//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2025] NSWSC 1347
Supreme Court of NSW
2025-11-17
Hmelnitsky J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Bushell v George [2025] NSWSC 1347
Hearing dates: 7, 8, 9, 10, 11, 14, 15 and 16 July 2025
Date of orders: 17 November 2025
Decision date: 17 November 2025
Jurisdiction: Equity
Before: Hmelnitsky J
Decision: (1) The proceedings brought by the first plaintiff are dismissed.
(2) Direct the second plaintiff to file and serve short submissions as to the form of an order for further provision and any notional estate orders on or before 15 December 2025.
(3) Direct the defendants to file and serve short submissions as to the form of an order for further provision for the second plaintiff and any notional estate orders on or before 3 February 2026.
(4) Direct the second plaintiff to file and serve any submissions in reply on or before 17 February 2026.
(5) Direct the parties to file and serve any evidence and short submissions on the question of costs on or before 15 December 2025.
(6) Direct the parties to file and service any evidence and short submissions in reply on the question of costs on or before 3 February 2026.
Catchwords: ESTOPPEL — Proprietary estoppel — Encouragement — Where deceased transferred approximately 3000 ha of farmland to second defendant — Where second defendant and plaintiffs are siblings — Whether the deceased had made representations to the plaintiffs that they would each get a third of the farmland — Whether it was reasonable for the plaintiffs to rely on the alleged representations — Whether the plaintiffs relied to their detriment on the alleged promises
SUCCESSION — Family provision — Claim by adult children for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Potentially large notional estate — Where plaintiffs each received cash legacy and second defendant received farmland — Whether adequate and proper provision made for the plaintiffs — Where plaintiffs contend they should each be given further provision to fund the purchase of farmland
Legislation Cited: Limitation Act 1969 (NSW) ss 11, 27, 36 and 47
Real Property Act 1900 (NSW) ss 42, 43 and 118
Succession Act 2006 (NSW) ss 59, 60 and Part 3.3
Cases Cited: Alexander v Jansson [2010] NSWCA 176; (2010) 6 ASTLR 432
Ashton v Pratt (No 2) [2012] NSWSC 3
Bahr v Nicolay (No 2) (1988) 164 CLR 604; [1988] HCA 16
Barnes v Alderton [2008] NSWSC 107; (2008) 13 BPR 25,281
Bassett v Bassett [2021] NSWCA 320
Bassett v Cameron [2021] NSWSC 207
Blore v Lang (1960) 104 CLR 124; [1960] HCA 73
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Estate Grundy; La Valette v Chambers-Grundy [2018] NSWSC 104; (2018) 17 ASTLR 64
Flinn v Flinn [1999] 3 VR 712; [1999] VSCA 109
Frazer v Walker [1967] 1 AC 569
Gillett v Holt [2001] Ch 210
Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10
Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31
Hampson v Hampson [2010] NSWCA 359; (2010) 5 ASTLR 116
Heggies Bulkhaul v Global Minerals Australia (2003) 59 NSWLR 312; [2003] NSWSC 851
Kramer v Stone [2024] HCA 48; (2024) 99 ALJR 126
Lumb v McMillan [2007] NSWSC 386
Mapa Pearls Pty Ltd v Haliotis Fisheries Pty Ltd (2023) 71 VR 581; [2023] VSCA 108
McNab v Graham (2017) 53 VR 311; [2017] VSCA 352
Presbyterian Church (NSW) Property Trust v Scots Church Development Ltd [2007] NSWSC 676; (2007) 64 ACSR 31
Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220; (2020) 383 ALR 469
Salmon v Osmond [2015] NSWCA 42; (2015) 14 ASTLR 442
Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522
Soulos v Pagones; Soulos v Soulos; Soulos v Soulos; Soulos v Pagones; Kristallis v Soulos; Kristallis v Soulos; Kristallis v Pagones [2023] NSWCA 243; (2023) 416 ALR 181
Starr v Miller; Starr v Miller [2021] NSWSC 426
Strang v Steiner [2019] NSWCA 143; (2019) 19 ASTLR 330
Tarbes v Taleb [2023] NSWSC 565
Trentelman v Owners – Strata Plan No 76700 (2021) 106 NSWLR 227; [2021] NSWCA 242
Underwood v Gaudron [2014] NSWSC 1055
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11
Watson v Foxman (1995) 49 NSWLR 315
Texts Cited: Nil
Category: Principal judgment
Parties: James Rodney Bushell (First Plaintiff)
Hannah Sophy McPherson (Second Plaintiff)
Peter Bruce George as Executor of the Estate of the late Wayne Keith Bushell (First Defendant)
Abraham Edward Bushell (Second Defendant)
Representation: Counsel:
T Alexis SC / A Zheng (Plaintiffs)
DW Rayment SC / A Smorchevsky (Defendants)
Solicitors:
Cole & Butler (Plaintiffs)
Chambers Russell Lawyers (Defendants)
File Number(s): 2021/70628
Publication restriction: Nil
Introduction
The dispute in broad outline
The Farm
The Farming Entities
The Bushell Children
Proprietary Estoppel claims
Detrimental reliance
Succession Act claims
The Wills
The 1989 Wills
The 2015 Wills
The 2018 Will
The 2021 Wills
Wayne’s health
The facts in more detail
James Bushell – childhood and early adulthood
Hannah McPherson – childhood and early adulthood
James is promoted at KPMG
Wayne and Jo purchase Arizona and Ivanhoe
James considers purchasing Currawong
Wayne offers to transfer the farm to James in 2008 or 2009
March 2011 – Hannah moves to Laos
January 2012 – James writes to his father about the farm
May 2012 – James moves to Chile
Hannah resigns from Clayton Utz
Wayne and Jo separate
The events of 2013
2014 – Hannah starts a business; moves to Ethiopia
2014 – James is offered a path to partnership with KPMG Chile
2014 – James takes a sabbatical from KPMG and returns to the farm
Hannah becomes estranged from Wayne
2015 – James receives a further offer of a path to partnership
2015 – Wayne and Jo’s financial settlement
April 2015 – James and Wayne have a falling out
2016 Annuity Deed
James briefly returns to KPMG
Abe’s divorce
The events of 2018-2019
2020 – Wayne’s meetings with Georgeina Ryan
October 2020 – James sends Wayne a letter
2020 and 2021 – Further meetings between Wayne and Georgeina Ryan
2020 and 2021 – The contract for sale, the loan agreement, and the variation
2020 and 2021 – The caveat proceedings
March 2021 – Police incident
NCAT proceedings
The Proprietary Estoppel Claim
Proprietary estoppel by encouragement – applicable principles
Some observations about the evidence
What did Wayne say?
Did Wayne make the pleaded representations to Hannah?
Did Wayne expect Hannah to rely on the representations and expectations?
Did Hannah rely to her detriment on the representations and expectations?
Reliance
Detriment
Did Wayne make the pleaded representations to James?
Did Wayne expect James to rely on the representations and expectations?
Did James rely to his detriment on the representations and expectations?
Reliance
Detriment
Conclusions in relation to the proprietary estoppel claims
Defences to the proprietary estoppel claims
Section 43 of the Real Property Act
Limitation and laches
Limitation Act defences
Laches, acquiescence and delay
The Succession Act claims
James’s current financial circumstances
James’s financial needs
Hannah’s current financial circumstances
Hannah’s financial needs
Abe’s current financial circumstances
Abe’s financial needs
Abe’s evidence about Wayne’s promises
Family provision claims – applicable principles
Adult children
Large estates
Estrangement
Farm estates
Testator’s intention
The parties’ submissions on whether adequate provision was made
Did Wayne’s Will make adequate provision for the plaintiffs?
Adequate provision – common factors
James’s circumstances
Hannah’s circumstances
Orders for further provision for Hannah
ORDERS
Wayne was a farmer. By 2020, he owned eight parcels of land totalling about 3011 hectares near Barmedman, northwest of Temora in the Riverina region of New South Wales (the farm).
On 18 November 2020, Wayne and Abe entered into a contract whereby Abe purchased the whole of the land comprising the farm for $13,000,000. A related ‘Loan Agreement’ provided for the purchase price to be left outstanding as an interest only loan at 0.75% per annum, repayable in 30 years.
On 24 May 2021, Wayne made his final will. He gave legacies of $600,000 to each of James and Hannah, to be paid in five equal instalments over five years. The rest of his estate was left to Abe, including his share in the company which carried on the farming business.
On 11 June 2021, Wayne and Abe executed a document entitled ‘Loan Agreement – Variation’. Among other things, this document provided that of the total $13,000,000 purchase price for the farm, Abe was now only required to repay $1,200,000 over 5 years, plus $50,000 per year on account of interest, and that the rest of the purchase price for the farm was a ‘gift’ to Abe.
The result of these transactions was that when Wayne died later that year, Abe was already the owner of the whole of the farmland and the company which conducted the farming business, subject to a requirement that he pay only $1,200,000 of the purchase price to Wayne’s estate. This amount was sufficient to pay the legacies to James and Hannah, but nothing more. The evidence shows that the land had a total value of about $20,000,000 at the time of Wayne’s death.
The plaintiffs’ primary case is that these transactions and the May 2021 will represented a serious departure by Wayne from representations which he had made over the course of decades as to an eventual three-way split of the land comprising the farm. They say that they relied to their detriment on those representations and that it was unconscionable of Wayne to resile from them. Their claim is one of proprietary estoppel by encouragement. The primary relief sought by each plaintiff is a constructive trust over the whole of the land to secure the respective one-third interests which, they say, Wayne encouraged them to believe they would receive.
In the alternative, the plaintiffs ask the Court to make family provision orders under s 59 of the Succession Act 2006 (NSW). To that end, they seek orders under Part 3.3 designating the land as notional estate for the purpose of satisfying the orders.
In addition to their general denials, the defendants raise a matter that rather complicates the proprietary estoppel claims. After Wayne and Abe had entered into the contract for sale of the land but before settlement, James and Hannah became aware of their arrangements. They consulted a solicitor who promptly lodged caveats against title to the land. Wayne then caused a lapsing notice to be issued. This step precipitated these proceedings, which were commenced by a summons filed in Court before the Duty Judge shortly before the caveats lapsed. Both Wayne and Abe were named as defendants. The summons, together with a supporting affidavit from their solicitor, set out the plaintiffs’ basic proprietary estoppel case. However, the Duty Judge declined to extend the caveats, principally because the plaintiffs had delayed in bringing it. In refusing to extend the caveats, his Honour expressed the view that any proprietary right which the plaintiffs had in the land would survive the proposed transfer to Abe in any event, because Abe would take the land with notice of his siblings’ equitable claims.
Wayne was the third generation of his family to farm in the Barmedman region. His grandfather, Abraham Henry Bushell, moved to the area and acquired two properties known as Bridgefield and Pinegrove in about 1936. At some point, these properties became owned by Wayne’s father, Keith Bushell. They are where Keith and his wife, Joan, raised Wayne and his two sisters, Janet and Wendy. Bridgefield and Pinegrove were eventually transferred to Wayne in June 2018, shortly prior to Keith’s death in early 2019. Joan also died in early 2019.
In his twenties, Wayne entered into a farming partnership with his parents pursuant to which they farmed Bridgefield and Pinegrove. At some point Wayne purchased a nearby property, The Vale, in his own name.
In late 1979, Wayne met Joanne (Jo) Maree Woods who was at that time studying to become a teacher in Sydney. In 1980, Wayne sold The Vale and purchased Oaklands, which adjoined his parents’ farm. Wayne and Jo were married on 2 January 1982 and she was added to the partnership with Wayne, Keith and Joan (the First Bridgefield Partnership). That partnership conducted the farming business on all three properties, being Bridgefield, Pinegrove and Oaklands, for many years.
In 2003, Keith and Joan retired from active farming but continued to own and live on Bridgefield and Pinegrove. The First Bridgefield Partnership was dissolved at the end of that financial year and, from 1 July 2003, the farm was run by a new partnership between Wayne and Jo (the Second Bridgefield Partnership). Wayne and Jo leased Bridgefield and Pinegrove from Keith and Joan for that purpose.
Over time, Wayne purchased additional land in the region. Some adjoined the existing properties, some did not. By 2018, the eight parcels making up the farm and their approximate areas were as follows, arranged in order of acquisition by Wayne:
Oaklands – 187 hectares;
Bellview – 447 hectares;
Sunnyside (Hills) – 492 hectares;
Twitts – 221 hectares;
Arizona and Ivanhoe – respectively 437 and 243 hectares;
Currawong – 532 hectares;
Bridgefield – 267 hectares;
Pinegrove – 185 hectares.
All of these properties are properties under the Real Property Act, save for a portion of Bellview which is Crown land and farmed under a Crown lease.
Currawong was purchased in Jo’s name in 2011, shortly before Wayne and Jo separated in September 2012. They were divorced following a financial settlement in February 2015. The Second Bridgefield Partnership was dissolved at some point in 2014, although it is not entirely clear whether this occurred on 30 June 2014 or 31 December 2014. In any event, Jo transferred her interest in that partnership as well as her interest in Currawong to Wayne as part of their financial settlement.
“(a) farmhouses on Bridgefield, Oaklands and Arizona;
(b) machinery sheds and haysheds on Bridgefield, Oaklands, Bellview, Hills, Arizona and Currawong;
(c) woolsheds on Bridgefield and Oaklands;
(d) grain silos on Bridgefield, Bellview and Arizona;
(e) grain sheds on Bridgefield;
(f) fertilizer sheds on Bridgefield;
(g) water pumps, pipes, tanks and troughs on Bridgefield, Pinegrove and Oaklands;
(h) fencing on all properties; and
(i) dams on all properties.”
Over the years, the farming business was conducted through various partnerships, trusts and companies. I have already mentioned the First and Second Bridgefield Partnerships above. The evidence about the entities created or used in later periods was not always easy to follow. For convenience, I summarise the position as follows.
On 1 June 2012, shortly prior to their divorce, Wayne and Jo caused a new company to be incorporated, Bridgefield Farming Pty Ltd (ACN 158 704 440) (the Bridgefield Company). Wayne and Jo were directors and shareholders. On 25 September 2012, they caused a discretionary trust to be settled on the Bridgefield Company as trustee.
On 1 October 2012, a new partnership was registered for GST purposes, the partners of which were Wayne, Jo and the Bridgefield Company (the Third Bridgefield Partnership). I was unable to determine whether this partnership ever traded.
In December 2012, shortly after Wayne and Jo’s separation, Wayne registered as a sole trader. He seems however not to have traded as such until 1 January 2015, and even then he only did so for a period of about six months.
In September 2014, there was a further partnership established. The partners were Wayne and Abe (the WKB and AEB Partnership).
From 1 July 2015, the business was carried on by a partnership between Wayne, Abe and the trustee of the Abe and Jenna Family Trust in the proportions 35%, 35% and 30% respectively (the First Bridgeline Agriculture Partnership). A Partnership Agreement recording the terms of this partnership was executed on 1 February 2016. Jenna was Abe’s wife at the time.
