burracoorong to Steven after he and Mrs Browne died.

232 Steven said to his father that the lease agreement that had been given to him contained a right for Mr Browne to sell Burracoorong and this was one of the conditions that worried them. Mr Browne told him that neither he nor Mrs Browne would attempt to sell Burracoorong.

233 I accept this evidence given by Steven about the representations made by Mr Browne to him in this conversation on 23 November 2013. A summary of each of these matters is contained in a contemporaneous dairy note that Steven made on the day of the meeting: exhibit A, 2588A.

234 The representation by Mr Browne to gift Burracoorong to Steven on Mr Browne's death can only be objectively understood as an irrevocable promise, notwithstanding it can be characterised as a testamentary promise. It is not a promise that could be objectively understood to be a promise to gift Burracoorong, subject to a number of conditions such as subject to the payment of substantial sums to the daughters of Mr Browne. The only condition of the representations and promises made by Mr Browne which went to the payment of any amount on the death of Mr Browne related to the annual payments to Mr Browne and continuing those payments after the death of Mr Browne to Mrs Browne (if he predeceased her).

235 I am not satisfied, however, that there is reliable evidence before me upon which I could properly draw an inference that Mr Browne agreed to gift Steven Burracoorong before his death. The evidence at its highest simply establishes that Mr Browne seriously contemplated doing so in 2001.

Expectation of ongoing support to farm Burracoorong

236 Whilst Steven has farmed Burracoorong in a partnership with Shelley known as SE & SA Browne partnership since 1999, Shelley has left the running of the farm, the financial management and the keeping of records of their farming enterprise to Steven.

237 It is Steven's case that Mr Browne induced an expectation that Mr Browne would support Steven in farming Burracoorong in two particular ways. Firstly, Mr Browne would permit the sharing of necessary infrastructure and secondly, Mr Browne would facilitate the availability of debt funding.

238 Steven says that although these expectations are ancillary to the ultimate promise that Steven would be given Burracoorong upon Mr Browne's death, this inducement was necessarily relied upon by Steven in making life changing decisions to build his life at Burracoorong.

239 Without means to fund his farming operations, Steven argues that he had no way of farming Burracoorong until receipt of the property upon Mr Browne's death. That is, absent assistance to secure debt funding from Mr Browne to farm Burracoorong, Steven could not farm the land in the interim, and fulfil Mr Browne's condition that each son would 'get in the will what you farm'.

240 Mr Browne accepts that he agreed to continue to guarantee Steven's proportion of the existing partnership debts for the term of the existing facility at the time of the split of the partnership and that Steven was given the right of access to Yargalain.

241 Mr Browne did more than that. He continued to guarantee and make security available for Steven's borrowing as it increased to support his continued farming operation. He also facilitated improvements to Burracoorong, including infrastructure, that Steven needed to continue farming after he had been locked out of Yargalain.

242 It cannot be in contest that following the split of the family partnership in 1999, Steven was promised that he could farm Burracoorong independently and at his own expense.

243 At the time of the split of the partnership, the partnership had a debt funding facility with a limit of $750,000. At the end of April 1999, the brothers increased the limit of that facility by $100,000. The increase in liability for that debt was borne by all four sons in accordance with their allocated percentage and the increased debt was secured, inter alia, by the lands owned by Mr Browne, as guarantor. In late 2002, Peter and Steven wished to increase their debt funding to buy Moganmoganing to provide a greater economy of scale to their farming operations. At that point in time, Mr Browne facilitated separate debt funding for each of the sons for their own separate farming operations.

244 Consequently, in December 2002, Mr Browne facilitated funding for Steven and Shelley with Burracoorong as security and an ancillary guarantee for a facility of $650,000, which included $400,000 for the purchase of Moganmoganing.

245 Mr Browne agreed to an extension of that facility by a further $75,000 (bringing the total of the facility to $725,000) in June 2009, so that Steven could repay Mr Browne a debt of $75,000 that Mr Browne requested be repaid: exhibit A, 683 685. Mr Browne had loaned Steven $50,000 to pay for his children's education and $25,000 for a purchase of a front end loader.

246 In March 2010, Mr Browne facilitated the funding for Steven and Shelley by the provision of Burracoorong as security and provided a guarantee for a second Rabobank loan of $400,000, so that Steven and Shelley could buy a seeding machine. This occurred after the altercation between Steven and Mr Browne in 2009, which resulted in Mr Browne ceasing work for Steven.

247 Consequently, by March 2010 Mr Browne had authorised borrowings against Burracoorong for a total sum of $1,125,000. Steven and Shelley later reduced this amount by $100,000, so that at the time of the hearing of this matter Steven and Shelley's debt secured by the guarantee provided by Mr Browne on Burracoorong is $1,025,000.

248 It is accepted by Steven that funding would not be facilitated by Mr Browne in circumstances that put the security at risk or for expenses that would not contribute to the farming enterprise. To use Mr Browne's words, the sons could not expect a blank cheque: exhibit 16, [105].

249 When Paul exceeded what Mr Browne (and, evidently, the bank) considered an appropriate debt to equity ratio, Mr Browne would not facilitate any further borrowing, and arranged for Yarrawindah to be sold to Michael.

250 Nevertheless, it appears that Mr Browne and his sons operated with the working assumption that each of the sons could access the equity in the property they were allocated on standard prudential terms.

251 In an application to Rabobank in February 1999, Steven estimated Burracoorong was at that time worth $3,025,000: exhibit A, 1352, ts 333. It was agreed on behalf of Steven prior to the trial of this matter proceeding that the unimproved value of Burracoorong in 2017 is at least $4.4 million.

252 There is no evidence that Steven has at any time put the security of Burracoorong at risk. It is also clear that Steven has accessed the equity in Burracoorong to enable him to successfully farm both Burracoorong and Moganmoganing.

253 After the partnership split, Steven and Peter shared the use of the infrastructure on Yargalain. This was necessary because Burracoorong had no infrastructure at the time of the split.

254 In August 2013, without notice, Mr Browne denied Steven access to Yargalain. This had the inevitable consequence of depriving Steven the use of the farming infrastructure that he had been using since the split.

255 Following the lock out, Steven incurred significant expenditure in building replacement infrastructure on Burracoorong. Steven's evidence that the building of the fertiliser shed and the shearing shed and yards was undertaken, with the knowledge and acquiescence of Mr Browne.

256 On 27 October 2017, Mr Browne applied under the Freedom of Information Act 1992 (WA) for building and planning documents regarding Burracoorong from the Shire of Chittering. Mr Browne was provided with access to 40 documents which included copies of two applications for planning approval. The first is for a fertiliser shed which contains a statement that the approximate cost of the proposed development less GST will be $35,000. The second is an application for planning approval with a cost of proposed development less GST of $112,000. The first is said to be signed by Mr Browne on 12 December 2013, the second on 20 February 2015.

257 In an affidavit sworn by Mr Browne on 30 October 2017, filed in support of an application made on his behalf for an adjournment of the trial of this matter, Mr Browne stated on oath that:

(a) he does not recall ever being asked to sign, or signing the documents;

(b) he does not recognise his signature on the documents;

(d) the address given on the forms as his, is not his address but rather that of Steven.

258 In the affidavit, Mr Browne deposes that the signatures claiming to be his signature on the two documents are forgeries. He also stated in his affidavit that, if Steven sought to rely on these documents at trial, he had instructed his solicitors to obtain expert evidence to show that his signature was forged.

259 Mr Browne's evidence is that he knew of all the improvements that Steven had made to Burracoorong up until he (Mr Browne) ceased working for Steven at the end of 2009. He said that he never saw any plans for any infrastructure after that time and did not know that the fertiliser shed or the shearing complex had been built until after the building work had been completed.

260 Steven's evidence is that he recognises his father's signature on the application for planning approval to build the fertiliser shed, as he has seen Mr Browne sign cheques, bank documents and carting delivery forms. However, he does not recollect seeing Mr Browne sign the planning approval form for the fertiliser shed.

261 Steven does recall his father signing the application for the shearing shed and sheep yard complex at his parents' unit in Sorrento. He visited his father and bought with him 3D drawings and structural plans for the shearing shed to show his father and saw him sign the application.

262 Whilst Mr Browne vehemently denies that he signed the planning approval applications for the building of the fertiliser shed and the shearing complex, he admits that it was his withdrawal of Steven's access to Yargalain that caused Steven to have to undertake that expenditure: exhibit 16 [115]. When crossexamined, Mr Browne conceded that he knew Steven had to build the shearing shed after he was excluded from Yargalain, as he was hiring a shearing shed (ts 528). Mr Browne also conceded that it cost Steven money to build the infrastructure and this affected his ability to reduce his debt: ts 529.

263 When the building licence application for the shearing shed was put to Mr Browne in crossexamination, which is a document that appeared to be signed by him on 20 February 2015, Mr Browne said that he had never seen the document before and it was 'a good interpretation of his signature'. It was put to him that he might not recall signing this document. Mr Browne said in response, that he definitely knew that he did not sign the document or the other disputed documents, and claimed that he has no memory loss over that short period of time due to his age. This document was also a document which was obtained by Mr Browne from the Shire of Chittering when he made his request for access to planning documents relating to Burracoorong from the Shire. However, this was not a document that he had previously said that he had not signed and was a forgery.

264 Prior to the trial of this matter, Mr Browne's solicitors took steps to obtain an expert opinion from a handwriting expert about whether signatures on the two planning applications were authentic and Steven's solicitors were informed that such an opinion was intended to be obtained. However, after the trial commenced, Steven's counsel became aware that the expert was not going to be called to give evidence on behalf of Mr Browne. Counsel on behalf of Steven then made an application to call vive voce evidence from the handwriting expert, Mr John Alexander McGinn, who had been engaged by Mr Browne to examine the disputed planning application forms.

265 After hearing from the parties I allowed the application on grounds that:

(a) no matter of prejudice had been raised on behalf of Mr Browne;

(b) Mr Browne had squarely raised the issue that the handwriting on two planning applications are not his and are a forgery;

(c) I was satisfied that, as Mr Browne's solicitors had spoken to the expert with a view to obtaining the expert report, it could not be said that Mr Browne would be taken by surprise;

(d) I was not of the opinion that the evidence would be necessarily complex or lengthy; and

(e) I was satisfied that the evidence given by the expert should be able to be given without revealing any matters that were the subject of privilege.

266 Mr McGinn is a recognised forensic document examiner with more than 27 years of continuous experience: exhibit 22. There is no dispute that he is not qualified to give an expert opinion about the documents in question. Mr McGinn's opinion is that, having been provided with samples of the writer's signature, the writer's signature is a moderate to highly complex signature based on the way it is constructed. The complexity of a signature is important. Mr McGinn explained that a simplistic signature could more reasonably be forged.

