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

Supreme Court of WA|2018-04-11|Before: Smith AJ

1 The plaintiff, Steven Browne is the son of the defendant, Edward Browne. Steven is one of four sons of Edward Browne. In this judgment I will refer to Edward Browne as Mr Browne and to each of the sons by their first name.

2 Mr Browne married Steven's mother, Mae Browne in 1953. Steven was born in 1957, he is the second eldest of eight children and the eldest son. The other sons in order of age are Paul, Michael and Peter.

3 Mr Browne came from a farming family. In 1962, Mr Browne purchased a farm known as Yargalain. In 1966, Mr Browne inherited from his father the farming property known as Roberts or Swan 3259 and later known as Burracoorong. In about 1968, Mr Browne acquired a farming property described as Army Block 1. In about 1973, he acquired a farming property described as Army Block 2.

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;

(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:

(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;

(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:

A declaration that the defendant holds his legal interest in Burracoorong on trust for the plaintiff.
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.

Alternatively, an order that the defendant pay compensation or damages to the plaintiff.
An order that the defendant pay the plaintiff's costs of the proceedings.
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.

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