Following Abe and Jenna’s separation, Wayne and Abe began trading in a different partnership (the Second Bridgeline Agriculture Partnership) on 1 January 2019. However, they only did so for about six months.
Since 1 July 2019, the farming business has been carried on by Bridgefield Farming Pty Ltd (ACN 633 676 699) (Bridgefield Farming) in its own right. This entity was registered in May 2019. Abe is now the sole shareholder and director of Bridgefield Farming.
James was born in 1984. Hannah was born in 1986. Abe was born in 1987. The three children spent their entire childhoods at Oaklands. They all have fond memories of growing up on the farm. From a very young age, all three children did farm chores like feeding chickens and dogs, collecting wood, mowing lawns and so on. They were all heavily involved in the life of the farm in their own way so long as they lived there.
James completed his HSC at Temora High School in 2001. He was an excellent student. He went to the University of Sydney where he obtained a first-class honours degree in Agricultural Economics. He joined the graduate program at KPMG in January 2008, where he gained professional qualifications and became a successful auditor. He was offered partnership opportunities with KPMG Chile, where he worked for several years on secondment as the lead auditor for BHP Copper. However, in circumstances discussed below, he declined those offers. Instead, he took a 12-month sabbatical from KPMG to return to Australia to live with his father on Arizona for about nine months during the period in which his parents were seeking to arrive at a property settlement. He then returned to KPMG for about 12 months but resigned to complete a PhD at the University of Sydney. He now works as a senior public servant in Canberra. He lives with his partner in Canberra, where they own a home. Save for a period of about nine months during the sabbatical to which I have referred, he has not returned to the farm to live since graduating from university.
Hannah also attended Temora High School. Like James, she was an excellent student. She completed her HSC in 2003 and moved to Sydney to study a combined Bachelor of Arts (Communications) and Bachelor of Law degree at the University of Technology. She completed her practical legal training concurrently with her final year of academic study and was admitted to practice in February 2009. She commenced employment as a graduate lawyer with Clayton Utz in November 2009. In 2011, she took a 12-month leave of absence to volunteer in a disability organisation in Laos. While living in Laos, she resigned from Clayton Utz. She returned to Australia in April 2012 and moved with her long-term partner, Jarrod, to his house in Narrandera. Hannah and Jarrod are now married. They have two small children and live in Albury, where they own a home. Save for a period of about six months during 2009 when she returned to help look after the farm between being admitted as a lawyer and commencing as a graduate at Clayton Utz, Hannah has also not returned to the farm to live.
Abe was a terrible student. He was not at all academically inclined. In 2003, his parents sent him to Yanco Agricultural High School, a boarding school near Narrandera, but it did not work out well. He was suspended twice during his year there. He completed Year 10 at the end of 2003 and returned to the farm, where he has worked ever since. He has essentially done nothing but farming since leaving school, although his devotion to the task was doubtful when he was a very young man. He was married to Jenna Looney, whom he met when he was about 19. They had three children together. Abe and Jenna are now divorced. Abe has a new partner, Kiri Baker, but they do not live together the whole of the time.
James and Hannah both say that Wayne made representations to them throughout their childhood and early adulthood in relation to an eventual three-way division of the land among the three siblings. Their pleaded case was as follows.
James alleges that during his childhood, Wayne made representations or otherwise encouraged him to believe that he would ‘obtain an equal share in the [farm] with his siblings’ either under Wayne’s will (if Jo predeceased Wayne) or under Jo’s will (if Wayne predeceased Jo but subject in that event to a life interest in favour of Jo). In the amended statement of claim, this was called the ‘equal share representation to James’.
James also alleges that during his childhood, Wayne ‘encouraged James to leave the [farm] and obtain qualifications in an unrelated profession or vocation before returning to the [farm] and taking up a permanent or full-time role as part of the [farm’s] operations’. In the amended statement of claim, this was called the ‘qualification expectation to James’.
James further alleges that, from time to time since leaving the farm in 2002, Wayne made representations that were ‘consistent with or more favourable to James than the equal share representation’ in that he both repeated the equal share representation and also, separately, ‘represented that he intended to leave to James half or more of the ‘farm’ under his will or by a transfer during his lifetime’. He also alleges that Wayne represented that he would leave specific parcels of land to him under his will ‘or by a transfer during his lifetime’. In the amended statement of claim, these were called the ‘further representations to James’.
Hannah alleges that throughout her childhood, Wayne made an equivalent ‘equal share representation’ and expressed an equivalent ‘qualification expectation’ to her in essentially the same terms as the ‘equal share representation to James’ and the ‘qualification expectation to James’. Thus, each plaintiff relies on essentially the same equal share representation and qualification expectation, so-called.
Hannah alleges that the equal share representation and qualification expectation were repeated to her from time to time after she reached adulthood. She does not however rely on any ‘further representations’ such as James alleges.
James and Hannah say that they relied to their detriment on the representations and expectations to which I have referred.
James says that between 2002 and 2012, in reliance on the equal share representation and the qualification expectation, he ‘made academic decisions and pursued professional opportunities in order to acquire knowledge and skills that would contribute to the operations and business of the [farm]’ and that he also ‘returned to the [farm] on a regular basis in order to participate in farm activities such as assisting with the annual harvest’.
He says that between September 2014 and July 2015, he relied on the equal share representation and the further representations by doing the following things:
Declining an offer to pursue partnership with KPMG Chile.
Taking a 12-month sabbatical without pay from KPMG Australia.
Returning to Australia and moving in with Wayne in order to assist him to:
(a) organise his financial assets, including the farm; (b) formulate a financial settlement between Wayne and Jo; and (c) obtain ongoing financial support to ensure the continued operation of the farm.
Hannah alleges that she relied on the qualification expectation by doing the following things:
Leaving the farm in 2004.
Pursuing tertiary education at the University of Technology Sydney between 2004 and 2008.
Undertaking practical legal training at law firms in Sydney and completing her Graduate Certificate in Legal Professional Practice.
Getting admitted to the practice of law in February 2009.
Commencing employment with Clayton Utz in Sydney in November 2009.
Hannah alleges that she relied on the equal share representation in doing the following things:
Making academic decisions in order to acquire knowledge and skills that would contribute to the operations and business of the farm rather than doing so based on personal interest. She specifically pleads that she pursued the combined arts/law degree ‘at the expense of a personal interest in and affinity with medicine’.
Pursuing professional opportunities that also enabled her to acquire knowledge and skills that would contribute to the operations and business of the farm. Particulars of this allegation include such things as doing pro bono work for rural and regional clients whilst employed at Clayton Utz, as well as participating in the Royal Agricultural Society of New South Wales Showgirl Competition.
Returning to the farm between 2004 and 2011 in order to help with farm work, such as the annual harvest.
Resigning from Clayton Utz in March 2012.
Relocating to regional NSW in April 2012 ‘in order to be closer to, and provide support for’ the farm.
Pursuing employment with organisations operating in the Riverina region ‘in close proximity to’ the farm or that offered roles ‘that enable her to continue to acquire experience, knowledge and skills that would contribute to the operations and business of’ the farm. Particulars to this allegation included matters such as taking casual work with an Albury law firm, taking a position at the Australian Taxation Office in Albury, volunteering with the Ethiopian Agricultural Transformation Agency (ATA), a government agency created to accelerate the transformation of agriculture in Ethiopia based on global best practice. This last-mentioned position was between June and October 2014.
Hannah also pleads that between 2012 and 2019, she declined other employment opportunities that were located outside the Riverina region, in order to remain close to the farm.
James and Hannah say that Wayne was aware of their detrimental reliance on his representations and expectations and that as a result of his unconscionable departure from them, all eight parcels of land comprising the farm are now held on a remedial constructive trust for them as to one third each. They say that if this relief is granted, they would repay and otherwise disclaim the legacies which Wayne left them under his will.
James and Hannah seek orders in the alternative pursuant to s 59 of the Succession Act. They submit that the Court should be satisfied that proper provision was not made for them under Wayne’s will and that the Court should make family provision orders that would provide them with a sufficient sum to allow them each to purchase a farm. They submit that their legacies of $600,000 each are paltry compared to the overall value of the estate.
Abe says that the legacies given to Hannah and James under the will are adequate provision for them and that they have not made out a case for unmet financial needs. He has also put his own financial circumstances in issue. He says that the burden of making any additional provision for James and Hannah would likely jeopardise his ability to keep the farm intact, contrary to Wayne’s express wishes.
Wayne made a will on 21 July 1989. By this will, Wayne left Oaklands and his interest in the Bridgefield Partnership to Jo. He left some or all of Bellview to Jo, who was also to be his executor, to be held on trust to pay income to Jo until the youngest child attained 23 years, and thereupon for the children equally. The residue of the estate was left to Jo. In the event that Jo did not survive him by 30 days, the properties were given to Keith to hold on trust for the children in equal shares until the youngest child attained 23 years.
Jo made a will on 4 August 1989 by which she left her entire estate to Wayne but, should he not survive her, to her mother Wilma to hold on trust for the children in equal shares until the youngest child attained 23 years.
Wayne made three wills during the course of 2015.
The first was made on 3 February 2015. This will was made right about the time Wayne and Jo reached their final property settlement but before final orders were made. The executors were Wayne’s sister, Janet, as well as James and Abe. He divided his estate as follows:
Oaklands, Bellview and Twitts were left to Abe. This represented about 855 hectares.
Arizona, Ivanhoe and Sunnyside were left to James, Hannah and Abe in equal shares with Abe ‘to have the first right to purchase each of his siblings’ interests in any or all of the properties at the then current market value…such election to be made within 12 months of the date of my death’. This represented about 1172 hectares.
All farming plant and machinery was left to Abe.
The residue was left to any surviving children equally.
The second was made on 7 July 2015. This will appointed James, Hannah and Abe as executors. Clause 3 provided:
“It is my desire that my estate to be divided equally between my children but for my son ABRAHAM EDWARD BUSHELL to continue farming on my lands and therefore for him to be given the opportunity to buy out his siblings’ interests if possible. In making this Will I have given consideration to the value of the respective properties and the work performed by Abraham on the farms during my lifetime, for which payment is still owed by me. As such it is intended that Abraham receives a greater share of lands in lieu of unpaid wages.”
The estate was then divided as follows:
Oaklands, Bellview and Currawong were given to Abe.
Twitts, Arizona, Ivanhoe and Sunnyside were to be sold, with Abe to have a right to purchase within two years of the date of Wayne’s death. The net proceeds of sale were to be divided equally between James and Hannah.
All farming plant and machinery was left to Abe.
The residue was left to any surviving children equally.
The third was made on 17 December 2015. It appointed Abe to be executor. Clause 3 provided that the whole of Wayne’s estate was to go to Abe or, should Abe not survive him, to Abe’s estate.
Wayne made two wills in 2021.
The first was made on 11 February 2021. Abe and Mr George were appointed executors. The farm (whether under the 18 November 2020 contract or otherwise) and Wayne’s shares in Bridgefield Farming were devised and bequeathed to Abe. James and Hannah were each left $300,000, to be paid over a period of five years in five equal instalments. The residue of the estate was left to the ‘Abe Bushell Trust’ established under Part B of this will. Abe was to be the initial trustee, appointor and principal beneficiary of this trust. Other beneficiaries included the descendants of the principal beneficiary and associated entities. Hannah and James were beneficiaries only if there were no other living beneficiaries.
Finally, Wayne made a will on 24 May 2021, which is the will admitted to probate. The main difference between this 24 May will and the 11 February will was that Hannah and James were each left $600,000 instead of $300,000 to be paid over five years in five equal instalments.
It is important to understand Wayne’s conduct over the relevant period against the background of his declining – and ultimately debilitatingly poor – health.
Wayne was diagnosed with Parkinson’s disease in about September 2002 at the age of 47. From the outset, his condition made him physically weaker. This had an impact on the whole family, because it affected his ability to do manual farming work. Hannah, who was then in her final year of high school and the only child living on the farm at the time, took on additional duties on the farm.
Wayne’s condition was progressive. In June 2011, he underwent deep brain stimulation surgery. Shortly after this surgery, his temperament apparently worsened. By 2012, Wayne’s Parkinson’s disease was beginning to affect his speech. His physical abilities and involvement on the farm became very limited, and he was only able to work an average of two hours in the summer and four in the winter.
It was at this point that Wayne and Jo separated. James observed in late 2013 that Wayne’s movements were jerkier and that he had difficulties maintaining his balance. He noticed that Wayne now needed to rest in the middle of the day, which he had not previously done. By this stage, Abe was doing the overwhelming bulk of the labouring and management work on the farm.
By 2017, Wayne had become extremely frail. At some point, his eyes stopped opening fully. The evidence does not however show that Wayne’s intellectual capacity was affected by the disease. He remained keenly interested in the farm.
Wayne moved into Settlers Village in December 2019. At some point, he was diagnosed with chronic kidney disease. In October 2021, Wayne made the decision to stop dialysis.
Wayne died on 2 November 2021, aged 66 years. Probate of Wayne’s 24 May 2021 will was granted to Mr George and Abe on 30 March 2022.
“Eventually the farm will be split evenly between you three. There will be no favourites, it will all be split equally. No one will be left out. But you must go away and earn a qualification and get off farm experience before you can come back.”
James’s general impression was that his father expected the children to return to the farm at the age of about 25 to 30. His father would also say things such as ‘one day, part of this land will be yours’. He also recalls his father telling him that his will provided for his estate to go first to Jo, and then for it to be split among the children. Jo also said similar things during James’ childhood. However, James never saw any of their wills until around the time of this litigation.
James also recalls that Wayne told him in 2003 that Wayne’s parents would leave Bridgefield and Pinegrove to him (ie Wayne) ‘so it’s staying a part of our farm. It won’t be split. I don’t want to hand on the farm like Pop is doing. It has to be equal between the three of you.’
As already mentioned, James was a very good student and, after completing high school, undertook a Bachelor of Agricultural Economics degree at the University of Sydney, where he seems to have thrived. When he told his father what he intended to study, his father said:
“An agricultural business degree is probably more helpful in the longer run than an agricultural science degree. They are dime a dozen and there are plenty of agronomists around but not that many people are trained in farm business and know about that sort of thing.”
James had the benefit of a scholarship that covered HECS but did not cover all of his costs of living at St Andrew’s College. His parents paid the balance of his fees for his first year but, from his second year onwards, he was self-funded, including because he qualified for independent rate youth allowance.
James usually returned to the farm during university holidays. He worked on the farm in these periods and also took part-time seasonal roles doing agricultural jobs. He worked for GrainCorp Technical Services in Temora during the 2001/2002 and 2003/2004 harvest periods. He worked for Ricegrowers Limited on their Easter Show stand in 2002. In 2003, as part of his studies, he undertook a four-week work experience placement on a rice farm near Deniliquin. Wayne helped him obtain this position. From time to time he looked after the farm while his parents were away for short periods.