267 The disputed documents Mr McGinn examined were copies only and not originals. In examining a copied signature, any examination Mr McGinn can conduct is only of the gross features of the signature. He explained that signatures, by virtue of handwriting and the way that they are created, contain both gross and fine detail features. Fine detail features are typically examined under magnification and are quite discreet in the way that signatures and handwriting are formed. Mr McGinn said that when an examination is conducted of a copy of a document no magnification is used, as it is baseless. Consequently, he only examined the gross features of the signature on the copy documents.

268 Having conducted an examination, Mr McGinn's opinion is that the gross features of the disputed documents display the features of the specimen signature model in a gross sense. On the basis of the gross features and the moderate to high complexity of the signature, it is his qualified opinion that the signatures on the disputed documents have been completed by the writer of the specimen signatures. Mr McGinn made it clear that his opinion is extremely qualified because it is in the fine detail of a signature where evidence of matters such as pen lifts and other features that may support an alternative answer would be hidden.

269 I am not satisfied that there is any evidence before me that Steven had taken any steps to procure Mr Browne's signature on the documents or that these documents were forged. In particular, Mr Browne has not begun to meet the significant burden of demonstrating that Steven engaged in a forgery: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362.

270 Whilst the available expert evidence before the court is highly qualified and not conclusive, I am of the opinion that the expert evidence of Mr McGinn is relevant in that it provides some corroboration of the evidence of Steven that the documents were signed by Mr Browne. This is particularly so in relation to Mr Browne's evidence in respect of the development application for the shearing shed, which Steven says he saw his father sign.

271 Mr Browne in the past had facilitated Steven's farming operations despite falling out with Steven.

272 Whilst the relationship between Steven and Mr Browne from late 2013 could be described as poor, it is not in doubt, that in November 2013, Steven and Shelley visited Mr and Mrs Browne at Sorrento and had a functional and constructive meeting. Moreover, Mr Browne had in the past facilitated further borrowings by Steven and Shelley in March 2010 of a further $400,000 within months of an altercation with Steven (just before Christmas in 2009), which resulted in Mr Browne ceasing to carry out any further work at Burracoorong and to have limited contact with Steven and Shelley after that time. In any event, Mr Browne conceded when crossexamined that he did not object to Steven building the fertiliser shed, machinery and shearing sheds: ts 527.

273 Given the unreliability of Mr Browne's recollection of many events, I am satisfied that on the balance of probabilities and weighing all of the evidence, that Mr Browne has simply forgotten that he signed the planning approval and building licence applications in 2013 and 2015.

274 In these circumstances, I am satisfied that the action of Mr Browne to resile from the promise that Steven could use the infrastructure on Yargalain, caused Steven to incur significant infrastructure costs from 2013 to 2016. Further, I am satisfied that Mr Browne encouraged and facilitated the building expenditure by Steven (and Shelley) by signing the Shire of Chittering planning approval and the building licence applications for that infrastructure in 2013 and 2015. Consequently, Steven (and Shelley) were required to incur more debt.

Mr Browne has resiled from representations made to Steven

275 Mr Browne has resiled from the expectations he has induced in that he:

(a) presses a payment of 'rent' to be increased at his unfettered discretion;

(c) says evicting Steven would not be inconsistent with a promise to leave Burracoorong to Steven in his will;

(d) asserts an absolute and unqualified discretion to do as he pleases with Burracoorong;

(e) has stated his intention not to maintain the guarantee in respect of the Rabobank loans and wants the mortgage on Burracoorong discharged;

(f) leaves Burracoorong to Steven on conditions that are not only financially onerous but are expressly contrary to the promises and representations made to Steven by him from at least 1987, until 2013 and at the latest by 2015;

(g) expressing an intention to revoke or alter his testamentary disposition so as to penalise Steven if he fails to honour and respect his wishes; and

(h) expressing a desire to sell or use Burracoorong to secure a loan for funds for him to fund future contingencies if free from Steven's claims.

276 Mr Browne's case is that Steven and Shelley could repay the Rabobank loan secured by Burracoorong, by selling Moganmoganing. Alternatively, if Steven cannot afford to pay his loans himself, Mr Browne will sell Burracoorong and give Steven at least half of the proceeds: exhibit 16 [165], [167].

277 When confronting Steven's case about the withdrawal of Burracoorong as security for his borrowings, it is put on behalf of Mr Browne that the extent of Steven's debt is Steven's problem not Mr Browne's and is Steven's own doing. It is suggested that Steven is a poor businessman who has engaged in a business strategy not to repay Rabobank over time. However, there is no evidence to support the assertion that Steven has chosen not to pay his loans or that he could have paid off his debts earlier. Steven however has made no substantial repayment of his borrowings.

278 I am satisfied that Steven (and Shelley) have had to fund significant infrastructure on Burracoorong, the cost of which in part has been rendered necessary by Mr Browne's removal of Steven's access to Yargalain.

279 In any event, there is some evidence of a reduction in borrowings by Steven and Shelley, in that, in July 2010, they reduced the maximum loan that they could draw down on their Rabobank facility by $100,000, which reduced the facility from $1,125,000 to $1,025,000: exhibit A, 4034.

280 As at 2 November 2017, Steven and Shelley owed $1,022,242.01 on the Rabobank facility: exhibit 2, [61(a)]; exhibit B, 392.

281 On 14 February 2017, Steven received an offer from Peter to sell his half of Moganmoganing for $1.4 million: exhibit B, 341. The offer was rejected by Steven.

282 Steven together with Shelley had purchased Moganmoganing through their family trust company, Burracoorong Pty Ltd in late 2002 so they could make their farming operations more viable, by increasing their arable land.

283 Steven gave evidence about the viability of farming Moganmoganing and Burracoorong together and the costs and decrease in income that his farming operation would decrease by having to sell Moganmoganing. He also gave evidence about the current debts of his and Shelley's farming partnership, his projected income, and costs he will have to incur if he is forced to sell Moganmoganing. This evidence is objected to by Mr Browne on grounds that the evidence given by Steven is opinion evidence, in part speculative and contains conclusion on facts not in evidence.

284 The evidence given by Steven that is objected to is as follows.

285 Steven explained that he farms 300 ha of Moganmoganing. As part of farming Burracoorong and Moganmoganing, Steven rotates crops on a four year cycle so that he can manage nutrition, weed resistance and plant diseases in the paddocks. Over the course of a four year cycle, Moganmoganing makes up a little over 20% of his total cropping area.

286 Steven said that if his farming operation was to decrease by having to sell Moganmoganing, he would have plant and equipment capable of farming a larger farming operation sitting idle for extended periods. He would also have a number of fixed costs that he would incur even though the farming operation was smaller. These costs include insurance on plant, equipment and buildings, licences for vehicles and machinery and wages for Dale who works fulltime in the farming operation.

287 Steven estimates that if he has to sell Moganmoganing to pay out his loan to Rabobank, his income from farming would reduce proportionally by about $225,000 per year. His estimate is based on the assumption that Moganmoganing is about 20% of the arable farming land that he farms and a calculation of the average total income that his farming operation has earnt over the last four years ($1,127,081.25) (reflecting his four year cropping cycle). This average is calculated on the total income for the SE and SA Browne partnership (Steven and Shelley) in the financial years ending 2013 to 2016.

288 In addition to the bank debt owed to Rabobank, Steven has the liability to make a payment of $128,966.23 on 15 December 2017 for a boom spray and $52,072.00 on 19 January 2018 and $162,170.83 on 19 January 2019 for a harvester that he purchased through finance: exhibit 2 [45] and exhibit B, 340A.

289 Steven does not have any other sources of income, Shelley has income from relief teaching from time to time.

290 At the time of the hearing, Steven was arranging to sell 1,050 sheep and wool shorn from those sheep, the proceeds of which will go towards paying his lawyers and the costs of this litigation.

291 It is Steven's practice to use about 10 to 15% of gross turnover to reinvest in plant and equipment so that he can maintain their reliability. Based on his experience of being a farmer since 1976 and the knowledge he has of his farm and the state of the plant and equipment, in the next four to five years he says he will need to buy a farm motorbike, a tray top utility capable of a payload of 1 tonne, a large auger, a field bin, a sixwheeler prime mover truck (second hand) and a trailer for carting grain and fertiliser. He estimates this plant and equipment will cost approximately between $304,000 to $434,000.

292 Steven has a John Deere 8430 tractor purchased in 2009, for $204,500, plus GST. It has 5,500 hours of work recorded on it. Steven says this tractor will need replacing. He has obtained a quote for a replacement John Deere tractor for an amount of $357,000 plus GST: exhibit B, 348.

293 From estimated sales of sheep, wool and grain, Steven estimates he can generate an income of between $958,000 to $973,000 in the next six months.

294 If however he is forced to sell Moganmoganing, then Steven says he will have to sell:

(a) a further 400 wethers (male castrated sheep), which he estimates will net about $36,000;

(b) 660 breeding ewes which he estimates will net about $85,000; and

(c) 500 lambs which he estimates will net about $45,000 because they will not have enough land to keep them and crop the farm too. These amounts would total $166,000.

295 If Steven sells Moganmoganing, and can achieve a sale price of $1.4 million, then he will need to use those funds together with the income that he estimates he is likely to receive (being between $1,124,000 and $1,139,000) to pay, the Rabobank facility, legal fees, any capital gains tax that may be payable on the sale of Moganmoganing, amounts for fertiliser, payments for the boom spray and harvester, arrears interest payment for the Rabobank loan facility, canola seed for the next crop in March 2018, payments to contractors for spraying, swathing and mulesing, supplementary feed, fuel and oil, shearing and sheep expenses, repairs and maintenance of farm machinery, wages for Dale, rent for Dale, rates for Burracoorong, accounting expenses, cartage expenses, expenses for shearing and crutching, spray and chemicals, insurance, licensing, motor vehicle expenses, telephone and power. These amounts have been estimated by Steven by regard to his 2016 financial statements reduced by 20% on the basis that he would not be farming Moganmoganing. These expenses total approximately $2,268,780.24. This amount includes an amount of $18,000, which is due to be paid to Mr Browne in January 2018. This amount does not include an amount for capital gains tax that may be payable on the sale of Moganmoganing.

296 The foregoing evidence of Steven is in my opinion admissible. Steven is a skilled, professional farmer. A necessary component of being a farmer of long standing experience is an understanding of the value of plant and equipment used in farming crops, wheat and sheep and the costs of production. Further, I accept that a skilled professional farmer is able to project income based upon properly kept records of income and expenditure in previous years of farming particular land.

297 The financial estimates and inferences are drawn by Steven from his financial records and from his experience of farming this particular land for over 40 years. Not only is Steven an experienced farmer, but Mr Browne regards Steven as being a very competent farmer. Further, Steven's, estimates are based upon records for which he is well known to be meticulous in keeping. In any event, Steven simply puts forward his evidence as an estimate of future income and expenditure.

298 The purpose of this evidence is for the court to assess whether Steven (and Shelley) would find it difficult to meet their financial commitments, or alternatively be put in a position not to meet their financial commitments, and to continue to farm Burracoorong as a viable business, if Mr Browne is permitted to resile from his promises and representations.