For his degree, James wrote a thesis on the subject of incentives in the commercial services remuneration model adopted by AWB Limited. He discussed his thesis with his father frequently. He graduated in about March 2006.
In his final year of his undergraduate degree, James obtained a position with the KPMG graduate audit program, which commenced in February 2006. He indicated his interest in working in the Consumer and Industrial Markets division and was hired to join the audit team in that division. This was his main area of work for the following six years. He sought out clients in the agricultural sector. He also joined the Australian Institute of Company Directors.
He was assigned to the Qantas audit which, at the time, was the largest audit in the division and was given the highest level of customer service.
“I kind of want you to study medicine because I didn’t take the same opportunity and you are good with blood and guts, but you don’t want to be at uni forever. Do law then you can be out working and plus you will be more use to us then on the farm, I won't have to pay one of those tinny bastards then. You might actually save me some money!”
Hannah said that she was not particularly interested in law but that she chose it ‘based on Wayne’s comment that it would be useful to the farming business’.
She was anxious about leaving the farm for university. She spoke to her father about this and he said that ‘the farm will always be here’. He added:
“Well, whatever we do for one, we do for all three. So, just as James can decide to come back to the farm, you will have the same chance. Whatever we do we do equally. This includes the farm. There will be no favourites. That's how your mum and I have set it up in our wills - everything is to be split equally.”
Hannah said that the promise of obtaining a third of all of Wayne’s property was ‘an expectation that shaped all [her] plans for [her] life’. She says that if Wayne had not promised that the farm would always be there for her, she would not have chosen to study law at the University of Technology or have pursued job opportunities in a commercial law firm. She believes she would instead have studied medicine at university. Had she done so, she says that she would ‘probably have left the [farm] after High School and aside from social visits, would never have gone back’.
Hannah recalls a conversation with her father during her third year of university when she was about 20 years old. The conversation concerned a family that was in litigation over a farm that had been left to three children as tenants in common in equal shares. Wayne reassured her that it would not happen to her and her brothers. He explained how his and Jo’s mutual wills operated. Hannah gave evidence that they then had the following exchange:
“Hannah: Yeah – a third, third, third, right? That’s what I understand the Kerr parents said in their wills.
Wayne: Yes, the farm will be split evenly between you three. No one will be left out.”
Hannah received a graduate offer from Clayton Utz to commence in April 2009. However, she deferred acceptance for a period of six months. Her parents were planning an overseas holiday and asked if she could move back while they were away. Hannah moved back to the farm but was not paid for any of her time while she stayed there. She had some modest savings and took out a personal loan for $15,000 to tide her over until she began work with Clayton Utz later in the year.
Hannah says that she deferred the start of employment with Clayton Utz on the faith of Wayne’s promise that one day a third of the farm would be hers.
Once she did start at Clayton Utz, she did well. She worked mostly in dispute resolution.
James did well at KPMG. In January 2007, he was promoted to Accountant 2. In July 2007, he was promoted to Senior Accountant 1. In July 2008, he was promoted to Senior Accountant 2. In January 2009, he was promoted to Assistant Manager 1 after only six months in his prior position. This was an unusually early promotion, which typically required a full 12 months in the previous role. He completed the chartered accounting program and became a chartered accountant in February 2009. He became Assistant Manager 2 in January 2010 and Manager in January 2011.
In 2006 and 2012, James travelled to the United Kingdom and New Zealand in the course of his work on the Qantas audit. He undertook a graduate exchange to KPMG USA in 2007. He drafted contributions to the Airline Disclosures Handbooks series and supported the KPMG Global Airline Service Team by providing market research and accounting advice responses to other airline teams within KPMG.
At the same time, he was recognised by the KPMG Department of Professional Practice as a subject matter expert in the application of AASB141 Biological Assets, which is the accounting standard that prescribes how to account for biological assets such as those produced on farms. He provided advice to several other audit teams across Australia as to the application of AASB141, including a lavender farm in Tasmania and a feedlot in the Perth region. He also supported the partners in charge of the Agriculture Client Service Team with monthly news distributions, ad hoc projects related to market research, client targeting and the preparation of team meetings.
During the time at which he worked at KPMG between 2006 and 2012, James continued to make regular trips back to the farm. He tried to take annual leave at about harvest time so as to be able to spend time with the family at Christmas time and assist with at least some of the harvest work, but this was not always possible. He also spent weekends and long weekends visiting the farm during this period.
Wayne and Jo purchased Arizona and Ivanhoe in 2008. Settlement occurred in early 2009. The fact of this purchase is not of particular significance for the plaintiffs’ case, save that they say their parents informed them of the decision and that they felt involved in the process. So much can be accepted.
However, Abe contends that the opportunity to acquire these properties was first raised in a discussion between Abe and Wayne, on the one hand, and the then-owner, Ms Henman, on the other. As Abe recalls it, he first suggested that ‘we’ (meaning, presumably, Abe and Wayne or possibly Abe, Wayne and Jo) could purchase the land. He says that Wayne responded to the suggestion by saying:
“Good idea. Great opportunity to get him to start his farming career. It’s a good motivator for him.”
Wayne and Jo subsequently acquired Arizona and Ivanhoe.
At this point, Abe was about 21 years old and living in a unit in Wagga Wagga with Jenna. They had a young son with particular healthcare needs. Abe was commuting daily to work on the farm, which required him to leave home at 5:30AM each day. Arizona had a homestead on it, which created an opportunity for Abe and Jenna to move onto the farm. Abe and Jenna moved to Arizona in about April 2009.
According to Abe, after the purchase he and Jenna received a visit from Wayne who said:
“We are only buying these farms because you’re coming home. If you didn’t want to come home, we probably would have sold it all. It will be yours make sure you do a good job.”
“You will be responsible to get it [ie, the new properties] up and running and make sure that it’s included in what we are doing with the farm. I am getting this for you to move back at the farm. You need to do the roads and work hard to pay the debt. You are working towards getting your own land.”
“A divorce is expensive and I don’t have the health or the money to afford it. I will buy them in my name but I am getting them for you.”
The plaintiffs disputed Abe’s account. They especially disputed that Abe could possibly have had the more detailed recollection contained in his second affidavit, given that this detail had not been included in his first affidavit. They submitted that Abe’s evidence in his later affidavit must be recent invention. They also relied on evidence from Jo who generally disputed everything said by Abe.
As with many aspects of the family history, it is very difficult to form a view as to what Wayne had in mind when he and Jo purchased Arizona and Ivanhoe. It is however necessary to form a view as to whether Wayne said the things which Abe attributes to him.
Although there were aspects of Abe’s evidence that I found unsatisfactory (as to which, see paragraphs [260]-[261] below), I am not persuaded that the evidence about the purchase of Ivanhoe and Arizona contained in Abe’s March 2024 affidavit was recent invention. The evidence in his December 2022 affidavit was less detailed, but even there Abe gave an account in which Wayne said that Arizona and Ivanhoe were purchased for him. The two accounts are consistent so far as the substance of the evidence is concerned.
It was shortly after the purchase of Arizona and Ivanhoe that James considered purchasing Currawong, which borders the eastern boundary of Pinegrove. He prepared a detailed tax and cashflow forecast for the property in 2009, which he discussed with Wayne and Jo. James did not consider that the purchase would be viable unless it were farmed by Wayne, either on a contract basis or in a share-farming arrangement. However, neither Wayne nor Jo was supportive of the proposition. For her part, Jo said that she believed James would be better off investing in a non-farm asset because the region had been in drought for eight or nine years at this point and she did not want James’s money to be tied up in the farm as well.
James recalls a more pointed discussion about the matter with Wayne in which Wayne said:
“No, we don’t think you should do it, because it will upset Abe and he won’t want to work on our farm anymore. He will be very jealous of you because he doesn’t have the ability to buy land yet and he might leave the farm.”
I accept that Wayne said this. Given the state of the relationship between James and Abe (which was generally bad), it stands to reason that Wayne would have mentioned Abe in this way in this context. James’s proposal would have required Wayne, whose Parkinson’s disease was worsening, to farm Currawong in circumstances where Wayne was already heavily dependent on Abe to farm his own properties. The proposal never seems to have been raised with Abe, but Abe would have been justified in thinking that the arrangement was one that benefitted James more than it would benefit either Wayne or Abe.
Not long after this, Wayne and Jo decided to purchase Currawong for themselves. It was purchased in Jo’s name in February 2011. James says that shortly before this occurred, he had had the following discussion with his father:
“[James]: Dad, I’m a bit disappointed that you’re buying Currawong even though it is something that I came to you about and something that I wanted to do.
[Wayne]: Well, it’s too good a farm to lose and it will be good for us. I’m going to put it in your Mum’s name so that she feels more connected to the farm.
[James]: I’m still disappointed. We could find a way to make what I proposed work.
[Wayne]: Listen, this is how it is going to happen. But eventually the farm will be split between you three, and we will make sure that this goes in the part that is yours.”
This evidence may be contrasted with Abe’s evidence of what occurred in connection with the purchase of Currawong. Abe was involved in the purchase in that he discussed the merits of the decision with Wayne, accompanied Wayne in meetings with Rabobank concerning the purchase, and spoke to the agent. He had an expectation that Wayne would purchase the property in his (Abe’s) name or else buy it in his own name and then transfer it to him at a later time.
Abe was disappointed that Currawong was purchased in Jo’s name. He recalls that Wayne said that he had done so ‘because she threatened a divorce again’. According to Abe, when he asked what was to happen with the land, Wayne said, ‘Don’t worry about it. I will get it sorted and make sure you get it’.
Jo, in turn, disputes Abe’s account of how Currawong was purchased. She says that she never threatened to divorce Wayne and that the decision to purchase the land was made entirely by her and Wayne. She says it was put into her name to reflect her own contribution to the farm over many years.
Thus, each of James, Abe and Jo contends that Currawong was purchased for their own ultimate benefit. These divergent accounts of what occurred in connection with the purchase are not easily resolved. Nevertheless, it is necessary to reach a conclusion as to whether either James or Abe was justified in thinking that they would eventually come to own Currawong. In my view, neither of them was justified in taking that position. The land was purchased by Wayne and Jo and was placed into Jo’s name. I can accept that each of James and Abe hoped that, eventually, Jo might leave the land to one or other of them in her will. But neither James nor Abe ever seems to have had a discussion with Jo about this matter at the time. There is no evidence that Jo made any representations at all about what she would do with the land. I will therefore proceed on the basis that Currawong was purchased for the benefit of Jo, into whose name it was transferred.
Wayne did nevertheless help James to acquire a property at about this time. On 20 July 2011, Wayne lent James $55,000 for a deposit on a property in Cammeray. James repaid this loan in due course. He still owns this property.
Wayne offered to transfer the whole farm to James in the late 2000s.
James only mentioned this 2008 or 2009 offer in his evidence very briefly. He said the conversation occurred while Wayne and Jo were present. Wayne said the following:
“Why don’t I just hand the farm over to you now, and let you manage and run the farm?”
James says that he was shocked by the suggestion as he was only 24 or 25 at the time and had not yet become a Chartered Accountant. He rejected Wayne’s offer. He told Wayne that he thought Hannah and Abe should be involved in the discussion. James said that he took Wayne’s offer as an expression of confidence in him and that it confirmed his understanding that he would have a share of the farm in the future.
Further evidence about this offer came to light in the following way. On 11 March 2021, the solicitor for James and Hannah swore an affidavit on information and belief in support of their application to extend the caveat over the farm properties. The solicitor’s affidavit included the following at paragraph 32:
“I am instructed that there was an occasion in the late 2000’s when Wayne offered to transfer the [farm] to James, when both Hannah and Jo were present. Wayne said to James words to the effect:
‘I’ll sign all of the farms over to you and you can run it if you want to’.
Hannah was upset by this as no consideration was apparently given to her and it was contrary to the years of dedicated work that she had put into the farms and the promises and assurances and the expectations from her father that she had grown up with.”
Cross-examination revealed that Hannah was not the source of this paragraph. She had no recollection of this event, although she did not say positively that it did not occur. James accepted in cross-examination that he may have been the source of the paragraph. In any event, he confirmed that his father made the offer referred to in paragraph 32 of the solicitor’s affidavit. He also confirmed that Jo was present when the offer was made. He could not however recall whether Hannah was there or what her reaction to this offer may have been.
I find that the offer was made. Although the evidence as to whether Hannah was present differed between James’s affidavit evidence and the version of events relayed by him to the solicitor, it is very likely that Hannah was present when it occurred, because that was James’s initial recollection at the time of instructing his solicitor in 2021. I therefore find that she was present. I do however accept that Hannah no longer recalls the episode.
“If you all want to come back to the farm, as we have said to you, then we are going to need more land.”
By 2012 and possibly earlier, Wayne was giving serious thought to transferring some of the properties to Abe, who by this point was very heavily involved in doing the actual farming work.
In January 2012, James wrote his father a long letter which began, ‘You asked me what I would do in your position about the farm’. The letter identified three issues that James thought Wayne needed to address, being:
“1. Paying off debt incurred and setting up the farm as your superannuation fund that you will need for the rest of your life
- Developing the most effective succession plan for the farm assets
- Giving Abe a taste of real financial responsibility to make him a more mature individual.”
“- Unresolved succession of Bridgefield and Pinegrove assets
- Current third/third/third plan (broadly agreed to)
- Changing format of farming from small family concerns to fully fledged corporate farms and the need to ensure that succession is considered in a business sense (with transactions at arm’s length) and not seen to favour any individual
- Hills and future potential for gold mine and therefore potential value difference
- Career intentions of family members
- Tax implications of any transactions.”
“To date there had been no proper succession plan discussed with the family apart from the equitable third/third/third policy. There has been some discussion however Hannah and me have not been included in this which I am uneasy about. I have stated my intention is to be somehow involved in the farm but this involvement has not been formalised and this I feel should be taken into account...”
In May 2012, James moved to Santiago, Chile, to take up a secondment with the BHP Base Metals (later BHP Copper) audit team as the overall group audit Senior Manager. In that role, he oversaw seven audit teams, of which two were in Chile and the other five were in locations around the world. He also oversaw a number of technical specialists. The BHP opportunity followed an earlier offer that had not come to fruition, namely a secondment to work on the South African Airways audit in Johannesburg.
After about 12 months in Chile, James was promoted to the position of Gerente Senior (Senior Manager) with KPMG Chile. During his period living in Chile, James’s annualised salary increased from AUD112,189 for the year ending 30 June 2012 to AUD171,691 for the year ending 30 June 2015. This was more than he would have been paid by KPMG Australia.
In early 2012, while still in Laos, Hannah spoke to her father about not returning to Clayton Utz when she came back to Australia. He did not protest when she said she was ‘thinking of coming back home instead’. Hannah took comfort from the fact that Wayne was not opposed to the idea of her returning to the farm. Seemingly on the basis of this comfort, she decided to resign from Clayton Utz ‘and return to the [farm]’.
Hannah resigned on 23 February 2012. At the time she did so, she had no alternative employment arranged. She had not had a serious discussion with her father about what she would do on the farm beyond the one in which he said he was not opposed to the idea of her coming home. She says she was ‘expecting to return to the [farm] full-time and in turn, be paid as an employee on that basis’.
Hannah did not however intend to return to live on the farm. There was no house suitable for her and Jarrod to do so. Instead, her intention was always to move with Jarrod to a house he owned in Narrandera, 137km from the farm.
In early 2012, after resigning but before returning to Australia, Hannah had a rather more frank discussion with Wayne about coming back to the farm. He made very clear that the farm was at its limits financially and that it could not support her as well. Wayne said that she would have to seek employment off the farm.
Hannah therefore took work elsewhere. In May 2012, she took a job with Sauce Communications, a communications company in Leeton that operated in the agricultural sector. She resigned in September that same year to take a job at Murrumbidgee Catchment Management Authority (MCMA) in Wagga Wagga as a community engagement officer. While in between jobs she worked at the farm. In May 2012, she assisted with sowing; in June and August, she assisted with spraying for winter weeds. Her evidence continued:
“I also attended to general farm maintenance, such as gutting and pulling down old sheds and houses, pulling down and/or erecting fences, renovating houses on the farm, clearing and on selling scrap metal, tidying and organising the farm workshop, machinery and equipment maintenance and repairs, as well as business administration and management for Wayne.”
Wayne and Jo separated in September 2012. Jo moved to a rented home in Temora. Wayne stayed at Oaklands, at least in the first instance. He later moved into the homestead on Arizona and Abe moved into the farmstead on Oaklands.
Wayne and Jo’s separation coincided with Hannah’s change of employment to MCMA. For some time after she started at MCMA, she would occasionally stay with Wayne on weekends. She did a lot of domestic work for Wayne as well as some farm work during this period, although she was not paid for it. Although I accept that Hannah did assist with the farm during this period, it needs to be put into perspective. She did not do anything like the amount of work that was being done by Abe, who by this stage was living on the farm full-time.
The arrangement referred to in paragraph [134] did not last long. Hannah and Abe had a terrible relationship. She argued with Abe and refused to invite him to her wedding to Jarrod, which took place on 1 June 2013. This caused a lot of tension between Hannah and her parents. In the end, they reached a compromise. Wayne and Jo would contribute $5,000 towards the wedding on condition that Abe was invited to the ceremony and for photos, but he would not be invited to the reception. Unsurprisingly, Abe did not even attend the ceremony. The incident caused a serious fracture in Hannah’s relationship with her father.
At around this time, Wayne and Jo were in discussions with Cole Levy of RSM Bird Cameron about what Mr Levy described, somewhat loosely, as ‘succession matters’. These discussions occurred between July and September 2013 and involved Abe and his then wife, Jenna.
James visited Australia in the first half of the year, probably in May and possibly to attend his sister’s wedding, but this is not clear. He offered to take a leave of absence to help his father to ‘start working through’ the matters about which he (Wayne) had been speaking with Mr Levy. However, James said that he:
“…could not have a decent discussion with Dad and eventually the acceptance became too conditional for me to give (i.e. I had to live with Dad etc).”
By early August 2013, Wayne and Jo had decided that Abe should become a director and shareholder of the Bridgefield Company. They were also considering a proposal for Wayne to transfer Oaklands and Bellview to Abe. On 2 August 2013, Mr Levy met with Wayne, Jo, Abe and Jenna to talk about these issues. That week, Mr Levy also contacted James, who was by now back in Chile, to discuss the issues but the evidence does not allow me to form any conclusion about what they discussed at this stage.
James spoke to his mother at around this time. She said that she and Wayne had been discussing how to split assets between them and that they were ‘thinking of transferring some of the farm to Abe’. She told him that if he wanted to ‘have a say in this’ then he had ‘better come home now’.
On Monday, 5 August, Mr Levy wrote a long letter to Wayne, Jo, Abe and Jenna setting out an ‘action plan’ for the matters discussed at the meeting held the previous Friday. The letter was headed ‘Succession Matters’ and identified the following six matters as ‘Future Objectives’:
“1. Maintain a profitable and growing farming enterprise.
- Financial Security for - Wayne
- Jo
- Abe and Jenna
- Remuneration/Reward for Abe.
- Appropriate succession planning.
- Reduction of farm debt.
- Divorce/Settlement.”
James received a copy of this letter. He responded in the form of detailed handwritten annotations which he forwarded to Mr Levy. As to the objective of ‘succession planning’ he noted ‘we are not at this stage yet. No research of models has been performed.’ He described the proposal to transfer Oaklands and Bellview to Abe as inequitable.
Mr Levy responded to James’s comments by email on 7 August. He pointed out that nothing was yet ‘set in concrete’, but that ‘everything in the action plan [is] per your parents’ wishes’. As to the proposal to transfer Oaklands and Bellview to Abe, Mr Levy said that ‘this is per Wayne’s wishes’.
James wrote a comprehensive response to Mr Levy. He pointed out that the ‘Future Objectives’ in the letter did not take into account any of his or Hannah’s wishes. He said that the ‘succession’ model was one that his father had raised previously and which had caused ‘angst’ and ‘massive problems’ in the past. He described it as the first step on a slippery slope. He described the risk associated with the plan as being a risk that the ‘business splits’. He said:
“I and my sister do have issue with farm being just given to our brother as this seems to us to be in a direct contradiction to an often spoken about concept of equality in terms of the farm land. The general rule we have always been aware of was third:third:third. Any change from this now seems to be unfair and unfavourable to the two non farming children.”
“In the interests of equity, business assets should be split between estate beneficiaries on an equal basis. Whilst the Family Provisioning Act uses the basis of needs of the estate beneficiaries, this acts as a tax on those estate beneficiaries and assumes that beneficiaries who have assets of their own should not participate equally in a distribution. This is not an equitable principle .”
In fairness to James, his covering email said that this section was not well drafted. I do not take it to represent his final thoughts on all matters concerning family succession.
James had several discussions with his parents about these matters in August and September. After one such discussion he followed up with an email on 26 August 2013, which he also copied to Mr Levy, containing ‘points and questions’ about the issues. His email included:
“I have to be open here, but one of my main concerns is that this transaction could be seen as effectively an early inheritance. I want to understand how much of an impact this proposed transaction is going to have on the long spoken about ‘third/third/third’ distribution that has been the discussed as being the general rule of how Dad and Mum’s inheritance will work.”
“Despite last night’s conversations, I still want to send this to you…”
“Dad. I am not at all suggesting that you are ‘past it’, ‘dead already’, or have ‘lost the plot’. Despite the description that has been given to me by mum in our last conversations, this is not the image that I have of you.”
The email contained a detailed proposal for a four-way split of the farm properties among Wayne, Jo, Abe and James but for all four to continue to be farmed in a single business. The proposal contained suggestions for values to be trued up on Wayne and Jo’s death to ensure that there would be an equal distribution by value among the children. The proposal also included options or rights of first refusal being granted to other family members in the event that James decided to sell or was forced to sell his parcels of land. The same was proposed in the event that Abe decided or was forced to sell his parcels.
James returned to Australia for 10 days between 20 and 30 September. During this period, he noticed that his father’s Parkinson’s Disease had worsened.
In the week commencing 23 September, James and Hannah attended a meeting with their parents, Abe and Mr Levy. During this meeting, Wayne expressed his intention to transfer land to Abe. James and Hannah opposed the suggestion. Abe recalls that they said in this discussion that they would take legal action to stop it occurring and that they would approach the guardianship tribunal ‘to challenge his capacity’. James and Hannah deny this, but the evidence includes an email from Mr Levy to Mr Kennedy (a solicitor from Walsh & Blair who would have been responsible for drafting the transfers) that same day in which Mr Levy said:
“May want to hold fire on this one.
The children (non farming) are talking about going to the guardianship tribunal owing to the father’s mental incapacity………..”
The proposal did not progress.
On the basis of Abe’s recollection, the contemporaneous note from Mr Levy and the fact that the land transfer proposal suddenly did not progress, I find that James and Hannah did say the things in the September 2013 meeting which Abe attributes to them, namely that they would take legal action to stop any land transfers occurring and that they would approach the guardianship tribunal on the basis that Wayne lacked capacity.
Hannah’s relationship with Wayne remained poor throughout most of 2013. She rarely visited. She found her father increasingly moody and erratic. She felt that Wayne had been abusive to her in relation to her decision not to invite Abe to her wedding reception. She also did not want to see Abe, whom she very much disliked. That feeling was mutual.
Hannah described two particular incidents in about October 2013. In one, her parents made an unannounced visit to her at work in Wagga Wagga. They arrived holding hands, which Hannah found remarkable given the circumstances of their separation. She said that their discussion included the following:
“Jo: We know the past year or so has been hard for you, but we want you to see us as a united front away from the farm.
Hannah: This is really odd especially given I am at work and you are separated.
Wayne: So what? We are your parents, and we are here to see you. You can make frigging time to see us.
Hannah: Why are you here? Is there something you need to tell me?
Wayne: We are wanting to get along for the sake of you kids. We don’t want any divisions. You are all equal, including you Bloss.
Hannah: Where does that leave things in terms of the farm, with your settlement, powers of attorney, wills and all that stuff?
Jo: We are working through our settlement now. We want to preserve the farm for you kids.
Wayne: You have the same opportunities as the boys Hannah. My will is still the same as it has always been.”
In the other incident, also in October 2013, Wayne became highly agitated and upset when Hannah tried to talk to him about his health. They were driving at the time and Wayne, who was in the passenger seat, opened the door and tried to jump out of the moving car.
I accept that both of these incidents occurred, although they are not easy to reconcile. Wayne must have been very emotionally labile at this point. Hannah relies on the first Wagga Wagga incident as amounting to an affirmation by Wayne of his intention to give her one third of the farms. But by that point, Wayne and Jo had already begun planning to transfer land to Abe; and tensions had got to the point that Hannah and James had threatened Wayne with legal action if he pursued the plan. On balance, it is impossible to regard the incident in Wagga Wagga as amounting to an unequivocal affirmation of Wayne’s intention to give Hannah one third of the farms.
Hannah was dissatisfied with her work and so she decided to look at other opportunities. In February 2014, she registered a new business name, Hendricks Consulting, under which she proposed to carry on a consulting business. She promoted the new business as one providing ‘professional and management consulting services to clients predominately in agricultural and environmental industries’. She said that she wanted to work with and learn from clients so she could broaden her ‘knowledge, skills and experience and transferability to the [farm]’. She spoke to her father about the new business. He was generally encouraging, saying ‘well, as I have said, the more real-world experience you can get the better. I hope you learn a lot and then you can tell me how it will work in practice’.
At about the same time as she started Hendricks Consulting, Hannah applied for a full-time volunteer role at the ATA, in Addis Ababa, Ethiopia. The role was a six-month contract to work as a communications advisor reporting to the CEO. Her application was successful and she moved (presumably with her husband but she did not say) to Ethiopia in June 2014. Hannah said in an affidavit:
“I only took on the role because at this time, I was still trying to gain experience in the agricultural industry, based on my expectation that one day, I was going to inherit part of the [farm] and would have to be in a position to run it as viable farming enterprise.
Had I known then that Wayne did not intend to keep his promise to leave me an equal share of the [farm], I would not have taken the role. My financial position at the time was poor and a volunteer position only decimated them further. I barely had any savings. Instead, I would have relocated to a capital city (any of Sydney, Melbourne or Canberra) where I could find a well-paid professional job and started to focus on rebuilding my savings.”
Before she left, she spoke to her father about the move. He said that the job sounded interesting and that she should ‘stay safe and come back’. He added ‘I will need you here’. Hannah says she took this to mean that Wayne wanted her to return to the farm and that he intended to give one third of it to her. She hoped that when she returned to Australia after being in Ethiopia, she might resume visiting her father and maybe even rebuild her relationship with him.
During the period of voluntary service, Hannah was offered a paid role as ATA Communications Director. She declined this role. She moved back to Australia in about September 2014, which involved cutting the volunteer role short by two months. She said of the decision to move back:
“My parents were finalising their divorce and had to work through their financial settlement. I wanted to be close to the [farm] during this time.”
“Had I known then that Wayne would ultimately leave the whole of the [farm] to Abe and break his promise to me, I would not have cut my assignment with ATA short in order to return home, in the belief that there might be meaningful discussions about the future of the [farm] to be had with Wayne if I did. I would have stayed in Ethiopia, completed the assignment and pursued the opportunity of future paid work if it had been offered.”
In April 2014, James had a conversation with Maritza Araneda, a new partner in KPMG Australia, while she was attending the biennial KPMG client conference for BHP Billiton. She informed him that the pathway to partnership in KPMG was very clear and achievable if he were to stay in Chile. At that time, Ms Araneda was transitioning in to replace the partner to whom James had been reporting. She told him that he could easily put himself in a position to replace her as the engagement partner after working for two or three more years in Chile. As the engagement partner, James would have had the primary responsibility of the audit of the BHP Billiton Copper business, which at the time had revenues of more than USD11 billion and assets in excess of USD23 billion. It would have been a significant promotion within the global KPMG network.
In about July or August of that same year, one of the partners of KPMG separately offered James a route to partnership in KPMG Chile. This offer was contingent on him staying in Chile. Had he accepted it, he would have taken primary responsibility for the audit of LATAM airlines or an audit of another significant client and, had he continued working in that role and had he wanted to pursue partnership, he would likely have been a partner within two to three years.
James decided not to pursue the prospect of partnership with KPMG Chile. He instead took a 12-month unpaid sabbatical, during which time he returned to Barmedman to live with his father on Arizona for about nine months. He arrived back in Australia on 9 September 2014.
James’s evidence and a significant aspect of his overall case is that he made this decision in reliance on representations which Wayne made to him as to his eventual inheritance of a third of the farm. It is relevant to note that James did not speak with his father about his move back to Australia before actually moving back. Wayne did not ask him to move back. Only after James returned did he say to his father:
“I’ve come home to help you and Mum deal with this financial settlement, as it is clear to me that it isn’t going to happen otherwise. You don’t need to go to court to sort this out. I want to make sure that the farms are safe and preserved and I’m going to do all I can to make this happen. I’ve come home, given up some good opportunities in Chile, such as partnership, but this, right now, is more important to me.”
“[James]: Dad, I am interested in seeing whether there could be an ongoing role for me on the farm. You know that I want to return to the farm. If we could make it work, I think I want to leave KPMG and just come back to the farm permanently. This business needs skills that I have such as administration, finance and risk management and I want to use them here now. I might even be able to pick up some off farm consulting too if it works out well enough with you.
[Wayne]: Alright. Let’s see what happens.”
During the period James spent living at Arizona during his sabbatical, Wayne and Jo were in the midst of their divorce. James spent much of his sabbatical working on the proposed financial property settlement between his parents. Much of his work was directed to preparing a comprehensive balance sheet as at 31 December 2014 for the purpose of better understanding their overall financial position. This involved a significant commitment on James’s part, because it required a close historical analysis of their finances and those of the farming business. He also involved himself in the business of the farm in other ways during this period. He built relationships with many of the farm’s suppliers. He liaised with the bank and other financiers, involved himself in the drafting of contracts and saw to various other administrative matters. James also did some labouring work during this period, including some fencing, sheep monitoring and so on. He assisted with that year’s harvest.