299 The inferences that can be drawn from this evidence is a matter for the court to draw. This evidence is not opinion evidence. Whilst the evidence is put as estimates, those estimates are derived from factual evidence of farming practices engaged by Steven over a lengthy period and factual evidence of income derived from those farming practices. This evidence includes estimates founded upon the cost of production of crops, wool and sheep incurred by Steven in his farming practices which necessarily includes the cost of replacing plant and equipment from time to time, wages and contracting costs.

300 Given his experience, I am satisfied that no specialist knowledge is required to put forward the estimates expressed by Steven.

301 However, as this evidence is simply put forward as an estimate as such, I do not intend to give it the weight that I would give to such evidence if the sale of Moganmoganing had occurred and the expenses and income which was said to be estimated have in fact ensued.

302 Although I cannot give this evidence a significant amount of weight as these figures are merely estimates it appears an inference could be open from Steven's estimates that if Moganmoganing was sold for $1.4 million, that he and Shelley would realise $2,524,000 to $2,539,000 from the sale of Moganmoganing, sheep, wool and grain and once estimated liabilities of $2,268,780 plus $357,000 for a new tractor are deducted that would leave Steven and Shelley with an estimated deficit of approximately $102,000 and $87,000 (rounded). However, this estimate does not take into account living expenses or capital gains tax that may be payable on the sale of Moganmoganing. Whilst a figure for capital gains tax has not been calculated, it could be a substantial sum, as the purchase price of Moganmoganing was $470,000 being half of the $940,000 purchase price, (not including stamp duty or legal costs).

303 In any event, I do not rely upon these inferences. I find that it is not necessary to do so. I accept that Steven has relied upon the expectation of Mr Browne guaranteeing his borrowings, including borrowings to purchase Moganmoganing. This was an investment to facilitate the farming of Burracoorong by creating an economy of scale. If Steven is to sell Moganmoganing to pay the Rabobank debt, he may lose that advantage of scale but, in any event, it is clear he will have no capacity to secure future borrowing on any land.

305 The actions that Steven has taken in reliance on the representations made by Mr Browne have affected every aspect of his life. Steven has farmed Burracoorong since at least the beginning of 1976 (as part of the partnership with his father). Consequently, he has farmed Burracoorong for over 40 years. Burracoorong is his and his family's home. He and Shelly have expended their own money on building, maintaining and improving a substantial home in which they raised their family and continue to live. It is still a home for the family. Their daughter, Lauren, still lives at home. She is an equestrian and is training for the Olympics. Steven built stables on Burracoorong in 2003 to enable her to train her horses at home.

306 It is irrelevant that Steven and Shelley pay no rent to Mr Browne for their house. Firstly, they have constructed, renovated over time and paid for the upkeep of the house. I also accept they paid for the construction of the house partly from Steven's share of the partnership drawings. Secondly, Steven (and Shelley) undertook the largest share of the partnership's debt, being a debt of $270,000. Part of this debt was for the purchase of the retirement home for Mr and Mrs Browne in Perth. Thirdly, Steven (and Shelley) through their own farming enterprise have paid Mr Browne an average of $18,000 per annum since the split of the partnership in 1999.

307 In reliance on Mr Browne's promises, Steven (with Shelley) arranged his affairs on the basis that Burracoorong would belong to him unencumbered on the death of Mr Browne, subject only to the condition that Steven pay an annual sum for living expenses to Mr Browne until his death and that sum to Mrs Browne, until her death (if Mr Browne predeceases Mrs Browne).

308 Plainly, Steven (and Shelley) have relied upon the reasonable expectation that this representation, together with the representation that Mr Browne would provide ongoing support (during his lifetime) by providing access to infrastructure on Yargalain and funding support to Steven and Shelley's farming enterprise would not be departed from. Clearly, Steven was influenced in a significant and material way on the assumption that the representations made by Mr Browne could be relied upon.

309 Further, it is plain that leaving aside departure from the promise to allow access to the infrastructure on Yargalain, the detriment that Steven (and Shelley) would suffer, if Mr Browne is allowed to depart from the promises and representations is substantial. They are likely to lose their home as it appears that they will be unable to continue to farm Burracoorong because:

(a) they will lose any advantages of scale of farming Burracoorong and Moganmoganing together and will have no real property upon which debt can be secured; and/or

(b) Mr Browne may sell Burracoorong or seek to secure a mortgage on the land to obtain funds for his exclusive use (as he has expressed a clear intention to do so).

310 It is asserted on behalf of Mr Browne that Steven has engaged in disentitling conduct such that equity should not grant him relief. Whilst Steven's conduct has contributed to the breakdown in his relationship with Mr Browne, I am not satisfied that Steven should not be entitled to relief. Steven has engaged in significant detrimental reliance since the split of the family partnership with the expectation of owning Burracoorong. Although his conduct towards Mr Browne and Peter may have been such that Mr Browne was entitled to deny him access to the infrastructure on Yargalain, his conduct in my opinion has not been such as to disentitle him of equitable relief.

311 It is argued on behalf of Mr Browne, however, that a transfer of title to Burracoorong and a court declaration of trust, would be disproportionate to the plaintiff's expectation and detrimental reliance. It is pointed out that in Sledmore, relief was refused although the claimant had spent a considerable sum on improvements because he had subsequently enjoyed 18 years free occupation. In Jennings, a promise that the house will 'one day be his' did not lead to a proprietary order, but a money remedy, notwithstanding the claimant had provided personal services to the deceased from 1980 to 1997 on the basis of this promise. The claimant's appeal for the property and its contents failed, because such an award was considered to be disproportionate.

312 It is submitted on behalf of Mr Browne that if Steven is entitled to any relief at all, which is denied, equitable compensation is Steven's correct measure. In particular, Mr Browne claims that when the financial benefits of farming Burracoorong since 1999 are accounted for, the benefit to Steven on his own figures is in excess of $1.8 million. It is said this inference can be drawn as Steven has traded in partnership with Shelley since 1999, making profits. He has acquired a substantial asset in the half that he owns of the very valuable Moganmoganing and Steven has had the benefit of undervalued rent for over 18 years only paying an amount of $18,000 per annum for the use of Burracoorong.

313 A sum exceeding $1.8 million appears to be reached if it is accepted that Steven has been charged undervalued rent for the use of Burracoorong. This amount is reached if the rate of payments per hectare that the Steven Browne Family Trust draws as income (claimed as rent for the use of Moganmoganing) is applied to Burracoorong.

314 The difficulty with this argument as counsel for Steven points out is when considering amortisation, the inquiry centres on the benefit obtained by a plaintiff as opposed to the value of any equity arising. In contrast, when considering proportionality, the question is whether the value of the plaintiff's expectation if enforced is disproportionate to its detrimental reliance.

315 I agree with the submission made on behalf of Steven that it would be inappropriate to find that the costs of infrastructure and improvements to Burracoorong were amortised by a failure to pay rent in the context of a court finding that he had reasonably relied on a promise that he would own Burracoorong, particularly so when it is a farming property. To do so would assume that the detriment suffered by Steven was the cost of the additional infrastructure and improvements to the property, rather than the wellrecognised detriment associated with making life changing decisions in reliance upon a promise of a proprietary interest in land.

316 As recognised by Nettle JA in Donis, balancing the ledger on each side in such circumstance is not called for. As his Honour explained [56]:

... the law of proprietary estoppel is not a manifestation of the concept of unjust enrichment as understood in the law relating to restitution. It is the product of a discrete equitable principle that the conduct of a promisor in engaging a promisee to change his or her position to the promisee's detriment binds the promisor to make good the promisee's expectation. The detrimental reliance which supports the estoppel is, therefore, not to be conceived of as consideration in any sense. It is not a case of quid pro quo and even less one which requires correspondence as between the financial value of whatever may move each way. (footnote omitted)

317 In this matter, if Steven (and Shelley) are deprived of the equity that they have acquired in their home and in the improvements and infrastructure on Burracoorong, the detriment caused is not simply a financial detriment. Steven has spent most of his adult working life farming Burracoorong in the expectation that it would be his. His future detriment cannot be measured and quantified in monetary terms only. In these circumstances, the enforcement of Steven's expectation would not be disproportionate to his detrimental reliance.

318 A submission is made on behalf of Mr Browne that it is galling to him that Steven will inherit Burracoorong after he and Mrs Browne die, but in the meantime Steven will not pay Mr Browne what he has asked him to pay. This submission is not entirely correct. Steven's solicitors wrote to Mr Browne's solicitors, Borrello Legal, on 7 February 2014 with advice that provided that an agreement could be reached that resolves all of the issues identified in the letter, Steven and Shelley will agree to pay $34,000 annually to Mr Browne, in two sixmonthly instalments of $17,000 from July 2013. In the letter Steven and Shelley sought that Mr Browne agree to guarantee an increase in their borrowing with Rabobank to fund the building of infrastructure to replace the infrastructure that they had been using on Yargalain and to enter into a formal agreement recognising the arrangement made in 1999 as to the passing of Burracoorong to Steven: exhibit 18.

319 I do not agree that the factual circumstances in Jennings or Sledmore are applicable or can be applied to this case. Jennings and Sledmore did not involve the circumstances where the expectation of owning a property from which a claimant has derived their income from, for most of their working life.

320 Whilst it is not pleaded, Mr Browne claims his circumstances have changed. Mrs Browne has dementia and Mr Browne is her carer. He wishes to look after her for as long as he can, but he is worried she may need to go into a nursing home at some stage. He does not know when this will be. Mr Browne says he will have to sell or mortgage his property to come up with the money to fund a place for Mrs Browne in a nursing home. Mr Browne says that Mr Crawford has given him advice that he may need to come up with $1 million to place Mrs Browne in a good home. This contention is not only speculative and hypothetical, but it is not supported by any evidence that could be relied upon to assess the cost of a nursing home that provides for dementia care.

321 Mr Browne also says that if Burracoorong is free of Steven's claims while he is still alive, he will use it to borrow money with a mortgage on it and will charge a commercial rent for Burracoorong to fund his borrowing to place Mrs Browne in the best nursing home available.

322 Consequently, it is argued that Mr Browne's circumstances are such that it would be inequitable for him to have to relinquish Burracoorong or be denied its equity because he and Mrs Browne may need funds for aged care and medical expenses.

323 On behalf of Steven it is pointed out that these matters are not pleaded and thus it is not open to Mr Browne to advance these matters and it is said, in any event, that these matters do not assist Mr Browne.

324 Leaving this point aside, it is said that there are two ways that a change in circumstance might be relevant:

(a) first, vicissitudes or a change of circumstance may be relevant to relief; and

(b) second, vicissitudes or a change of circumstance may be relevant to reasonable reliance by Steven upon Mr Browne's promises or assurances.