Within a few days of arriving back at the farm in September 2014, James discovered that Wayne and Abe had caused the WKB and AEB Partnership to be registered for GST purposes. Both Wayne and his accountant, Mr George, explained to James that this had been done for tax purposes. Their thinking seems to have been that it was better to split the farm income across two partners than have Wayne pay tax on all of it. Nevertheless, the Second Bridgefield Partnership had not yet been dissolved or wound up at this stage. After discussing the matter with James, Wayne said that he wanted to go back to using the Second Bridgefield Partnership, which James believed he duly did in consultation with Mr George.
James continued to prepare the accounts for the farm business on this basis up until 31 December 2014, which was the date of the settlement balance sheet. Thereafter, James accounted for the business on the understanding that Wayne was a sole trader.
“You will be looked after down the track Hannah like I have always told you. When the time is right we will work through what’s next. You need to wait. Everyone in this family needs to stop being so selfish!”
Hannah approached her mother for assistance as well, but she also refused to help.
Hannah and Jarrod bought a house that November, but they did so with no financial assistance from Wayne or Jo. Hannah did not speak to either of her parents again for several years.
“[Mr Espinosa]: We are actively bidding for the audit of the LATAM Airlines Group. We want to include you in our proposal as a named team member for this bid. We want you to come back and be part of the team. We are in with a good shot at this, and we will need all the airline audit people we can get. You’re at the top of the list because of your Qantas experience.
I think you should come and join the team as soon [as] you can. The offer we discussed a few months ago is still open. If you work on the LATAM audit and do a good job, you’ll establish yourself as a clear candidate for partnership. Think about it.
[James]: Thanks for thinking of me. I’m sad to say that it’s a no from me though. I need to be over here.”
James then told Wayne what he had done. According to James, Wayne appeared to be ‘happy and relieved’ that he had made this decision, although James does not suggest they spoke further about the topic.
According to James, if he had known then that Wayne would not leave him a third of the farm, he would not have remained on the farm in January 2015. He would instead have returned to KPMG Chile in order to take up a position on the LATAM audit team and pursue partnership.
Wayne and Jo reached a financial settlement and were finally divorced in early 2015. Under the terms of their settlement, Jo was required to transfer Currawong to Wayne and Wayne was required to pay Jo an amount equal to 50% of the net value of the farm. The amount was to be paid in instalments over a 10-year period. The extended payment period reflected the fact that Wayne needed to borrow funds from Rabobank to fund the settlement and that the farming business was unable to support a borrowing of the whole of the required funds all at once. Their agreement was designed to ensure that the farm was not broken up and sold in order to fund the divorce settlement.
In reaching this settlement, Wayne and Jo (and, no doubt, their lawyers) had regard to the balance sheet prepared by James to which I referred in paragraph [169] above.
James continued to assist his father with financial and other matters, including in securing the additional borrowing he needed to fund the divorce settlement.
Shortly before settlement was reached with Jo, Wayne made the will described at paragraph [52] above. James submitted that this will was consistent with his understanding that Wayne intended to leave the farm to the children more or less equally, but it is impossible to see it that way. It did not provide for an equal division of the farming properties.
In about April, James and Wayne had a discussion about James’s sexuality. James had not up to this point told his father or anyone else in the family that he was gay. James felt that both Wayne and Abe were very conservative about these matters and so he had not broached the issue, especially given the other matters happening in the family in the few years leading up to this point.
Following the April discussion, James sensed a significant shift in their relationship.
There were other matters also. In about June, James discovered that since April 2015, Wayne and Abe had again been using the WKB and AEB Partnership as the trading entity. This riled James because he was doing the accounts at the time and had been posting transactions on the understanding that Wayne was now a sole trader. This caused him justifiable concern for his own professional position.
James soon felt that his relationship with Wayne had deteriorated to the point where he had no choice but to leave the farm altogether. Apart from anything else, his father was not prepared to pay him for the work he was doing. He therefore decided to re-join KPMG Australia.
James left the farm in the week of 29 June 2015. He did not say goodbye to his father. Nor did his father contact him afterwards. They too found themselves estranged. James barely spoke to his father ever again.
A little over a week later, Wayne made the second of his 2015 wills which I described at paragraph [54] above. It relevantly provided as follows:
Oaklands, Bellview and Currawong were given to Abe.
Twitts, Arizona, Ivanhoe and Sunnyside were to be sold, with Abe to have a right to purchase within two years. The net proceeds of sale were to be divided equally between James and Hannah.
Wayne made a further will on 17 December 2015, described at paragraph [55] above, whereby he left his whole estate to Abe. At the time of making this will, he also swore an affidavit to explain why he had disinherited James and Hannah. The affidavit provided:
“1. My Will dated 17 December 2015 does not contain any provisions for my other two children James and Hannah because of the reasons outlined in this Affidavit.
2. My relationship with James and Hannah has deteriorated over the past and has come to a point where we do not speak to each other anymore. I do not think there is any prospect of conciliation.
3. James is an accountant and is more than capable of earning an income; he earns more than anyone else in the family. James and I have not spoken since July this year. James does not get along with my son Abe as well.
4. James would have liked to take the farm on, however not with the associated debt.
5. Hannah is a lawyer and is also more than capable of earning an income. Hannah and I have not spoken to each other since my ex wife and I separated.
6. My son Abe is prepared to take the farm on with a large debt. He has been assisting me with running the farm for approximately 10 years. Abe has not been to university, nor does he have any other trade.
7. I believe my will is fair and reasonable taking into account my family’s current circumstances.”
In mid to late 2015, there were discussions between Jim Main (solicitor), Mr George, Wayne, Abe and Jenna regarding succession issues and the farm trading entity. By this point, Wayne had decided that he wanted Abe to have the farm. At the same time, he wanted (as Mr Main put it) to secure for himself ‘an adequate income, legally secure housing and … a lump sum to purchase entry to a retirement village if necessary’. Wayne also had a desire to prevent if possible, any dispute over his will after his death.
Mr Main proposed that Wayne transfer the farms to Abe in exchange for an annual payment that would cover Wayne’s costs of living. The annuity was to be secured by a third mortgage from Abe back to Wayne.
On 1 February 2016, Wayne executed a Partnership Agreement between Wayne, Abe and Bridgeline Agricultural Pty Ltd as trustee for the Abe and Jenna Family Trust.
On 12 April 2016, Wayne executed a Deed of Annuity between him and Abe. Under this deed, Wayne agreed to transfer land to Abe in exchange for a lifetime annuity of $52,000 per annum, a life interest in Arizona and a payment if the life interest was surrendered.
Wayne and Abe also signed transfers and mortgages giving effect to the Deed of Annuity around this time. However, these were never registered.
Following his departure from the farm, James re-joined KPMG Australia, where he worked for a further 12 months. Eventually, he formed a belief that he could not resume his previous career trajectory with the firm. He believed that the opportunities that had previously been available to him at KPMG Australia were no longer available, but there was no evidence that he was justified in believing this and whether, if so, this was due to the lengthy sabbatical he had taken from KPMG Chile. He also felt that he could not return to KPMG Chile because the offer of partnership there had been contingent on being part of particular audit teams at the time the offer was made and those positions had been filled in the meantime. If he were to return to KPMG Chile it would likely have been as a local hire, which would have been less remunerative than his previous position.
In June 2016, James resigned from KPMG Australia. He enrolled in a PhD program at the University of Sydney Business School, where he also became a research associate. His area of research was transport management. He completed his PhD in April 2023.
In about 2016 or early 2017, Jenna and Abe separated.
Their separation caused Wayne and Abe to restructure the First Bridgeline Agriculture Partnership. They began trading as the Second Bridgeline Agriculture Partnership from 1 January 2019. Wayne essentially took on the partnership share previously held by the Abe and Jenna Family Trust. The partnership therefore traded in the proportions of 65% to Wayne and 35% to Abe for a period of 6 months before Bridgefield Farming became the main trading entity for the farm.
Jenna and Abe’s separation was also the impetus for Wayne and Abe’s decision to rescind the Deed of Annuity. On 4 September 2018, they executed a Deed of Revocation which revoked the Deed of Annuity. The 2018 deed recited that none of the obligations in the Deed of Annuity had ever been performed. To the extent that any obligations were pending, they were brought to an end.
Wayne’s 2018 will (the scheme of which I have generally set out at [56]) was made shortly after the 2018 Deed of Revocation was signed. It also reflected the fact that Abe and Jenna had separated.
On 27 August 2019, the Federal Circuit Court of Australia made final property consent orders in relation to Jenna and Abe’s property settlement.
In March 2018, Wayne moved off the farm to live in an apartment in Temora.
Hannah reestablished contact with Wayne in April 2018. They met at his mother’s nursing home in Temora and Wayne got to meet Hannah’s daughter, who was then one year old.
From the time he left the farm on 29 June 2015, James had no contact with his father until 1 March 2019, when he received a text message from him to tell him that his grandmother had died. James attended the funeral on 6 March in Temora. On that day, James drove Wayne from the church to the cemetery, and from there to the wake at St Paul’s Anglican Church Hall, although he says that the funeral was a ‘tense time’ for him because him and his father were estranged.
Wayne’s father, Keith, died on 4 April 2019. James attended the funeral on 12 April in Temora, as did Wayne. On this occasion, they only made passing comments to one another.
In December 2019, Wayne moved into Settlers Village, an assisted living facility in Wagga Wagga. Hannah thereafter had more frequent contact with him. She visited him several times.
Although he had revoked the Deed of Annuity, Wayne continued to be keenly interested in transferring the farm to Abe. As previously, he wanted to do so in a way that Abe could afford and which gave Wayne adequate financial security.
In 2020 and 2021, Wayne had numerous lengthy meetings with a new solicitor, Georgeina Ryan, about this and other matters. It is necessary to describe these meetings in some detail because it was in this setting that Wayne made his final decisions about his farm and his estate.
Ms Ryan obtained a Bachelor of Laws from the University of Queensland in August 1993 and obtained a Master of Commercial Law from Melbourne University in 2004. She was employed in various roles as a lawyer in regional NSW and Queensland between 1996 and 2017, when she commenced practice as a sole practitioner, trading as Regional Business Lawyers in Wagga Wagga. Additionally, between 2000 and 2003 she worked as an in-house lawyer for Rabobank in Sydney. She gave evidence and was cross-examined.
Ms Ryan was first contacted by Wayne’s accountant, Mr George, in July 2020. Mr George explained Wayne’s circumstances at a very high level of generality. He told Ms Ryan that Wayne wanted to keep his property from being taken by his son’s (Abe’s) ex-wife or some other woman in the future. He also said that Wayne believed the other children (James and Hannah) had sided with Jo in his divorce. Ms Ryan and Mr George had a further discussion a week or so later, to much the same effect but in slightly more detail. On this occasion, Mr George told Ms Ryan that Wayne wanted the property ‘to go to Abe solely’. They discussed a form of transaction whereby this might occur in a way that safeguarded the farm ‘in case Abe enters into a relationship in the future’. Several weeks later, after having received documents concerning Wayne from Mr George, Ms Ryan sent an email setting out her preliminary thoughts on the matter. She suggested that the property could be sold to Abe with a loan back, and then the loan could be assigned to a discretionary trust that benefits Wayne while he is alive and thereafter Abe and his children.
Ms Ryan first met with Wayne on 25 September 2020. He was brought by Abe, whom Ms Ryan had contacted at Mr George’s suggestion. Abe explained that Wayne had Parkinson’s disease. He also told her that he had his own lawyers in Canberra who looked after his affairs. All of this put Ms Ryan on clear notice that she should satisfy herself of Wayne’s capacity to give instructions. Although there was no challenge to Wayne’s capacity to make his final will or to enter into the transactions whereby property was transferred to Abe, it is appropriate to record that Ms Ryan was astute to this issue from the very outset and that she satisfied herself that he did have capacity both to manage his own financial affairs and to make a will. The lengthy discussions which she had with Wayne on this and numerous other occasions, many of which are recorded in notes, appear to bear out her conclusions on those matters.
James somehow learned that Wayne was planning to pay Jo out and transfer land to Abe. On 20 October 2020, he sent Wayne a letter in which he challenged Wayne about any proposal he may have to transfer land to Abe. At the time he sent the letter, Wayne and James were well and truly estranged. This letter seems to have been the first contact between them since Keith’s funeral in 2019.
The letter was simply addressed to ‘Dad’. It began:
“I am writing this [letter to] you because you have been avoiding talking about the plans for the farm. I have questions that I would like honest answers for.”
By the time of her next meeting with Wayne on 23 October, Ms Ryan had been provided a copy of James’s 20 October letter. She was therefore aware of James’s position.
Ms Ryan had by this time prepared a contract for sale of the farm properties for a total of $13 million, which is a figure which Wayne had provided to her. She explained to Wayne that under the proposed arrangement, the purchase price would be left as a debt outstanding but Abe would assume all indebtedness in relation to the farming business, which at that time came to about $4,550,000.
Their next meeting was on 18 November 2020. Abe also attended on this occasion. The three of them met for about 40 minutes, during which time they discussed the proposed contract, which was then executed. Next, Ms Ryan and Wayne met separately for about 30 minutes, during which they discussed Wayne changing his will.
In the course of this discussion, Ms Ryan raised the possibility of what should happen if Wayne were to die before the transfer was completed, and also what should happen in that event if Abe and his children were unable to take the farm. She suggested that it might be appropriate for the farm to revert to James and Hannah should that occur. In response to this suggestion, Wayne said:
“Yes I guess that would be okay. James doesn’t deserve the farm now though.”
Ms Ryan also raised the question of what Wayne should provide for James and Hannah generally. Wayne explained that a previous lawyer had advised him that it was best to leave them nothing because they would likely use anything he left them to ‘pay their lawyers to fight the will’. Ms Ryan said that she did not agree with this advice and that it was better to make some provision. She suggested that an amount of $300,000 each ‘might be enough for a court to say you have made adequate provision’. Wayne said he would think about it and that ‘Abe’s not going to be that happy’.
The reference to Abe not being happy was undoubtedly a reference to the fact that any cash to fund a legacy could only be raised against the farm and the farming business. Practically speaking, it was Abe who would have to find the funds to pay James and Hannah.
Their next meeting was instigated and attended by Hannah. They met on Sunday, 13 December for about 90 minutes, of which Hannah was in attendance for about 30-40 minutes. Hannah explained that she wanted to know ‘about the farm and dad’s will and what arrangements have been made for his power of attorney and guardianship’. Wayne said that he was transferring the farm to Abe. He said:
“I’m transferring the farm to Abe. There is going to be a trust involved so your mother or Jenna can’t get at it. It has to go to Abe; I know farm values are high at the moment but they will correct themselves. There will be another drought and I want the farm to stay as one.”