325 Mr Browne pleads no argument about vicissitudes.

326 However, recognition that a promisor has experienced a change of position because of life's vicissitudes may (if proven) be relevant to the consideration of whether it is unconscionable for a promisor to resile from their promise.

327 Whilst the court is required to consider whether it be unconscionable for the promisor not to be held to their promise, the court can also consider whether it would be unconscionable for the promisor to be held to their promise. Equity can fashion a remedy taking into account both the promisor's change of circumstance and the promisee's accrued equity.

328 In assessing equity and unconscionability, the courts look at what has actually happened, not at what might have happened in the past or what might happen in the future.

329 The difficulty with Mr Browne's evidence is that he has put no admissible or cogent evidence by which the court can draw a conclusion that his circumstances have changed. As pointed out on behalf of Steven, Mr Browne's evidence about what he may have to pay to place Mrs Browne in a nursing home is plainly inadmissible.

330 Mr Browne also gave evidence that he has four daughters that he wants to leave with an inheritance of $1 million each. An objection is made on behalf of Steven that Mr Browne's evidence of his intention in respect of this matter is inadmissible. Leaving aside this objection, such an intention could, in any event, be construed as a further basis from which Mr Browne now seeks to resile from the expectation he had induced, upon which Steven has detrimentally relied. The contemporaneous documents of family discussions leading up to the agreement reached in 1999 to split the family partnership show that Mr Browne had induced an expectation in Steven and his brothers that they could expect the land upon which they farmed and the daughters would be looked after in some other way by the gift of other assets of Mr Browne, such as shares, insurance policies or offfarm assets, including the retirement home. This representation is consistent with all of Mr Browne's wills until 2017. In his 2017 wills he now seeks to make the gift of Burracoorong to Steven conditional upon redistribution of wealth to his daughters in a manner that is inconsistent with Mr Browne's representations made to Steven.

331 Until Mr Browne resiled from his promises to Steven, it is clear that all of the promises and representations made by Mr Browne to Steven were not promises or representations to the effect that he may change his mind in respect of the conditions agreed to in 1999 that were to attach to gift the equity in Burracoorong to Steven.

332 It is immaterial that Mr Browne changed arrangements that he made with Paul and Michael with respect to the Army Block and 521 Acres which are now to be sold to divide the proceeds as part of an inheritance for the daughters.

333 In Mr Browne's witness statementinchief dated 8 October 2017, Mr Browne sets out his financial position in which he records the value of some of his assets. These assets include a house in Ellenbrook valued at $700,000, which has a mortgage debt of approximately $160,000. Mr Browne also owns a house in Bullsbrook, which was at the time of hearing for sale at a price of $470,000. Mr Browne states he has 8,000 Wesfarmers shares, which he had set aside for his daughters' inheritance and says he has sold 3,000 of these shares to pay for this litigation with Steven. He has also sold 1,700 Iluka shares to pay for this litigation with Steven. Mr Browne does not, however, state the value of the Wesfarmers or Iluka shares or whether he has received dividends from those shares. He says, however, that the sale of those shares has resulted in a capital gains event and he does not know what amount that will be. Mr Browne and Mrs Browne have a tax bill of approximately $5,800, which was due at the end of October 2017. He has $54,500 in bank accounts. He also is a joint tenant of the retirement house in Sorrento. No estimate is given of the current value of that property. He has funds for distribution in the Telstar Family Trust account and amounts owing to him under the Indigo Yasmin Brown Family Trust. However, no evidence has been provided to the court about how much those amounts are.

334 In these circumstances where insufficient evidence has been put forward as to Mr Browne's current financial position, I am not satisfied that there is anything that has been raised by Mr Browne, or on his behalf, that would raise an injustice to Mr Browne, or to any third party, if Mr Browne is held to his promises and representations to Steven.

335 In providing relief, when equity has arisen because of conduct of a promisor, the court may define the interest which defines the equity: Vinden v Vinden [1982] 1 NSWLR 618. It is to do what is practically just to make good the expectations and that includes any conditions or crosspromises that attach to the expectations.

336 I am satisfied that the circumstances of this matter are such that good conscience requires that Mr Browne be held to his promises and representations and that the equity raised by Mr Browne's conduct can only be accounted for by granting relief which provides for a clean break.

337 In my view, Steven's equity will be satisfied by the transfer of Burracoorong to him by Mr Browne, subject to Steven paying Mr Browne an upfront amount of $64,000 and ongoing annual payments calculated at $34,000 per annum from 1 July 2017 to Mr Browne until his death and to Mrs Browne until her death, in the event that Mr Browne predeceases Mrs Browne.

338 In my opinion, Steven should be held to the crosspromise that he made Mr Browne that he would pay to him during his lifetime, and to Mrs Browne, if Mr Browne predeceased her, 25% of living expenses of Mr and Mrs Browne. Such living expenses should be quantifiable as reasonable to maintain and support Mr and Mrs Browne in their retirement. Any future assessment of these expenses should not have regard to the diminution of assets of Mr Browne by defending these proceedings.

339 In circumstances where it is conceded on behalf of Steven that an annual sum of $34,000 per annum is a reasonable sum for conveyance of the land, in circumstances where a sum of $18,000 fixed for 25% of living expenses has not been increased for 18 years, I am of the opinion that this is a sum that could be regarded at this present time, and at least since 1 July 2013, as a sum that is a reasonable contribution of 25% of the living expenses of Mr and Mrs Browne. This obligation can be secured by an equitable charge on the farm freehold.

340 I do not consider the demand made by Mr Browne of Steven in August 2017 of $61,000 per annum from 1 July 2017 to be a sum that could be regarded as a reasonable sum of 25% of living expenses for Mr and Mrs Browne. In any event, such a sum was not demanded as such, as it was demanded as rent for Burracoorong.

341 The appropriate relief is to declare that Mr Browne holds his legal interest in Burracoorong on constructive trust for Steven and that Mr Browne is to transfer the freehold of the land to Steven subject to Steven paying Mr Browne $64,000 as a lump sum and from 1 July 2017 $34,000 per annum.

342 The obligation to pay the sum of $34,000 per annum should be capable of review in the future to take account of vicissitudes (if they properly arise). In the event the parties are not able to agree on an amount of any increase in the future, the dispute could be the subject of arbitration by an independent arbitrator.

343 In light of these findings, I am of the opinion that Steven is entitled to the relief sought in [A] and [B] of the reamended statement of claim. Mr Browne's counterclaim must be dismissed.

344 I will hear the parties as to the terms of the declaration and orders I should make.

ATTACHMENT A Development work on Burracoorong 1999

1. On January 26, 27, 28, February 1 - 4, 7 - 8, 19 - 20, 23 and March 2, Steven did fencing work, created a subdivisional fence between paddocks to better manage water.
2. On February 4, 5 and 8, Steven had a dozing contractor construct contour banks in paddocks on Burracoorong to help prevent soil erosion. On those days he did 5 hours, 9 hours and 7 hours respectively.
3. On February 9, Steven had a contractor work for 4 hours clearing the driveway entrance.
4. On February 11, Steven did some fencing work around a new soak in a paddock.
5. On March 15, 18, 25, 26, 27, 29, 30, 31 and on April 1, 3, 4, 5, 6, 7, 10, 11, 16, 17, 18, 19, 20 and 21, Steven worked on putting in a new driveway entrance to Burracoorong.
6. On April 11 and 12, Steven worked on installing a trough to the ram holding paddock.
7. April 23, 24, 25, 26, 27, 28, May 3, 9, 28, 31 and June 5, 6, 7, 8, 9, 10, work was done on track chaining rocks and removing them.
8. Between June 11 and July 15 - rock picking in crops (435 hours).
9. On November 16 - hired a person to work 5.5 hours doing concrete work installing a cattle grid on Burracoorong at the new driveway entrance.
10. On December 12 and 13 - Steven carted and placed 22 truckloads of gravel on the new driveway.

1. January 25 and 29 and then on February 16, 17, 18, 19 and 20, Steven worked on a new boundary fret fence between Yargalain and Burracoorong. Steven split those costs that were incurred with Peter.
2. February - 10 loads of gravel resurfacing Burracoorong driveway entrance.
3. March 14, 21, 22, 23, 24, 28, 29 and 31 - fence realignment
4. April 29, May 2, 5, 7, 8, 14, 15, 16, 20, 21, 22, 25, 26, 27, 31 and June 8 - track chaining rocks and removed them with Borne rock picker (107 loads in total).
5. May 16, 17, 18, 20, 21, 22, 27 and June 7, 11 - had a dozing contractor construct contour banks for erosion purposes (35 hours), totalling $6,650.
6. June 21, 23, 26, August 7, 15 and December 20 - installed water tank (250,000 litre) at the Homestead at a cost of $8,252.
7. July 8 to August 19 - rock picking in crops (377 hours).
8. August 29 - planted 480 eucalypt trees.
9. September 20, 21, 22, 23, 24 and October 2 - cleared paddock using own dozer.

1. February 19, 21, 22 and March 7 - did clearing work.
2. February 27, March 9, 10, 12, 13, 14, 15, 16, 20 and 21 - replaced a fence.
3. March 27, April 2, 4, 9, 10, 13, 14, 15, 16, 19, 20, 21, 22, 26, 28 - installed subdivisional fence (2.2 km).
4. April 8 - installed pressure pump at Homestead.
5. May 8, 12, 19, 20, 27, 28 - track chaining rocks and removed them with a Borne rock picker (64 loads in total).
6. June 17 - August - rock picking in crops (486 hours).
7. October 22, 23, 24, 25 - installed 11,500 litre overhead diesel tank.

1. February 12, 17, 20, 21, 27, March 2, 7, 8, 12, 13, 21, 22, 26, 27, 30, April 1, 2, May 4, 5 - track chaining rocks and removed them with a Borne rock picker (117 loads in total).
2. May 12, 13, 14, 15, 16, 20, 21 - constructed contour banks.
3. July 6 - August 12 - rock picking in crops (498 hours).
4. August 16, 21, 22, 23, 24 - installed subdivisional fence for more efficient use of land.

1. In October to December 2003, Steven hired a person to do some concreting work to for a stable complex and Steven paid Avon Stables to install the stable complex.
2. In November 2004, Steven carted 8 semi-loads of mulch to build a dressage arena.

1. January 29, 30, 31, February 1 - removed a fence line.
2. July 15 - 20, 22 - 25, 29 - 31, August 1 - 3 - rock picking in crops (460 hours).
3. October 6, 9, 12, 13, December 18, 20 - site works for installation of 14.5 m x 7 m Avalon Stable complex.
4. November 6 - construction of Avalon Stable complex.
5. December 23 - concrete flooring to complex (cost of $2,600 GST inclusive).

1. February 1, March 17, 21 - fenced access to stable complex.
2. April 17, 19, 23, 25, 26, 27, 30, May 1, 2, 14, 15, 16 - subdivisional fencing.
3. June 20 - July 7 - rock picking in crops (382 hours)

1. June 12 - July 13 - rock picking in crops (258 hours).
2. December 6 - cleared land, included 8 hours with a dozing contractor using an International TD25 dozer.

1. March 23, 24, 25, 26 - clearing.
2. March 29, April 1 - installed 25,000 litre poly tank at the stable complex.
3. April 8, 9, 14, 15, 19 - erosion control - filled in an old gravel pit (26 semi-loads of gravel).
4. July 9 - August 28 - rock picking in crops (401 hours).

1. March 13, April 15 - clearing.
2. March 22 - constructed contour bank for erosion control purposes.
3. June 1, 3 - 9, 10, 14, 18, 20, 21, 22, 23, 24, 25 - rock picking in crops (275 hours).

1. June 9 - June 20 - rock picking in crops (281 hours).
2. July 26, 30, 31, October 11, 15, 25 - did clearing with a dozing contractor (59 hours at $230 per hour plus GST equals $14,927).
3. August 28, 29, September 4 - replaced a boundary fence. Shelley and Steven paid for 0.8 km and J Rose (a neighbour) paid for 0.8 km.

1. March 13, 14, 16, 17, 18, 19, 20, 25, 26, 27, 28, May 2, 4, June 4 - did clearing using own dozer, loader and truck.
2. March 29, 31 April 1 - 12, 16, 20 - 24, 29, May 3, 4, 8 - 11, 14, 15 - removed 106 semi-loads of rocks.
3. April 13, 23, 25, 26, May 8, 16 - removed 19 semi-loads of rocks.
4. April 23, 25, May 21, June 1 - did clearing and cleaned up new ground.
5. June 16 - August 29 - rock picking in crops (610 hours).

1. June 14 - July 18 - rock picking in crops (94 hours).

1. June 2 - installed 25,000 litre poly tank with 2.4 m poly trough.
2. June 8, 9, 11, 24, 25, 26, 27, 28, July 1, 2, 3, 8, 10, 16, 17, 19, 20, 22, 25, 26, 30 - rock picking in crops (149 hours).
3. June 9 - 14 - did a cleanout and enlarged dam using a contractor (35.5 hours at $360 per hour plus GST equals $14,058).
4. June 9 - 14, June 15 - 17 - did a cleanout and enlarged dam using a contractor (29 hours at $360 per hour plus GTS equals $11,484) plus delivery of $2,300.
5. October 7, 9, 14, 17, 21 - installed 3600 bushel elevated silo + 2 silo pads, hired a person to do the concreting work (16 m³) and a contractor for the 3600 bushel silo ($14,289).

1. Work started on the machinery shed/workshop in November 2012 where Steven paid a dozing contractor to do some site works in preparation.
2. The following works were done during 2013:

(b) April 6 - 10, 12, 14 - 16, 18, 20 - erection of shed by a contractor ($15,588.90);

(c) April 23 - work done on sand pad (42.15 tons) ($527.17);

(e) April 29, 30 - hired a person to dig trench for power connection to the machinery/workshop shed (13 hours);

(f) May 6, 7, 8, 9, 16 - a contractor did power and electrical work for the connection of power to the machinery/workshop shed;

(g) May 1, 2 and 3 - hired a person to concrete of the workshop floor;

(h) September 26 - hired a person to do some trench work for water pipes to connect water supply to the machinery/workshop shed; and

(i) September 29, October 31 - water was connected to the machinery/workshop shed.

1. In 2014, work was done to extend the machinery shed/workshop on February 10, 11, March 23, 24, 26, April 14, 15, 22 and 30.

1. January 30, 31, February 1 - cleanout dams using a contractor. 3.3 hours at $420 an hour for the work done in paddock 13 (old paddock 23) and 6.6 hours at $420 an hour for the work done in paddock 6 (old paddock 36).
2. February 22, 29, March 4 - removed the boundary fence.
3. March 8 - 10 - erected 850 metre fence.
4. March 16 - removal and clean up of internal fence.
5. March 19, 22, 27 - erected 440 metre fence.
6. June 13, 14, 20, 21, 22, 26, 27 - rock picking in crops (52 hours).
7. September 11, 12 - Hired a person to do concrete work in the horse stables.
8. September 24 - Connection of power to the stable complex.
9. September 24 - NBN Satellite Broadband installed, together with external aerial connections.
10. October 2 - installed 3600 bushel, DE Engineers elevated silo ($14,872).
11. October 11 - installed 2.4 m Rapid Plastics Poly Trough.
12. October 16 - installed 25,000 litre Rapid Plastics Poly tank at homestead.
13. October 30, 31 and November 1, 2 - Hired a dozing contractor to do clearing work.
14. November 4, 7 - water supply connection from soak to tank and trough.

1. March 12, April 17, 18, 22, 23, 24 - track chaining rocks and removal. 44 loads of rocks removed from paddock with Bourne rock picker.
2. March 12, 17, 18, 19 - removed contour bank (7 semi-loads of rocks).
3. March 20 - stockpiled clay soil for treatment.
4. March 29, 30, May 1 - track chaining rocks and removal. 30 loads of rocks removed from paddock with Bourne rock picker.
5. April 18, 19 - installed subdivisional fence
6. April 23, May 9, 11 - installed 250,000 litre Pioneer Galaxy GT250 water tank at machinery/workshop shed.
7. May 24 - 27, June 3, 4 - 500 m of subdivisional fencing.
8. June 10 - July 10 - rock picking in crops (261 hours).
9. June 11, 12 - removed old fence.
10. July 19 - 26, 30, August 5 - cleared boundary fence line.
11. August 6 - 7 - Dozing contractor cleared boundary fence line.
12. August 13 - 14 - constructed contour banks for erosion.
13. August 23 - 24 - clearing work with the dozer contractor (1 hour of his time) and cleaning up with loader.
14. August 30, September 2 - moving 40 ft storage container onto Burracoorong.
15. September 13, 18, 24 - site work hired a person for installation of 3 silos.
16. September 19 - concrete work for 1 silo pad.
17. September 25 - concrete work for 2 silo pads.
18. October 14, 15, 16, 17, 18 - cleared boundary fence line. Burned heaped timber.
19. October 30 - installed 2.4 m poly trough.
20. November 7 - installed silos - 1 x 3600 bushel DE Engineers elevated silo at $16,060.

1. In 2014 work started on the construction of a fertiliser shed.
2. The following works were done during 2014:

(b) March 24, 26, April 1, 14, 24, 25 - erection of fertiliser shed by a contractor;

(c) April 3, 4, 7 - 11, 14 - 17, 21, 23 - Hired a person to do the concrete work ($34,100);

(d) April 17, 28, 29, May 1, 2, 6, 7 2, 6, 7, 12, 13, 14, 31. - Hired a person to do work on the loading platform, retaining wall and fertiliser shed.

1. February 12, 13, 19, 20, 24, 25 - cleaned up fence line.
2. March 4, 5, 6, 7, 8, 13, 14, 16, 17, 18 - direction of 2,000 m fence.
3. March 3, 17 - installed 11,500 litre overhead diesel tank.
4. March 11, 12 - developing water supplies using contractor at a cost of $2,880 (4 tonne excavator).
5. March 19, 20, 21 - transferred the excavated dirt from soak to gully.
6. March 27, 28, 31, April 1, 4, 7, 9, 12 - clearing.
7. May 28 - June 27 - rock picking in crops (118 hours).
8. July 19 - tree planting.
9. September 3, 4 - road access upgrade using rock aggregate for road base across wet area.
10. September 9 - trickle irrigation of trees.
11. September 12 - installed gateway Burracoorong driveway entrance.

1. In 2015 work started on the construction of a shearing shed and sheep yard complex on Burracoorong.
2. The shearing shed is about 20 m by about 60 m.
3. The following works were done during 2015 and 2016:

(a) February 18 - 21, March 2 - 4 - The dozing contractor did 26.5 hours of dozing work for site preparation at $270 per hour.

(b) March 16 - 18 - Hired a person to do work on the shearing shed - backfilling and compacting.

(c) March 19 - 27, 30, 31, April 1 - 3 - Hired a person to do work on the retaining wall for the sheep complex site.

(d) April 13 - Hired a person to do further top wall backfill and compaction work for six hours.

(e) June 6 - Contractors did 8 hours of site work for work to the sheep complex and fertilizer and machinery sheds site works.

(f) 27, 30, July 1, 4 - 6, 10, 16 - Hired one contractor ($24,933.30) and hired another contractor to construct the shed ($130,479.30).

(g) July 13, July 22, 23, 24 and August 25 - installed 250,000 litre Pioneer Galaxy GT250 tank (irrigation contractor - $14,802, Shed to tank downpipe connection cost $600).

(h) July 23, 27, 29 - Hired a person to do 5 hours digging for power supply cable.

(i) July 29, 30, August 31, September 21, December 15-18 - An electrical contractor did power and electrical work.

(j) July 24, 30, December 11 - connected water supply to sheep complex.

(k) August 19 - site works (final trim) done by a contractor ($1,067).

(l) August 23, 31, September 1 - 18, 25, October 2, 10-13, 28-30, November 2, 6 - Hired a person to do the shearing shed internal fit-out works.

(m) September 2, 3, 4 - Hired a ditchwitch to dig 162 holes for the sheep yards.

(n) September 5, 7, 10, 11, 23, 24, 27 - 30, October 1, 5, 23, 24, 29 - assembled the sheep yards.

(o) September 29, 30, October 7, 8 - erected Stocksafe T (fence).

(p) October 20-23, 26-28 - Hired a person to do the concreting work (63.8 cubic metres).

(q) October 21, 28 - Contractors did concrete work.

(r) December 2015 - 24, 25 - The dozing contractor did another 6.5 hours site works.

(s) December 31 and January 2-3 - erected 100 m Stocklock gates.

(t) April 18 and 19 - Hired a grading contractor to do more site works (final trim).

(u) July 29, August 9 - tree planting feedlot buffer zone.

(v) October 13, 16, 17, November 3, 4, 7, 9 - extended fencing (470 m plus 3 x 4.7 m gates).

(w) November 11 - trickle irrigation of trees feedlot buffer zone.

(x) November 12, 13 - work done on supplying horse holding yard with power from the workshop.

1. February 16, 17 - clearing using the dozing contractor for 7.5 hours at $270 per hour = $2,025.
2. March 30 - clearing fence line and gully using the dozing contractor at $270 per hour = $945.
3. April 1 - clearing fence line and gully using the dozing contractor for 1 hour = $270.
4. March 30, April 11, 15, 16, 17, 18, 19, 20, 21, 27 - 30, May 1, June 8 - 11 - clearing.
5. May 5 - 7, 12, 14 - 17 - direction of 400 m fence.
6. June 24, 25, 26, 29, 30, July 1 - 4, 6, 7, 8, 21 - rock picking in crops (103 hours).