As to a power of attorney, Wayne suggested it should be Hannah and Abe. There was also talk of who should be guardians. Wayne suggested it could be Hannah and Abe. Hannah said that James would be upset if he was not included. No decision was made on this issue.
Their next meeting occurred on 6 January 2021. The purpose of this meeting was to discuss his will. The meeting lasted about 48 minutes.
Wayne explained that he had not heard from Hannah since their 13 December meeting. He also had not heard from James. He said that he had not even seen him for two or three years. He must have had in mind their last meeting at Keith’s funeral in 2019.
Wayne told Ms Ryan that James had sided with Jo in their divorce and that he had ‘overvalued everything’ in the spreadsheet he had prepared. Wayne also said ‘if I leave too much to Hannah and James it could bankrupt Abe’.
Wayne instructed Ms Ryan that he wanted to leave Hannah and James whatever cash he had, including the refundable deposit from his aged care facility. He mooted a figure of between $250,000 and $350,000 to each of them.
He said he wanted to give Abe power of attorney. He said he wanted to make Hannah and Abe guardians. He said ‘I don’t want James; he spat the dummy and he said things he should not have said’. He also said that he expected that Hannah and James would inherit from Jo. The evidence shows that this is true, although it may not have been as at 6 January 2021.
Their next meeting was on 11 January 2021. Abe was also present on this occasion. By this time, caveats had been lodged. Wayne’s initial response at this meeting was ‘I don’t understand, I’m not dead yet’. In relation to their asserted claims to an interest in the properties, he said:
“They have no grounds. I have had nothing from James except one letter in the last few years. He worked on the farm for a year during uni.”
“[Ms Ryan]: Have you thought further about the wills and powers of attorney?
[Wayne]: I don’t know what to do with them after this. James has a unit in Cammeray that he is paying off with rent. He lives with his male partner. I have not heard from him since. He sent me that letter. I didn’t hear from him at Christmas. The last I heard from James was when I started the land transfer process. I think they heard from Jo that I was paying her out. Hannah tried to invite me for Christmas. She was making half-hearted attempt[s] to talk to me. She said she wants to help. I saw her last here. She has talked and texted a few times. She is too busy though with her job and her kids. And she is not a warm personality.
I will sign the power of attorney and enduring guardianship. I want to leave the will. They deserve nothing.
[Ms Ryan]: Okay; have a think about it. I can understand this is upsetting. Let’s go through the power of attorney and guardianship.”
Wayne also instructed Ms Ryan to remove Hannah from the proposed enduring power of attorney, which he then signed.
Soon after this meeting, it became apparent that Rabobank was unwilling to agree to the proposal whereby Abe would acquire the land with such significant debt. It was this circumstance that eventually led to the revised loan agreement which I described at paragraph [5].
However, in the meantime, Ms Ryan and Wayne continued to meet and discuss other matters, including the caveats and Wayne’s will. On 11 February 2021, they met for Wayne to execute the first of his 2021 wills, being that described at paragraph [58] above. This will provided legacies of $300,000 to each of James and Hannah, to be paid over five years.
Ms Ryan and Wayne had a further lengthy meeting to discuss the caveats on 24 February 2021. Ms Ryan’s evidence about this meeting assumed some significance for the plaintiffs’ case. On this occasion, Ms Ryan and Wayne were discussing correspondence from the plaintiffs’ solicitor in which a mediation had been proposed in relation to the caveat issue. As to the substance of their claims, he explained his reasons to Ms Ryan. These included:
“I would never promise 1/3 each. It would send the business broke. Abe has done all the work….
James has only spent about 12 months on the farm. He likes to think he was the overseer while Abe was the worker…Abe has been good to me; James has not helped at all.
…
He took her side. He assessed assets and stuck up for her.
Hannah has done nothing on the farm. She comes and just takes stuff. She did not want me to give her away at her wedding…
There were no promises made. If I had the money, the best thing would be to make it 1/3, 1/3, 1/3 but I do not.
…
I will leave $600,000 between the two of them.
I don’t know what this ‘good faith’ in the letter is; they have been obnoxious from the start.”
It was the reference to what Wayne would have done if he had ‘had the money’ that the plaintiffs particularly relied on. An aspect of their case is that this note tends to confirm their contention that Wayne had promised them one third of the farm each.
Ms Ryan was cross-examined about this matter, and about her handwritten note of this meeting from which the above testimony was reconstructed. That handwritten note relevantly appeared as follows:
“Best thing if had money
1/3, 1/3, 1/3 but not
No promises made.”
The second line of this note is a little cryptic. One possibility is that it was originally written as ‘no’ but was overwritten to say ‘not’. Ms Ryan was unable to say exactly what the word was but suggested that it could have meant: ‘But there’s not. There’s just not’, meaning that he would leave them all one-third each if he could afford to, but that there was simply not enough money for that to be viable. I accept that that is the most likely explanation of what Wayne said. I do not understand the note to amount to an admission to Mr Ryan that he had promised them one-third each.
It is next relevant to note what occurred in a meeting on 15 March 2021. By this point, the plaintiffs’ application to extend the operation of their caveats had been refused. On this occasion, Wayne repeated many of the matters he had already mentioned to Ms Ryan as to why he felt that legacies of $300,000 each were appropriate. As before, his reasons included that ‘that is the amount the farm can handle’. He also said ‘James and Abe do not get on and the farm is not big enough to split up’.
Rabobank’s disinclination to agree to an arrangement whereby Abe assumed all of the debt contemplated by the December agreements meant that it was necessary for Ms Ryan and Wayne to revisit their proposal. They met to discuss this on 26 March 2021. Ms Ryan pointed out that this may present an opportunity for him to rethink his decision to provide only $300,000 each to Hannah and James. Ms Ryan suggested a figure of $500,000 each. Wayne said ‘Abe will not be happy; but [it’s] still the cheapest farm he is ever going to buy’.
On 20 April 2021, Hannah commenced guardianship proceedings in NCAT. Her application was twofold. She sought an order for the appointment of a guardian on the basis that Wayne was incapable of making decisions for himself. She also sought a financial management order. This angered Wayne enormously. Wayne and Ms Ryan attended an online directions hearing for those proceedings on 6 May. Before that hearing, Wayne said to Ms Ryan:
“Abe looks after me. He’s doing fine. I make my own decisions. I decided to go to Settlers…I do not want this. How can she do this to me?”
“I’ve read the affidavits. They are nasty. Hannah did not do most of the helping when we were overseas. My father was still about then; he looked after the farm. She might have helped a bit. She also had an account for goods in town. I don’t think they should get anything. They are nasty; I am doing this will under your advisement only. I will need to check if Rabobank is happy with mortgage.”
There is no doubt that Wayne was very upset and angry about Hannah’s application to NCAT. However, at another hour-long meeting at Settlers Village on 21 May, Wayne told Ms Ryan that he now wanted to give Hannah and James $600,000 each. It was apparent from evidence given by Ms Ryan in cross-examination that, by this stage, his attitude towards making provision for Hannah and James had mellowed, despite his anger about these proceedings and about the guardianship proceedings. The notion of making more provision for them was entirely his idea. He also said that Hannah should be appointed as substitute enduring guardian in case ‘Abe gets hurt or dies’.
Ms Ryan prepared a revised will, enduring power of attorney and enduring guardian appointment according to the instructions given on 21 May. They met at her office on 24 May to go through the documents and for them to be executed. She met with him for about 80 minutes on this occasion. He signed his final will, as described at paragraph [59], as well as the revised loan agreement.
He subsequently executed another appointment of enduring guardian in June 2021 in favour of his sisters, Janet and Wendy. He wanted them to be the ones making decisions about medical matters, which is a conclusion he reached after discussions with his doctors.
“36.1 The Vendor:
(a) Acknowledges part payment being the value of the Rabobank liability assumed from the personal guarantee of the vendor of $4,550,000;
(b) Has agreed to assist the purchaser in completion of this sale by lending to the purchase[r] the balance of the purchase price on the terms and conditions of the Loan Agreement Annexed to this contract.”
There was a form of loan agreement annexed to the contract. It provided for an advance of $8,450,000 for 30 years at interest of 0.75% per annum, payable on the first day of each month. This equates to interest of $63,375 per year, or $5,281.25 per month.
The variation of loan agreement (the Loan Variation) stated that it was executed on 11 June 2021. I note Ms Ryan’s evidence that this occurred on 24 May 2021, but no point was taken about this discrepancy. I note that Ms Ryan did otherwise attend Settlers Village on 11 June 2021 for the updated appointment of enduring guardian to be executed.
The Loan Variation recited that Wayne wished to commence succession planning in relation to his land and business. It referred to the contract of sale and to the form of loan agreement annexed to that contract and then recited that ‘the parties have agreed to replace that Initial Loan Agreement with this Loan Agreement and proceed to complete the contract for sale’. It then recited:
“D. This Loan Agreement is intended to document as part of Wayne’s succession planning the following matters:
(i) A gift to Abe representing an early inheritance and acknowledgement of the work Abe has done on the farm since he started work on the farm when he was 17. This amount does not reflect the full value of the gift being made to Abe as the full value is dependent upon him meeting his obligations under this agreement and on him fulfilling his father’s wish that the farm remain intact for future generations;
(ii) An amount of $1,200,000 secured by a first mortgage to go into Wayne’s estate so that he may make provision for his other two children, James Bushell (‘James’) and Hannah McPherson (‘Hannah’) if he so decides;
(iii) Payments of $50,000 per annum to meet Wayne’s financial needs in retirement. These payments are being paid by Abe as interest on the $1,200,000;
(iv) Wayne is to have the ability to call on Abe for additional amounts of $50,000 if he needs them to meet his medical and living expenses;
(v) If Abe decides in the next 10 years that he wants to sell the land and no longer be a farmer he has an obligation to pay some of the equity value of that land to James and Hannah.
E. Abe and Wayne acknowledge that James and Hannah have brought legal proceedings against them in relation to the farming land. Abe takes the land on notice of those proceedings and agrees to bear all the costs associated with those proceedings including the risk of those proceedings being successful. It is noted at the date of this agreement that Hannah has withdrawn from those proceedings.”
An information table specified the Principal Sum as $1,200,000, the interest rate as 4.166% per annum and Security as a first registered mortgage over the Secured Land, which was defined to be Twitts.
The body of the Loan Variation provided that Wayne agreed to advance the Loan to Abe on the terms of the agreement. The Loan was defined to be the total of the Unsecured Amounts and the Principal Sum. The Unsecured Amounts were defined to be certain amounts, if any, payable by Abe under clauses 5, 7 and 8.
Clause 5 required Abe to make contributions towards Wayne’s housing, food, medical care and medication.
Clauses 7 and 8 were as follows:
“7. Claim by James
7.1 Abe must pay all costs and liabilities associated with the Claim including:
(a) legal costs; and
(b) any amount agreed between the parties in settlement of the Claim;
(c) any amount ordered to be paid by the Supreme Court in respect of the Claim;
and indemnifies Wayne against all liabilities in relation to the Claim.
7.2 Abe acknowledges the Claim and agrees to settle the purchase of the Land with notice of the Claim.
7.3 Abe will not bring any claim against Wayne as vendor under the Property Sale Agreement in respect of or arising out of the Claim and indemnifies Wayne against all costs and liabilities in respect of the Claim.
8. Sale of Land
8.1 Abe agrees to pay:
(a) One-quarter of the Net Sale Proceeds to James less:
(i) 100% of any amounts paid by Abe in respect of the Claim if Hannah ceases being a party to the Claim; or
(ii) 50% of any amounts paid by Abe in respect of the Claim if Hannah remains party to the Claim;
(b) One-quarter of the Net Sale Proceeds to Hannah:
(i) without deduction if Hannah ceases being a party to the Claim; or
(ii) less 50% of any amounts paid by Abe in respect of the Claim if Hannah remains a party to the Claim;
if Abe sells the Land within 10 years from the date of this deed.
8.2 The amount payable under clause 8.1 reduces each year by 10%. For the avoidance of doubt, as an example in year 5, the amount would be 50% of one-quarter of the Net Sale Proceeds and after 10 years from the date of this loan agreement, no amounts are payable under clause 8.1.
8.3 The amount payable under clause 8.1 also reduces by:
(a) If Wayne has died by any Bequest received by James Bushell or Hannah McPherson from the estate of Wayne; or
(b) if Wayne is still alive, by any amount of the Principal Sum repaid to Wayne on the sale of the Land.
8.4 This clause does not apply if Abe sells the Land to fund a purchase of other agricultural land on which Abe intends to carry on farming either in Abe’s own capacity or in a Related Entity.
8.5 Abe charges the Land and any land purchased in the future as [a] result of the sale of the Land with the obligations under this clause.”
The salient facts in relation to the caveat proceedings are as follows.
James and Hannah caused caveats to be lodged on 20 December 2020. The estate or interest specified in the caveats was expressed to be an equitable interest in land either ‘as beneficiary of constructive trust by virtue of representations by Registered Proprietor relied upon by Caveator to [his or her] detriment or beneficiary of a resulting trust by virtue of financial contributions or equitable charge in favour of Caveat or by financial contributions’. Wayne caused lapsing notices to be served on 11 February 2021. Hannah and James made an application before the Duty Judge in Equity on 11 March 2021 for an order under s 74K of the Real Property Act extending the operation of the caveats. The application was refused in the circumstances described at paragraphs [9]-[10].
Settlement of the contract for sale of the properties occurred on 27 August 2021, after the Loan Variation had been entered into.
On 6 November 2021, Hannah and James caused further caveats to be lodged against the properties. The estate or interest specified in the caveats was an ‘equitable interest arising from the Registered Proprietor receiving a transfer of the properties with notice of the claim by the Caveator as a beneficiary of a constructive trust against the previous Registered Proprietor arising from representations made by Wayne to James.’ Between December 2021 and April 2023, the parties were in dispute about these caveats. Eventually, Abe caused lapsing notices to be served on 28 April 2023. Hannah and James brought urgent proceedings by way of notice of motion in these proceedings for the caveats to be extended. This application came on before the Duty Judge in May 2023. The Court extended the caveats for a brief time until the dispute could be heard and determined on a contested basis before Hammerschlag CJ in Eq on 13 June 2023. On that day, the parties reached an agreement for the caveats to be removed in return for Abe giving an undertaking to the Court in the following terms:
“I, Abraham Edward Bushell, undertake to the Court not to further encumber the properties identified in Caveats AR587648 and AR587723 other than:
(a) For the further bona fide and reasonably necessary expenses of the farming business carried on the properties to a maximum of $2,000,000; or
(b) By further order of the Court.
I, Abraham Edward Bushell, also undertake not to dispose of any of the above properties until further order of the Court.”
On 24 March 2021, Hannah received a call from Constable Lyons of the NSW Police. Constable Lyons was investigating a complaint that Hannah had ‘been visiting [Wayne] frequently in the past few weeks at Settlers and bullying, threatening and intimidating him.’