1. March 2, 3, 5, 12, 28 - track chaining rocks and removed them with Borne rock picker.
2. March 28, 29, 30, 31, April 1, 4, 6, 7, 10 - clearing and clean up.
3. May 18, 19, 20, 24, 25, 26, June 2 - 4 - fencing (800m in total).
4. June 23, 29, 30, July 1 - fencing horse paddock (450m).
5. June 6, 7, 14 - 17 - rock picking in crops (50 hours).
6. July 20 - installed 2.4 m plight trough in the horse holding paddock.
7. July 29, August 9 - tree planting.
8. August 10 - 12, 26 - September 5 - removed old fence line between Yargalain and Burracoorong.
9. September 7 - 9, 12 - 15, 19 - direction of 1,000 m boundary fence.
10. October 4 - 5 - constructed a laneway entrance to the sheds.

1. January 30 - 31, February 1 - installed shade sails in three horse paddocks.
2. April 7 - 9, 12 - 15, 17 - 20, May 5, 8 - 17 - track chaining rocks and removed with Borne rock picker (total of 187 loads).
3. June 19 - August 7 - rock picking in crops (134 hours).

CITATION : BROWNE -v- BROWNE [No 2] [2017] WASC 375 (S)

Practice and procedure - Application for indemnity costs - Calderbank offer - Not unreasonable to refuse offer - Claim for special costs orders - Legal Profession Act 2008 (WA) - Whether scale limit should be removed for particular items - No new principles - Turns on own facts

Legal Profession (Supreme Court) (Contentious Business) Determination 2016 (WA), items 1(c), 7(b), 17, 20(a), 20(b), 20(d)

Browne v Browne [No 2] [2017] WASC 375

Calderbank v Calderbank [1975] 3 All ER 333

Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66 (S)

Eccles v Koolan Iron Ore Pty Ltd [2013] WASC 418 (S)

Eclipse Resources Pty Ltd v The State of Western Australia [No 2] [2015] WASC 137

Electricity Generation and Retail Corporation Trading as Synergy v Woodside Energy Ltd [2014] WASC 469 (S)

Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115

Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S)

McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 (S)

Mentha As Receiver and Manager of Westgem Investments Pty Ltd (in liq) v Hughes as Liquidator of Westgem Investments Pty Ltd (in liq) [2014] WASC 478 (S)

Pourzand v Telstra Corporation Ltd [2012] WASC 210 (S2)

Santos Offshore Pty Ltd v Apache Oil Australia Pty Ltd [2015] WASC 242 (S)

The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd [No 2] [2014] WASC 345 (S)

The facts of the substantive matter that are relevant to the application for indemnity costs and a special costs order

1. The plaintiff, Steven Browne, is one of four sons of the defendant, Mr Browne. Mr Browne is the registered proprietor of a number of farming properties which Steven and his brothers have solely occupied to conduct their own farming operations. The property occupied by Steven is Burracoorong.
2. Until early 1999, Steven had been a partner in a farming partnership with Mr Browne, Mrs Browne and his brothers.
3. Steven's claim was that at various times from 1975, Mr Browne promised him that he would gift Burracoorong to him before, or upon the death of Mr Browne or upon the death of Steven's mother, Mrs Browne, and Mr Browne thereby induced an assumption to that effect.
4. In early 1999, Steven, Mr and Mrs Browne and Steven's three brothers entered into an agreement to split the farming partnership. It was not in dispute that part of the agreement was that Steven would be entitled to conduct his own farming business on Burracoorong (which initially excluded one paddock), Mr and Mrs Browne would leave the partnership, and Steven would pay $16,000 per annum to Mr Browne (being his contribution to an amount the brothers agreed to pay to their parents).
5. By 1999, Steven claimed that Mr Browne had induced an assumption by him (Steven) that:

(a) Mr Browne would gift the land that Steven farmed, namely Burracoorong, to Steven;

(b) Steven would farm Burracoorong, henceforth independently, at his own expense;

(c) Mr Browne would support Steven's farming by allowing Steven access to infrastructure on Yargalain (another of Mr Browne's farming properties which was farmed by his brother Peter); and

(d) by facilitating Steven's borrowing by permitting the use of the partnership's existing funding facility.

1. Until early 2015, Mr Browne facilitated Steven's improvements to Burracoorong and made Burracoorong available to Steven and his wife as security for borrowings for their farming operations.
2. By mid2013, the relationship between Steven and Mr Browne had begun to break down. In August 2013, Mr Browne demanded Steven sign a lease for Burracoorong for a term of 10 years with an option for a further term of 10 years, a base rent of $34,000 per annum with a reservation to Mr Browne of a right to sell.
3. On 12 August 2013, Mr Browne excluded Steven from access to the farming infrastructure on Yargalain. On 12 November 2013, Mr Browne informed Steven's bankers, Rabobank, that he required the bank to remove Steven's and his wife's mortgage over Burracoorong. By 20 November 2013, Mr Browne withdrew his instructions to Rabobank and the bank was informed Mr Browne would continue to honour his commitments under the current funding arrangements.
4. As a result of being denied access to the infrastructure on Yargalain, Steven constructed a fertiliser shed and a shearing shed and yards on Burracoorong. Steven's evidence was that Mr Browne had signed an application for planning approval for the development and construction work on 12 December 2013 and for the shearing shed on 20 February 2015.[1]
5. On or about 1 June 2017, Mr Browne refused to acknowledge his promise that he would give Burracoorong to Steven and refused to continue to guarantee Steven's borrowings (beyond the expiry of the current funding arrangement on 2 January 2018).
6. On or about 4 August 2017, Mr Browne demanded an increase in annuity (or rent) from Steven of $61,000 per year, commencing on 1 July 2017 and reserved his right to evict Steven from Burracoorong if Steven did not pay the sum of $64,000 by 11 August 2017.
7. On 4 August 2017, Mr Browne executed a will in which the conditions that attached to Steven's entitlement to Burracoorong, via testamentary trust, were inconsistent with the promise and were illusory because Steven's entitlement to Burracoorong was expressly irrevocable and the will required the payment of an amount that Steven was unable to pay.[2]
8. Steven claimed his reliance on the induced assumptions was to his detriment and sought relief in equity in a claim in proprietary estoppel created by encouragement by the owner of land as to the future acquisition of property.
9. Mr Browne pleaded that the asserted promise was vague and that in any event, the promise was executory and no estoppel would lie in aid of an executory promise.
10. Mr Browne's answer to Steven's case was that it was a term of the agreement reached with Steven (and the brothers in 1999) that, among other conditions:

(a) each of the brothers would use the land allocated to them;

(b) Mr Browne retained ownership of his land absolutely;

(c) Mr Browne was entitled to vary the allocation of the land at his absolute discretion;

(d) for as long as the brothers used the land they would each pay an amount to Mr and Mrs Browne until both of them died. The amount was to be determined by Mr and Mrs Browne at their absolute discretion, relative to their needs and obligations, and $16,000 per annum were initial amounts;

(e) Steven was given the right to access across Yargalain provided he equally bore the costs of electricity and maintenance during shearing seasons with Peter;

(f) Mr Browne agreed to continue to guarantee the existing debts of the partnership for the term of the guarantee and could, at his absolute discretion, agree to guarantee further loans; and

(g) provided the brothers individually complied with their obligations pursuant to the agreement, both Mr and Mrs Browne would make a will which provided that, upon the death of both of them, such of the brothers who had complied with the agreement would be given the land of which they had used.

1. Mr Browne counterclaimed that pursuant to the income discretion clause of the 1999 Agreement, Steven owed Mr Browne increased payments of $34,000 per annum, retrospectively from 1 July 2013 and $61,000 per annum from 1 July 2017.
2. In the alternative, Mr Browne claimed Steven owed him reasonable rent as a tenant at sufferance at the market rate of rent payable by lease holding farmers in the vicinity of Burracoorong.
3. In my reasons for decision in Browne v Browne [No 2][3] I found the evidence given by Mr Browne generally unreliable. In particular, I found his memory of events to be unreliable which could be caused by his advancing age or his partiality. I also found that he was not a person who paid meticulous regard to important documents signed by him.
4. Although I did not accept that Mr Browne agreed to gift Burracoorong to Steven before his death, I found it was agreed by Mr Browne that when the partnership split in 1999, Steven was to be gifted Burracoorong in Mr Browne's will and that this promise was made as an irrevocable promise, subject only to annual payments to Mr Browne or to Mrs Browne if Mr Browne predeceased her. I also found that:

(b) Steven and his wife had relied upon a representation by Mr Browne that Mr Browne would provide ongoing support (during his lifetime) by providing access to infrastructure on Yargalain and funding support to Steven and his wife's farming enterprise;

(c) Mr Browne had departed from the promise and representations to Steven; and

(d) if Mr Browne is allowed to depart from the promises and expectations, Steven and his wife would substantially suffer. They would likely lose their home and it appeared that they would be unable to continue to farm Burracoorong.

1. I also found the annual sum of $16,000 (subsequently increased to $18,000) to be paid by Steven, was an amount that was fixed as income to cover the living expenses for Mr and Mrs Browne in their retirement.
2. In these circumstances, the annual payments could not be characterised as rent and as such Mr Browne's counterclaim failed.
3. Following the publishing of reasons in Browne v Browne [No 2][4] I made the following orders in favour of Steven:

(a) A declaration that Mr Browne holds his legal interest in the property known as Burracoorong on trust for Steven.

(b) On the condition that Steven pay Mr Browne the sum of $64,000, Mr Browne is to forthwith deliver up a signed transfer of Burracoorong to Steven and will do all things reasonably necessary on his part to effect that transfer.

(c) Steven is to pay Mr Browne or if Mr Browne is deceased, Mrs Browne, no later than 31 January of each year a lump sum of $34,000, representing 25% of Mr Browne's and Mrs Browne's reasonable and quantifiable annual living expenses for each financial year commencing 1 July 2017.

1. I also made orders dismissing the counterclaim.

1. There is no dispute that Mr Browne should pay Steven's costs of the action. The question is whether those costs should be taxed on an indemnity or a partyparty basis. If the costs are to be taxed on a partyparty basis, Steven seeks costs of the action without reference to the limits provided in items 1(c), 7(b), 17 and 20(a), (b), and (d) of the Legal Profession (Supreme Court) (Contentious Business) Determination 2016 (WA) (2016 Determination) pursuant to s 280(2) of the Legal Profession Act 2008 (WA).