Hannah explained that she had not been in Wagga Wagga at the time of the alleged incident. However, since she worked within the Australian Federal Police by this stage, she was required to self-report this incident to the Professional Standards Unit, which commenced an internal investigation. She was cleared from any wrongdoing on 13 April 2021.
A police report of the incident was in evidence. Although it was largely redacted, it included the following:
“The victim owns a farm and has recently been placed in Settlers Village in Estella due to his health and age. The [next of kin] has been working at the farm and has taken over the business. The family is currently going through court matters in relation to the ownership of the farm/business.
Police were called due to the [next of kin] and P/R [redacted] concerned that PN [redacted] and Hannah MCPHERSON [redacted] were visiting the victim at Settlers Village and believe they were trying to persuade him in relation to the farm/business.
Police attended and spoke with the victim, P/R and NOK. There has been nothing threatening said and police advised if the PNs do turn up and the victim does not want them there then to contact police however at this stage the PNs have not committed any offences. Police advised if they are concerned they can apply for an ADVO themselves at court.”
Abe prevaricated when cross-examined about this incident. He was reluctant to be drawn on the issue. He eventually said that he did not recall speaking to Constable Lyons. The plaintiffs submit that this was a device to avoid the issue, that he did make the complaint to the police and that the complaint was false to his knowledge at the time he made it.
There is force in this submission. The police report strongly suggests that Abe was the source of the complaint. It seems remarkable that he would not recall speaking to the police about such a matter. I find that Abe was the person who made the complaint. I also find that he had no proper basis for making the complaint at the time he did. It was not to his credit that he was so unwilling to speak about the matter in the witness box.
This event was traumatic for Hannah. She says – and I accept – that it crystallised her resolve to discontinue as a plaintiff in these proceedings, which is what she did on 1 April 2021.
Hannah’s evidence was that she became increasingly concerned about Wayne’s health through late 2020. She was also centrally concerned about Wayne being pressured by Abe into ‘making decisions about the [farm] that were not in his best interest’. There is no doubt that Hannah held these concerns from late 2020 after she was informed about the proposed transfer of the farms to Abe.
On 21 April 2021, Hannah made an application for the appointment of a guardian and financial manager in the Guardianship Division at NCAT. Abe became a party to those proceedings. I note that, at this time, Abe held Wayne’s power of attorney and had been appointed his guardian.
On 19 October 2021, NCAT made orders dismissing the application for the appointment of a guardian but appointing the NSW Trustee and Guardian as Wayne’s financial manager. However, by the time these orders were made, the transfer of the properties to Abe had already occurred.
Hannah re-joined these proceedings by Amended Statement of Claim filed on 6 April 2022, several months after Wayne had died. She says that the reason for this was that the primary consideration behind her discontinuance (being Wayne’s health and welfare) no longer applied. I accept that evidence.
“[36] In Waltons Stores (Interstate) Ltd v Maher, Brennan J set out six requirements for an equitable estoppel which… were formulated at a level of generality sufficient to include an equitable estoppel which arises by reason of encouragement by the making of a promise as well as an equitable estoppel which arises by reason of acquiescence. When the focus is only upon an equitable estoppel which arises by reason of encouragement from a promise, the elements that must be satisfied can be refined as follows.
[37] First, as with the requirement for representations in estoppels by representation generally, there must be a ‘clear and unequivocal’ promise made by the party estopped (the promisor) to the party who relies upon the promise (the promisee). Of its nature, the clear and unequivocal promise will generally concern some representation about future conduct.
[38] Secondly, a reasonable person in the promisor’s position must have expected or intended (or the promisor actually did expect or intend) that the promisee would rely upon the promise by some action, omission or course of conduct. This is what is meant by references, including throughout this appeal, to the promise being an ‘encouragement’ for the promisee to act.
[39] Thirdly, the promisee must have relied upon the promise by acting or omitting to act in the general manner that would have been expected. In order to establish reliance, it is ordinarily necessary for the promisee to show not merely that the promise was one factor taken into account in motivating the promisee’s action or omission but that the promisee would not have acted or omitted to act in the absence of the promise. In other words, it must usually be shown that the promisee’s reliance ‘made a difference to [the promisee] taking the course of action or inaction’.
[40] Fourthly, the consequence of the promisee’s reliance must be that the promisee will suffer detriment if the promise is not fulfilled, in the sense that the promisee will be left in a worse position, as a consequence of reliance upon the promise, than if the promise had not been made. Unlike the recognition of a gift, or the enforcement of a testamentary promise under a valid will, or the enforcement of a contractual promise, it is the existence of detriment arising from reasonable reliance upon an unfulfilled promise that completes the recognition of the estoppel and moulds the remedial response. As this Court has repeatedly held, ‘[i]t 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’. Hence, the relief is ‘moulded accordingly to prevent th[e] detriment’. In cases where the detriment suffered by a plaintiff is ‘a relatively small, readily quantifiable monetary outlay on the faith of the [defendant’s] assurances’ then, apart from interest, the likely equitable relief ordered will be compensation in the amount of the monetary outlay. By contrast, where the detriment suffered ‘involves life-changing decisions with irreversible consequences of a profoundly personal nature’, the likely equitable relief will be to require fulfilment of the assumption upon which the plaintiff acted, such as by a conveyance of rights, or an assessment of the monetary value of the assumption.” (footnotes omitted)
“…founded in an assumption as to the future acquisition of ownership of property which has been induced by a representation or promise upon which there has been detrimental reliance by the plaintiff.”
“Whether any, and if so what, representation has been made is to be judged ‘objectively according to the impact that whatever is said [or done] may be expected to have on a reasonable representee in the position and with the known characteristics of the actual representee’ per Mance LJ in MCI [2004] 2 All ER (Comm) 833 at 844.”
It follows that the question of whether a representor made a ‘clear and unequivocal promise’ (Kramer v Stone at [37]) sufficient to found a proprietary estoppel by encouragement cannot necessarily be answered merely by reference to the words used by a promisor. It will very often be necessary to determine whether it was reasonable for the plaintiff to interpret the words used in the way they claim to have understood and relied on them.
So far as the question of detrimental reliance is concerned, a plaintiff must usually establish that he or she would have acted differently in the absence of the relevant encouragement or if he or she had been told that the promise would not be kept: Q v E Co at [88]-[89] (Meagher JA). The conduct of the representor need not necessarily be the sole inducement operating on the mind of the promisee: Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 at [71]; Kramer v Stone at [39]. However, it is not sufficient to show that the promisee believed the promise and that he or she took it into account as one factor to motivate a certain course of action or inaction.
As Abe submitted, it follows from what was said by Meagher JA in Q v E Co at [88] and [89] that the particular concern here is to identify what the plaintiffs would have done if the promises had not been made or if the plaintiffs had known that Wayne did not intend to keep them. The issue is whether their conduct was influenced by the representations in such a way as to make it unconscionable for Wayne to insist on his legal rights concerning the farm: Trentelman v Owners – Strata Plan No 76700 (2021) 106 NSWLR 227; [2021] NSWCA 242 at [156] (Bathurst CJ, with whom Bell P and Leeming JA agreed).
Lastly, it is relevant to have regard to what has been said about the ability of statements of testamentary intention to give rise to an estoppel. The plaintiffs referred me to the remarks of Brooking JA in Flinn v Flinn [1999] 3 VR 712; [1999] VSCA 109 at [75]:
“Most people, I suppose, know that the maker of a will can revoke it at any time before death. How is a promise to leave property by will to be understood? Surely it will ordinarily be regarded by the promisee as a promise, not merely to make a will which can be revoked at any time before death, but to make a gift by means of an instrument which will take effect upon the donor’s death. In other words, the promise of a gift by will is ordinarily to be understood as meaning just that – an effective gift by will, taking effect on death, not an ineffective, because revoked, disposition. Of course it all depends on the circumstances. If a woman says to her niece, ‘It’s time I made a new will. I’ll see the solicitor soon. I’m going to leave you my house. But don’t forget that I might change my mind again and leave it to your brother next year’, any claim to an equity by proprietary estoppel would very likely break down at the start. This would be on the basis there had never been a promise to leave property by will, only an intimation of intention to make a will coupled with a disclaimer of an intention not to revoke it.”
The ‘intention not to revoke’ referred to in this passage ‘may be shown by circumstances short of an explicit statement that the promise is irrevocable’: Barnes v Alderton [2008] NSWSC 107; (2008) 13 BPR 25,281 (Young CJ in Eq) at [58]. The relevant question was expressed by Ward CJ in Eq in Bassett v Cameron [2021] NSWSC 207 at [415], citing Barnes v Alderton, to be: ‘not whether the person incurring the detriment understood that testators may change their wills, it is whether it was reasonable for the person incurring detriment to understand the particular encouragements or inducements in the circumstances to be an irrevocable promise’. I note that an appeal was allowed from Bassett v Cameron, but her Honour’s decision in relation to the proprietary estoppel claim was not disturbed: see Bassett v Bassett [2021] NSWCA 320 at [20].
In the same passage, Ward CJ in Eq also cited Robert Walker LJ (Waller and Beldam LJJ agreeing) in Gillett v Holt [2001] Ch 210 at 228 for the proposition that: ‘reliance on representations of a testamentary disposition may be reasonable in circumstances where assurances to this effect are repeated over a long period’.
The plaintiffs’ case depends to a significant degree on their recollections of things said to them many years ago, mostly during their childhoods and early adulthood, none of which is corroborated by any contemporaneous written record. It is appropriate to exercise a degree of caution in assessing evidence of that kind. I specifically bear in mind what McClelland CJ in Eq said about the fallibility of human memory in Watson v Foxman (1995) 49 NSWLR 315 at 319.
Further, I bear in mind what Brereton J said in Ashton v Pratt (No 2) [2012] NSWSC 3 at [18] about the need for caution in the case of a claim founded on the utterances of the deceased, which only the deceased could have denied.
The defendants submitted that, in these circumstances, the Court should ‘place reliance almost entirely upon documentary evidence’ rather than the evidence of James and Hannah. The documentary evidence to which the defendants referred consists of the various wills made by Wayne and Jo and the letters sent by James in 2012, 2013 and 2020.
I accept that I should have regard to those documents in assessing the plaintiffs’ evidence, but I am not prepared to proceed quite on the basis suggested by the defendants. It is necessary to weigh James and Hannah’s evidence in the light of the cautions already expressed and in the light of all the evidence and the overall logic of events. This means that I will take the wills and James’s correspondence into account in determining whether the representations were made and I will, as Brereton J suggested, look to see whether they tend to corroborate the witnesses’ accounts. But I will not rely on them to the general exclusion of what the witnesses have to say.
The first step is to determine what Wayne said to each of Hannah and James.
Hannah and James were cross-examined about the state of their recollection. It was suggested to them (and submitted to me) that their recollections had been affected by the passage of time and that their evidence was, at least in part, a reconstruction of events and conversations.
Senior counsel for Abe submitted that it defied belief that Hannah and James should be able to recall all the matters to which they deposed. The conversations with Wayne on which they rely occurred during their childhood, adolescence and, at the latest, their early adulthood. He submitted that it was inherently unlikely that they would be able to recall these conversations at the level of detail set out in their affidavits.
Although I am cautious about placing too much weight on my own perceptions of the witnesses in a matter which turns on their evidence about things said to them so long ago, it is relevant to note that both James and Hannah were good witnesses who appeared to do their very best in the witness box to answer questions. Hannah was slightly more dogged in maintaining that her recollection was accurate, but I do not criticise her for this.
Be that as it may, it is necessary to consider other matters, including the inherent logic of events, in determining what Wayne said to each of James and Hannah. In this respect, I note the following matters.
First, contrary to Abe’s submission, I do not consider that the matters which Hannah and James claim to recall are expressed at a level of detail that is impossible to credit to memory alone. On the contrary, their evidence is generally somewhat abbreviated, in the sense that they can recall specific, limited things being said but they cannot recall the whole of the conversation or the setting in which it occurred. For example, James recalls that either Wayne or Jo said on several occasions:
“You have to have a qualification you can fall back on before you come back to the farm, in case the farm does not work out.”
In fairness to James, he has not sought to embellish this recollection with other details. It is apparent from his cross-examination that if he could have recalled other details, he would have included them. But he cannot.
To like effect is Hannah’s recollection of a conversation she had with Wayne when she was about 16 in the context of learning how to slaughter a sheep. She recalls him saying:
“The boys can’t do this stuff you know. You will be good at doing these things on the farm when you are older. Bloss, there are things I get you to help me with especially where blood and guts are involved because the boys can’t. They just vomit. You have a place here on the farm.”
Hannah and James do also recall more detailed conversations, however these all seem to have been when they were slightly older and on occasions which were distinct and memorable. For example, Hannah recounts more detailed conversations she had with Wayne on the occasion of choosing subjects for school, or on the occasion of attending a particular barbecue, and on the occasion of discussing Wayne’s Parkinson’s disease and what might happen when he dies.
Much of what the plaintiffs recall is to the effect that Wayne said that the farm would always ‘be there’ for them, and about their parents having an expectation that they will get qualifications. Their recollections about the ‘equal share’ representation are similarly quite general. I do not think it is inherently unlikely that persons in the plaintiffs’ position would remember statements such as these. Furthermore, their recollections are in some respects very similar to Abe’s own recollections from a similar age. For example, Abe recalls his father saying to all three children ‘on the rare occasion’ that ‘you will all be looked after’.
Finally, neither plaintiff can be accused of having embellished their recollection in a way that was tailored to suit their case. That is because the key conversations which they recall are expressed in a very general way and do not easily lend themselves to being characterised as irrevocable promises concerning ownership of land. In fact, as I will next explain, I do not consider that the plaintiffs’ evidence even taken at its very highest supports a conclusion that the pleaded representations were made or that it was reasonable of the plaintiffs to treat such statements as giving rise to such representations.
In my view, Wayne did say the things to Hannah and James that they recall.
Although Hannah was a thoughtful and attentive witness and although I have no reason to generally doubt the reliability of her evidence, her evidence, taken at its highest, supports a conclusion that her father said things to her in a fairly general way about what his will might provide and about the farm generally ‘being there’ for her, but it does not support a conclusion that Wayne made clear, irrevocable promises to her about her title to property to found an estoppel. In my view, it was not reasonable for a person in Hannah’s position to understand anything said by Wayne as being an irrevocable promise of inheritance.
My reasons for reaching this conclusion are as follows.
First, the words which Hannah attributes to Wayne in her affidavits are in their natural and ordinary meaning difficult to construe as irrevocable promises about title to property. For example, she recalls that Wayne said to her during her childhood:
“If you don’t get a qualification, you can’t come back to the farm. It is as simple as that.”
“I expect all my kids to leave and get a qualification before they come back and work the farm.”
“Hannah: You really like having things in order before the Bank Manager comes don’t you?
Wayne: Yep. That’s one person you want to keep onside.
Hannah: Do you have other things in order too?
Wayne: What do you mean?