1. Steven made a number of offers to settle his dispute with his father, Mr Browne, prior to the commencement of the proceedings and a Calderbank offer[5] was made shortly before the trial of the action.
2. Steven submits as his primary position that the court should exercise its discretion and order that Mr Browne indemnify him for his reasonably incurred costs of the action. Alternatively, Steven seeks an order that the plaintiff's costs should be taxed without reference to the scale, until the plaintiff's offer of 24 October 2017 was rejected and thereafter, on an indemnity basis.
3. The relevant principles which govern the exercise of the court's discretion in the context of a Calderbank offer were set out by Buss JA in Ford Motor Company of Australia Ltd v Lo Presti.[6] In Eccles v Koolan Iron Ore Pty Ltd[7] Le Miere J summarised the principles explained by Buss JA in the following way:[8]

(1) a Calderbank offer will not justify an award of indemnity costs unless its rejection was unreasonable;

(2) all of the relevant facts and circumstances must be considered in determining whether a party's rejection of a Calderbank offer was unreasonable;

(3) the mere fact that the recipient of a Calderbank offer is ultimately worse off than he or she would have been had the offer been accepted, does not mean that its rejection was unreasonable;

(4) whether conduct is reasonable or unreasonable always involves matters of judgement and impression;

(5) it is not possible nor desirable to enumerate exhaustively all circumstances which must be taken into account, in a particular case, in deciding whether the rejection of a Calderbank offer was unreasonable, but, ordinarily, regard should be had to, at least, the following:

(a) the stage of the proceeding in which the offer was received;

(b) the time allowed to the offeree to consider the offer;

(d) the offeree's prospects of success, assessed as at the date of the offer;

(e) the clarity with which the terms of the offer were expressed; and

(f) whether the offer foreshadowed an application for indemnity costs in the event of the offeree's rejecting it;

(6) the party who makes a Calderbank offer that is rejected bears the onus of satisfying the court that it should make an award of indemnity costs in his or her favour; and

(7) the standard to be applied in awarding indemnity costs should not be allowed to diminish to the extent that an unsuccessful party will be at risk of an order for costs assessed on an indemnity basis absent some blameworthy conduct on its part - a test of unreasonableness should not be upheld on other than clear grounds.

1. In August 2013, Steven received a letter from Mr Browne's solicitors attaching a draft lease to sign. The draft lease contained among other conditions, a base rent of $34,000 per annum payable by annual instalments of $17,000 each on 1 July and 1 January during the term of the lease, which was said to commence on 1 July 2013.
2. In February 2014, Steven by his solicitors sent two letters attempting to settle the dispute concerning payments to Mr Browne and Steven's tenure on Burracoorong.
3. The first letter is dated 7 February 2014 and was tendered into evidence in the proceedings at first instance.[9] It communicated the willingness of Steven to compromise to reach agreement which, Steven says, if accepted would have avoided the need for the proceedings.
4. In a second letter dated 19 February 2014 Steven offered to settle the dispute between him and Mr Browne as follows:

(a) Steven and his wife would pay Mr Browne $34,000 per year, payable in January;

(b) Mr Browne would continue to guarantee the loan facility that Steven and his wife have with Rabobank to $1,050,000 (for the life of the loan and as extended for any new loan for the same amount from time to time), and agrees to maintain a mortgage over Burracoorong; and

(c) Mr Browne will formally acknowledge that Burracoorong would be left to Steven, consistent with the arrangement reached in 1998 (provided that annual payments to Mr Browne are made and that Steven and his wife can continue to farm Burracoorong in a commercially viable way).

1. Steven's offer imposed no time limit for acceptance.
2. This offer was rejected.
3. It is contended on behalf of Steven that the rejection of this offer by Mr Browne was not reasonable in the circumstances because Steven's offer provided Mr Browne with the substance of what he was seeking (ie security of payment, security of ensuring that Steven must not get into financial difficulty), without the overriding of Steven's existing rights that signing a lease would have involved.
4. Steven commenced these proceedings by a writ of summons filed in the court on 26 June 2017.
5. By letter dated 24 October 2017, Steven made an offer to settle the matter as follows:

(a) Mr Browne retain the ownership of Burracoorong, and be paid $34,000 for the 2017 2018 financial year with annual CPI increases; or

(b) Burracoorong be transferred to Steven but with an obligation imposed on Steven to pay the sum of $500,000 to Mr Browne in instalments.

1. It was also a condition of each alternative offer that Steven would agree to an order that the proceedings be dismissed and to an order that he pay Mr Browne's taxed costs of the proceedings and that there would otherwise be no order as to costs.
2. Steven's offer remained open for acceptance by Mr Browne until close of business on 27 October 2017. It was made as a Calderbank offer. In the letter it was stated that in the event that Mr Browne rejects the offer and Steven achieves the same or a better outcome, Steven will rely upon the letter containing the offers in support of an application that Mr Browne pay his costs on an indemnity basis, from the date of the offer.
3. The 2017 October offer was expressed to be open for a short time. However, the parties had attended mediation and concluded negotiations in midSeptember 2017. The offer was made at an advanced stage of the proceedings (13 days before the commencement of trial). The parties had already filed their evidenceinchief. At that time, Mr Browne was in possession of the evidenceinchief to be called by Steven at the hearing to assess that evidence against his claims and his defences.
4. The 2017 October offer involved significant compromise on Steven's behalf. The offer involved no material compromise from Mr Browne because:

(a) he would receive a greater financial return than what he had been seeking from Steven, and was seeking from him in his counterclaim by way of 'rent';

(b) he had not been paying any costs associated with owning the property and that would remain the case; and

(c) Steven would be the owner, which on the evidence as to the 1999 arrangements was what Mr Browne had originally intended (and indeed up until 2013 was what he still unequivocally intended).

1. I also accept that the 2017 October offer set out in clear and unambiguous terms with reference to Mr Browne's own evidence as to why Mr Browne would not be successful in his defence and the prosecution of his counterclaim.
2. I am also satisfied that it is clear that the outcome for Mr Browne at the trial was significantly less advantageous to him than either of the alternatives put in the 2017 October offer.
3. The sole issue for determination is whether the rejection of the 2017 October offer by Mr Browne, at the time the offer was made, was in the circumstances unreasonable.
4. Immediately after the offer expired, Steven sought to amend his statement of claim to raise two new issues which, on the facts that were ultimately found in the substantive hearing of Steven's claim, strengthened Steven's case.
5. On 31 October 2017, an order was made allowing Steven to file a reamended statement of claim by 1 November 2017. Amendments were also sought by Mr Browne to his counterclaim. After counsel for the parties conferred, Steven did not oppose the order sought by Mr Browne.
6. The first amendment to the statement of claim that is material to the claim for indemnity costs is a pleading that on 12 December 2013 and 20 February 2015 Mr Browne facilitated development and construction work on Burracoorong by signing development applications submitted to the Shire of Chittering.
7. Mr Browne claimed the signature on the documents in question were forged.
8. I allowed the amendments after finding that as Mr Browne had notice of the issue since 5 October 2017, Mr Browne could not be said to be taken by surprise by the amendment.[10]
9. The second relevant amendment to the statement of claim related to the terms of the will executed by Mr Browne on 4 August 2017 in which Steven's entitlement to Burracoorong, via testamentary trust, was expressly revocable and subject to a number of conditions which included payments to his sisters totalling $1.2 million.[11] I allowed the amendments as they raised discrete issues which related solely to the terms of the will, and the disposition of those amendments turned on only the express terms of the document and did not raise an issue going to the circumstances of the making of the will.
10. The terms of this will were found in the trial to be evidence that Mr Browne had resiled from the expectations that he had induced by his promises.[12]
11. For the purposes of determining whether the rejection of the October 2017 offer was unreasonable, it is relevant to consider the matters pleaded, the nature of the evidence and the manner in which the trial was conducted.
12. The trial was expedited and was heard for five days from 6 until 10 November 2017 (less than six months after the writ was filed in the court).
13. Steven and Mr Browne's case were substantially founded upon evidence of communications between each other and the other brothers.
14. Steven's case also relied upon documents which recorded matters discussed at family meetings including at least one contemporaneous record Steven made of a conversation between himself and Mr Browne.
15. Whilst there were contemporaneous records of discussions at family meetings that led to the 1999 agreement there was no document in existence that clearly set out the terms of the 1999 agreement. However, there were matters recorded in the notes of family meetings and letters recording discussions between family members that supported Steven's case.
16. Whilst it appeared that Steven had a strong case in the event that his version of events was to be accepted, prior to trial it was not certain that much of Mr Browne's evidence would not be accepted. I did not find Mr Browne to be a dishonest witness but I rejected critical aspects of his evidence.
17. At the time the 2017 October offer was made it was anticipated by Mr Browne that expert evidence may bolster his claim that Steven had forged the 2013 and 2015 planning documents (to build infrastructure on Burracoorong after access was denied to Yargalain). An expert subsequently examined the documents after Mr Browne had rejected the offer. It only emerged at the trial that the expert evidence did not support Mr Browne's evidence and Mr Browne's memory was found to be faulty.
18. Disbelief of a party's witnesses, or rejection of the evidence of a party him or herself, does not as a matter of principle provide a sufficient basis for the award of indemnity costs.[13]
19. The power to award indemnity costs is exceptional in character. There must be some special or unusual feature to justify departure from the ordinary practice of awarding partyparty costs.[14]
20. In circumstances where:

(a) the acceptance of Steven's case turned to a large degree on the assessment of his credit as a witness and rejection of Mr Browne's case substantially turned upon grounds of his credibility; and

(b) material amendments were made to the statement of claim after the 2017 October offer was rejected;

I am not satisfied that the rejection of the October 2017 offer was unreasonable.

1. For these reasons, I am not satisfied that the court should make an award of indemnity costs in favour of Steven.

Is the discretion to make a special costs order enlivened and should an order be made?

1. Section 280(2) of the Legal Profession Act provides that a court may make a special costs order where it is of the opinion that 'the amount of costs allowable in respect of a matter under a costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter'.
2. The court must form an opinion about two matters before it can make an order under s 280(2). First, it must form an opinion that the costs allowed by the applicable legal costs determination are inadequate and second, it must form an opinion that the amount allowed is inadequate because of the 'unusual difficulty, complexity or importance of the matter'.
3. If those preconditions are met then the court may do all or any of the following:

(a) order the payment of costs above those fixed by the determination;

(b) fix higher limits of costs than those fixed in determination;

(c) remove limits on costs fixed in the determination; and

(d) make any order or give any direction for the purposes of enabling costs above those in the determination to be ordered or assessed.[15]

1. An assessment of whether an amount of costs allowed in respect of a matter under a legal costs determination is inadequate is not to be determined by the court in a precise way. Martin CJ in Mentha v Hughes explained:[16]

The principles governing the exercise of the powers conferred upon the court by s 280(2) of the Act are well established. The discretion conferred by the section can (but need not) be exercised if the court is of the opinion first that the amount of costs allowable in respect of a matter the subject of a cost determination is inadequate, in the sense that a limit or other amount imposed by the determination would preclude the presentation of a fairly arguable case for the allowance of costs at a greater amount and second, that the inadequacy arises because of the unusual difficulty, complexity or importance of the matter.

When a party moves for an order pursuant to s 280(2) of the Act, the questions arising under the section are addressed as matters of impression rather than science or mathematical precision. In some cases it will be necessary to adduce evidence to enable the formation of the requisite opinion. However, in other cases, a court might be able to form the necessary opinion from its knowledge of the case and its circumstances. Moreover, it must be remembered that when an order is sought removing limits on costs fixed in an applicable determination pursuant to s 280(2)(c), the order made will do no more than that. Accordingly, the court considering the application for such an order need go no further than determine whether there is a fairly arguable case for the allowance of costs at an amount greater than the amount allowable under the relevant determination - it is for the taxing officer to consider the necessity for the work that was done and the reasonableness of the remuneration claimed.

1. In considering the second step, the court must conclude that the inadequacy arises because of the unusual difficulty, complexity or importance of the matter. It is established that the word 'unusual' qualifies only the term 'difficulty' and not the terms 'complexity or importance'.[17] Importance is understood to only encompass importance to the parties and not importance to the public or a sector of the public.[18]
2. In Pourzand v Telstra Corporation Ltd[19] and The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd [No 2][20] Edelman J said that the question of 'unusual difficulty, complexity or importance' should be asked separately in relation to each item for which the lifting or removal of the scale is sought. This approach was rejected by Martin CJ in Electricity Generation and Retail Corporation Trading as Synergy v Woodside Energy Ltd.[21] His Honour found that the expression should be construed as meaning the issue, dispute or controversy in respect of which legal services were provided and which fall within the ambit of a costs determination.[22]
3. The reasoning of Martin CJ in Electricity Generation v Woodside was found to be persuasive and applied by Beech J in Eclipse Resources Pty Ltd v The State of Western Australia [No 2].[23] This approach was also applied by Pritchard J in Santos Offshore Pty Ltd v Apache Oil Australia Pty Ltd.[24] In my respectful view, the reasoning of Martin CJ in Electricity Generation v Woodside is persuasive and I propose to adopt his Honour's approach.
4. However, this approach does not mean that an examination of individual items of the costs determination should not be considered when determining whether costs allowable in respect of the work done is inadequate. In Electricity Generation v Woodside Martin CJ explained:[25]

The question which must be addressed either in respect of individual items or a costs determination as a whole is whether the costs allowable in respect of the work done are inadequate because of the particular characteristic or characteristics of the 'matter' which has or have enlivened the jurisdiction of the court - that is, unusual difficulty, complexity or importance.

Whether the amounts allowed under the relevant items of the scale are inadequate

1. Phillip Bruce Dobson, solicitor for Steven, deposes in an affidavit sworn on 19 February 2018 that in about March 2017, after it appeared to him that it would be necessary for Steven to commence proceedings, he sought instructions from Steven to engage senior counsel. Mr Dobson's opinion that senior counsel should be engaged was premised on the following:

(a) the importance of the matter to Steven, given that there was a potential for him to no longer be able to continue to live and farm on Burracoorong;

(b) Mr Dobson's view was that the matter was sufficiently difficult to warrant the engagement of senior counsel, given the equitable nature of the claim and the facts giving rise to the plaintiff's claim traversed an extended period of time involving conversations and acts of reliance from a relatively long time ago, and did not rely on any formal written agreement;

(c) Mr Dobson's view that the proposed senior counsel, Mr M Solomon SC, had experience in equitable claims of this nature; and

(d) Mr Dobson's view based on his experience of Mr Solomon's work at previous mediations that he (Mr Solomon) would take a pragmatic and proactive approach in attempting to settle the matter, which he (Mr Dobson) considered to be particularly important given that the dispute involved members of the same family.

(a) after mediation had occurred on 24 August 2017 the parties continued to negotiate settlement of the dispute until about midSeptember. The negotiations of the parties (of which the court was informed) resulted in the parties agreeing to defer the preparation of the matter for trial, by extending the trial preparation milestones in the hope that the matter might settle and the parties be spared the costs of preparing for trial;

(b) the consequence of the parties deferring the trial preparation milestones was that postmediation settlement discussions ceased, and there was less time to prepare the matter for trial (a trial which had already been listed on an expedited basis);

(c) as a result of being given a very short time available to prepare the matter for trial it became necessary to engage junior counsel to assist; and

(d) a considerable amount of work was necessary to be undertaken to prepare the matter for trial in a very short period of time and that without the assistance of junior counsel, Steven would not have been able to effectively prepare his case for trial as effectively as he did.

1. From these circumstances, Steven makes a claim for a special costs order on the following grounds:

(a) Steven's case disclosed a complex and lengthy factual background giving rise to Steven's claim against Mr Browne together with complex considerations of the appropriate relief to be granted by the court in the very particular circumstances of the arrangements made between Mr Browne and Steven;

(b) the matter involved unusual difficulty or complexity that might ordinarily not be expected in the trial of this nature because of the extensive time period covered by the litigation (about which evidence was required to be gathered and witness statements prepared) and because of the truncated timeframe for the preparation of the matter for trial;

(c) because of Mr Browne's denials or nonadmissions in his defence, the preparation of Steven's witness statement and his case involved analysis of many historical financial documents, spanning 1991 to 2017 to prove partnership borrowings, expenditure on the construction and maintenance of his house and on infrastructure built on Burracoorong;

(d) preparation for trial also involved the collation of evidence derived from diary entries spanning some 18 years in order to prove that Steven undertook significant development work on Burracoorong;

(e) these circumstances resulted in a particularly large trial bundle containing more than 4,000 pages with documents traversing a 43 year period from 1974 to 2017; and

(f) the expedited nature of the claim meant that Steven prepared lengthy opening submissions filed prior to the trial to save time in what would otherwise have necessitated lengthy oral opening submissions by senior counsel. Similarly, senior counsel's oral closing submissions were able to be truncated by the provision to the court of comprehensive closing submissions in writing.

1. Against this background, Steven claims that the scale for item 1(c) of the 2016 Determination which provides for an amount of $4,840 is inadequate. In an affidavit of Lewis James Whitehurst sworn on 19 February 2018 he attaches a draft bill of costs which estimates costs of settling the statement of claim, not including either senior or junior counsel's fees for settling, of $8,996.10.
2. Item 7(b) of the 2016 Determination provides for an amount of $4,840 for discovery. This amount is also said to be inadequate. The affidavit of Steven sworn on 28 September 2017 verifying the discovered list of documents shows that the discovery was large (more than 40 lever arch volumes) and involved documents covering an expansive period of time and included diaries, financial diaries, invoices and a large number of business records. The scope of discovery given arises directly from Steven's claim and the fact that the defence pleaded by Mr Browne puts most of the matters in dispute. The draft bill of costs attached to Mr Whitehurst's affidavit estimates a cost giving discovery of documents of $13,612.50.
3. Steven also claims that the preparation of case and fees on brief items in the scale are inadequate:

(a) Item 17 of the 2016 Determination provides for 120 hours and an amount of $58,000.80 for preparation of case. The draft bill discloses costs of $107,411.93, not including work reasonably and necessarily undertaken for commencement of proceedings which is permitted by the scale;

(b) Item 20(b) of the 2016 Determination provides for an amount of $30,690 for senior counsel's fee on brief, including trial preparation and submissions. The draft bill discloses costs of $115,690;

(c) Item 20(a) of the 2016 Determination provides for an amount of $17,820 for counsel's fee on brief, including trial preparation and submissions. The draft bill discloses costs of $60,020.40; and

(d) Item 20(d) of the 2016 Determination provides for $6,820 per day for the second and each successive day of the hearing for senior counsel. Senior counsel's daily fees were $7,800 plus GST.

1. Taking into account the court's impression of the case, I am satisfied that its unusual factual and legal complexity required an extensive volume of work necessary for the preparation for trial. I am also satisfied that the matter was of significant importance to the parties. When regard is had to these matters, it is open to infer that there is a fairly arguable case that a taxing officer might properly allow costs, for senior and junior counsel for settling the statement of claim, the engagement of senior and junior counsel for the trial, and discovery, in amounts greater than the amounts allowable under the 2016 Determination.
2. However, it is properly the task of the taxing officer to assess whether or not to allow all of the costs charged for the legal work covered by each of the items the subject of order.
3. Given the circumstances outlined on behalf of Steven, I am satisfied that the limits provided in items 1(c), 7(b), 17, 20(a), 20(b) and 20(d) of the 2016 Determination are inadequate and I am persuaded that the scale limits on these items should be lifted.

1. For these reasons, I will make an order pursuant to s 280(2) of the Legal Profession Act that Mr Browne pay Steven's costs of the action on a partyparty basis without reference to any of the limits provided in items 1(c), 7(b), 17, 20(a), 20(b), and 20(d) of the Legal Profession (Supreme Court) (Contentious Business) Determination 2016.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] The signing of these documents by Mr Browne were pleaded by amendments to the statement of claim after the Calderbank offer was made and rejected. Mr Browne claimed his signature on the documents was forged.

[2] The will was pleaded by amendment to the statement of claim after the Calderbank offer was made and rejected.

[3] Browne v Browne [No 2] [2017] WASC 375.

[4] Browne v Browne [No 2] [2017] WASC 375.

[5] Calderbank v Calderbank [1975] 3 All ER 333.

[6] Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115 [16] [32] (Wheeler JA agreeing).

[7] Eccles v Koolan Iron Ore Pty Ltd [2013] WASC 418 (S).

[8] Eccles v Koolan Iron Ore Pty Ltd [2013] WASC 418 (S) [9]

[10] Browne v Browne [No 2] [2017] WASC 375 [46] [47].

[11] Browne v Browne [No 2] [2017] WASC 375 [41] [42].

[12] Browne v Browne [No 2] [2017] WASC 375 [275(f)], [275(g)].

[13] Eccles v Koolan Iron Ore Pty Ltd [2013] WASC 418 (S) [13].

[14] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 (S) [109].

[15] Legal Profession Act 2008 (WA) s 280(2).

[16] Mentha As Receiver and Manager of Westgem Investments Pty Ltd (in liq) v Hughes as Liquidator of Westgem Investments Pty Ltd (in liq) [2014] WASC 478 (S) [4] [5].

[17] Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66 (S) (the court); applied in Santos Offshore Pty Ltd v Apache Oil Australia Pty Ltd [2015] WASC 242 (S) [9] (Pritchard J).

[18] Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) [17] [19] (Martin CJ).

[19] Pourzand v Telstra Corporation Ltd [2012] WASC 210 (S2) [24] [25].

[20] The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd [No 2] [2014] WASC 345 (S) [6].

[21] Electricity Generation and Retail Corporation Trading as Synergy v Woodside Energy Ltd [2014] WASC 469 (S).

[22] Electricity Generation and Retail Corporation Trading as Synergy v Woodside Energy Ltd [2014] WASC 469 (S) [7].

[23] Eclipse Resources Pty Ltd v The State of Western Australia [No 2] [2015] WASC 137 [35].

[24] Santos Offshore Pty Ltd v Apache Oil Australia Pty Ltd [2015] WASC 242 (S) [10].

[25] Electricity Generation and Retail Corporation Trading as Synergy v Woodside Energy Ltd [2014] WASC 469 (S) [12].