Hannah: Like arrangements for when your Parkinson’s gets really bad and for when you are not around?
Wayne: Your mum will take care of that for me. We also have wills in place that we made after you kids were born. You will each get the same.”
Before moving to university in February 2004, she recalls the discussion set out at paragraph [82] above. Hannah’s evidence was that she took comfort from this conversation that there would ‘always be a place for [her] to return to the [farm]’. She also sets out a discussion with Wayne when she was about 20 years old, to which I have referred at paragraph [84].
In none of these statements was there an unequivocal promise that Wayne intended to leave one third of his property to Hannah, come what may, provided only that she meets the ‘qualification expectation’. Wayne’s statements were general statements of his testamentary intention. They were made when Hannah was a child or very young adult. To the extent they expressed an expectation about how Hannah should behave (moving off the farm, getting a degree and so on) they were just that: expressions of a parent’s expectations. They were not promises about an interest in land.
Secondly, Wayne’s expectation about Hannah obtaining a qualification never seems to have been tied to his statements about inheritance. This is equally true of similar kinds of expectations expressed to James. I accept that an expression of expectation that conditions a promise about the future ownership of land may, in appropriate circumstances, reasonably be understood as an encouragement which when acted upon to a person’s detriment may found an estoppel concerning ownership. A parent might say that they ‘expect’ their child to work hard on the farm for low wages in return for inheriting it one day. But the expectations on which Hannah and James purport to have relied were never expressed in that way. Hannah accepted in cross-examination that Wayne never said to her that if she did not meet the ‘qualification expectation’ then she would be disinherited. The expectations expressed by Wayne were not tied to ownership of the land or to inheritance.
At the very best for Hannah, the statements on which her case in proprietary estoppel depends were equivocal on the key question of whether Wayne was making binding promises about ownership or whether he was making general statements about his testamentary intentions.
Thirdly, the representations and expectations on which the plaintiffs rely were never expressed in the context of Wayne positively encouraging either of them to stay on or return to the farm. In all of the evidence as to when and how Wayne made the representations and expressed the expectations, there is no suggestion that he was actually encouraging his children to give up their careers in order to try their hand at farming. The evidence is only that he told them what he intended to do with the land in his will and how he expected his children to go off and get qualifications. To the extent he was encouraging them to do anything, it was to leave the farm to do other things. This matter, on its own, is not decisive. But it does bear on the question of whether a reasonable person would have understood that Wayne was making binding commitments or expressing serious encouragement.
“Wayne: We are going to buy Tommy’ McGrath’s farm
Hannah: Why on Earth would you want to do that?! Dad, your health isn’t great and it’s only going to get worse. We have just come out of one of the worst droughts in history. The farm already has so much debt which will take years and years to pay off, if at all. Why add to it? Isn’t that enough to deal with?
Wayne: Yes but how about you think of instead as our superannuation for the future instead of another block of dirt?
Hannah: This is mad. Have you really worked this through?”
One gains the distinct impression from this paragraph that Hannah’s objection to the purchase of Currawong was that it was financial madness.
In the version of events presented in these proceedings, she said that the following conversation occurred:
“Jo: We are going to buy Tommy McGrath’s farm, ‘Currawong’.
Hannah: Why on Earth would you want to do that?! Dad, your health isn’t great and it’s only going to get worse. We have just come out of one of the worst droughts in history. The farm already has so much debt which will take years and years to pay off, if at all. Why add to it? Isn’t that enough to deal with?
Wayne: Yes, but how about you think of it instead as our superannuation for the future instead of another block of dirt?
Hannah: This is mad. Have you really worked this through?
Wayne: Yes, we have. If you all want to come back to the farm, as we have said to you, then we are going to need more land”. (emphasis added)
“Although I did not know how much debt the farm was in at the time, I knew that Dad had recently acquired Arizona and Ivanhoe in 2008 and the farm was already carrying a significant amount of debt. I was concerned that the farm would be unable to service the additional debt incurred to buy Currawong and that this might mean that Dad had to sell all or part of the [farm] to meet those debt obligations. I was also concerned because Wayne’s health was deteriorating and I was worried about the effect that buying an additional property might have on his health, as it would likely increase his stress and workload.
Following this conversation, I understood that Currawong was being purchased as part of Wayne’s intended plan to leave a sufficient share of the [farm] to each of me and my siblings so that we could each make our livelihoods on the land.”
One gains the distinct impression from this evidence that although Hannah at first believed it to be an improvident purchase, Wayne in fact acquired Currawong as part of his long-standing and reasonable plan to leave property to her and her siblings, precisely as he had promised.
Hannah explained the differences between her evidence in NCAT and her evidence in these proceedings as reflecting the different issues with which the NCAT proceeding was concerned. She is correct that the issues in that proceeding were very different to the issues in this proceeding. However, it remains the case that she described the same event in ways that were different in important ways across the two proceedings. In one account, she mentioned the promises that are fundamental to her case here. In the other account, she did not, even though it would have made perfect sense for her to have done so even in the context of the different issue being decided by NCAT.
A further, similar discrepancy may be seen in the way Hannah described her reaction to being told by Ms Ryan in December 2020 that Wayne intended to transfer the farm to Abe, as to which see paragraphs [223]-[224]. Paragraph [122] of her affidavit before NCAT was as follows:
“I was totally taken aback because dad’s care and costs were going to be funded by a loan. In my thinking, the only way that this approach made sense was if Abraham was receiving the farm for nominal or limited consideration by way of an intergenerational transfer. This would also be exempt from duties.”
“I was utterly shocked when Wayne told me this, as it was very different to what I had always understood would happen, which was that the [farm] would be left to me and my siblings in equal shares. I could not believe what I heard, but I tried to hide my feelings as I was concerned that if I confronted Wayne during the meeting in front [of] Ms Ryan, he might lose his temper with me and create a scene.”
There is a sharp contrast between these two accounts. In one, she is thunderstruck by the departure from a solemn promise. In another, she does not mention the promise.
I do not believe that any part of Hannah’s evidence is recent invention, as the defendants submitted it was. But on the question of whether she actually understood Wayne’s words as binding promises or as general statements of his testamentary intentions, her own evidence across the two fora suggests that she has not consistently been of one view or the other. In other words, I attribute these discrepancies in her evidence to her own equivocation as to whether Wayne really did make binding, irrevocable promises to her about inheriting the land.
Fifthly, I am not willing to place any significant weight on Jo’s evidence as to whether Wayne made binding promises to Hannah and James about their inheritance. Like Hannah, Jo gave evidence in the NCAT proceedings but did not mention any promises about Hannah or James inheriting land. Her evidence in those proceedings contained an absolutely excoriating description of Abe, including as a young child. She described his unsuitability to be in a position of care for Wayne in terms that were deeply personal and antagonistic. So scathing was her attack on his character that it is impossible to accept her as an impartial historian of the relationship between Wayne and any of his children.
I also note the evidence about a letter written by Jo in the year 2000, which happened to be unearthed from a time capsule on the celebration of the sesqui-centenary of Barmedman. This letter referred only to James and Abe becoming the next generation of Bushell farmers in the region. She did not mention the possibility of Hannah becoming a farmer, which is inconsistent with her evidence that Wayne had always promised a three-way division of the land. According to her evidence in these proceedings, by 2000 the children had been promised a three-way split of the land. The letter does not bear this out. Nor did Jo ever mention any promises about the land in the context of her divorce and property settlement, when it would have been obvious to do so. If, as she suggested, she transferred Currawong to Wayne in the expectation that he was duty-bound to leave all of his property to the three children equally, it is difficult to see why she would not have said so at the time.
In my view, even though I can accept that Wayne said the things which Hannah recalls him saying, I cannot accept that a reasonable person in Hannah’s position would have understood his words as being binding promises from which he was not entitled to depart, regardless of how things might turn out for either of them.
The fact that Wayne expressed expectations about James and Hannah obtaining qualifications, which he undoubtedly did, points strongly to a conclusion that Wayne intended his children to leave the farm and to obtain qualifications that would allow them to live independently of the farm. His specific concern was that they should obtain qualifications in a field other than farming that could support them. He no doubt hoped that they would heed his advice (as they did) but he cannot possibly have intended that they would act to their detriment by giving up those careers to return to the farm even if the farm could not support them. It was precisely because he feared the farm would not be able to support them that he encouraged them to get qualifications in the first place.
As to Wayne’s statements about equal treatment or a three-way split of the land, the evidence does not support a conclusion that Wayne ever believed he had made a binding promise to this effect or that he intended the plaintiffs to rely on those statements, least of all to their detriment. None of his many wills ever divided the estate in accordance with such a promise. The closest were the 1989 wills, but these pre-date any alleged promises and, even then, first left the whole estate to Jo. From the time any promises were made or expectations expressed, Wayne’s numerous wills all diverged very significantly from any notion of equality. Clearly, Wayne never considered that anything he had said to his children bound him to leave his estate equally among them.
Many other things done by Wayne over the years are inconsistent with a finding that he intended Hannah and James to shape their futures around an eventual three-way split of the land. He offered to transfer all of the land to James in the late 2000s (see paragraph [113]); he seriously entertained transferring land to Abe in 2013 (see paragraph [138]); and he entered into the Deed of Annuity (see paragraph [192]) in 2015 by which he agreed to transfer all his land to Abe. This may just be more evidence of Wayne’s willingness to depart from promises, but the consistency with which he conducted his affairs over such a long period of time (that is, the consistency with which he acted as if he had made no promises) tends to suggest that he honestly did not consider that he had made the sort of promises alleged. I note that when the issue was specifically raised in the course of the caveat dispute, Wayne firmly expressed the view to his solicitor that the notion of having made promises was ‘nonsense’.
Nor does the evidence support a conclusion that a reasonable person in Wayne’s position would have considered they had made a binding promise. Such a person would in my view have considered statements such as these as being statements of present testamentary intention that did not give rise to an estoppel. Although the plaintiffs say that Wayne’s assurances were ‘repeated over a long period’ and therefore reasonable to rely on as representations ( at [20]), there was never any evidence of Wayne having made an ‘explicit statement that the promise is irrevocable’ ( at [58]). No doubt they were said by way of reassurance, but the reassurance was offered in the context of Hannah and James leaving the farm to do other things, not in the context of them being encouraged to stay on the farm, nor in the context of them being encouraged to return to it.
The key decisions which Hannah made while still at school and at university, such as choosing subjects for the HSC and choosing a degree, were matters that cannot sensibly be said to have been done in reliance on a promise about what would happen when her father died. The evidence shows that her choices about HSC subjects and about her degree were made in much the same way most children of that age make such choices. She had many discussions with her father and others about what to study and what degree to choose. Wayne made numerous suggestions to her about what to study for the HSC, including modern history and legal studies. He was not opposed to her studying medicine at university. He did not threaten to disinherit her if she studied medicine. Her evidence rises no higher than that she felt ‘assured’ in making her choices that the ‘farm would always be there for her’. There is no suggestion that she was at all worried about – or even cognisant of – her inheritance at the time of making these decisions as a 16, 17 and 18 year-old.
Undoubtedly, Hannah was influenced by what her parents said. But the evidence does not allow me to conclude that she decided what to study based on what she believed she needed to do to protect her rights on her father’s death.
The evidence does not establish that Wayne’s promises were a contributing cause of the other decisions upon which Hannah relies on to establish detriment. Hannah’s decision to resign from Clayton Utz in February 2012 (see paragraphs [128]-[129] above) was made in circumstances where she had spoken to her father and had received nothing but an indication that he was ‘not opposed’ to her returning to the farm. She made the decision with no plan to move to the farm to live and with no firm understanding of what work she might do on the farm. Her father certainly did not encourage her to return. In fact, she moved to Narrandera with her long-term boyfriend, with whom she had moved to Laos in the first place. I do not think it can be said that the move from Laos to Australia was in reliance on Wayne’s promises. I do accept that Hannah hoped to be able to work on the farm. However, I am unable to accept that the prospect of inheriting one third of the farmland was a contributing cause of her decision to return when she did in that she ‘would not have acted or omitted to act in the absence of’ that alleged promise. At most, it was one matter amongst others that she took into account in deciding when to return to Australia and, in the absence of it, was unlikely to make a difference to her decision: Kramer v Stone at [39].
When she did finally have a frank conversation with her father about working on the farm, he made quite clear that the farm could not support her: see paragraph [131]. This should have made it clear to Hannah that it was not safe to assume that what Wayne had said either about the ‘farm always being there for her’ or about his expectation that she would be able to return to the farm if she got a qualification was a binding promise. Clearly enough, Wayne did not think these past statements bound him to act in any particular way.
So far as the question of detriment is concerned, it is very difficult to conclude that Hannah is in a worse position in life compared to where she would be if she had known that Wayne might not keep his promises. She has two degrees from a very good university, including a law degree. She was admitted to practice as a lawyer and has experience working in one of the country’s largest law firms, where she excelled. She has been able to find work ever since leaving that firm, although mostly not in law. She currently has very good, highly remunerative employment. She has had opportunities for overseas travel, including substantive roles in volunteer organisations, which she has been in a position to take advantage of, not once but twice. She owns a home with a mortgage that she and her husband are managing to service. She has a legacy of $600,000 from her father’s estate which she accepts she would not have if the promises had been kept. She and her brother will each inherit half of the residue of their mother’s estate, to the exclusion of Abe. Their mother, it is to be remembered, received half the 2014 value of the farms in her property settlement with Wayne.
Hannah’s case on this issue is heavily dependent on the proposition that she would have been financially far better off by choosing medicine to begin with or, having chosen law, by staying at a big city law firm.
So far as concerns the option of studying medicine instead of law, there was no evidence that this was an available option for her at the time. I do not know whether she had the HSC results to study medicine and, if so, where she would have been prepared to go to study it. I note that she has been unsuccessful in obtaining enrolment in a graduate medicine course in later years.
So far as concerns the decision to leave Clayton Utz and then the decision to leave the ATA, there is no firm basis to conclude that Hannah would have taken a markedly more financially successful path in life than the one she has. She has been offered and taken significant opportunities. She has also passed opportunities up or put them on hold in order to pursue significant volunteer roles. She has pursued work in areas outside the law. I accept that it is quite possible that if she had decided to stay at Clayton Utz then she may have become a successful partner with a busy practice. So too might she have decided to take extended sabbaticals to Laos and Ethiopia and to move to Albury with Jarrod in any event. The ‘what if’ scenario is too uncertain for me to be able to conclude with confidence that she is actually worse off than if she had known that Wayne would not keep his promises.
It follows from this that even if I am wrong in my other conclusions, I would not conclude that Hannah’s reliance on the representations and expectations has been to her detriment.
My conclusions in relation to James’s proprietary estoppel claim are largely the same as my conclusions in relation to Hannah’s claim. That is, I am unable to conclude that Wayne made sufficiently clear and unambiguous promises to James; nor that Wayne actually intended for James to rely on them (nor that a reasonable person in Wayne’s position would have expected that James would rely on them); nor that James actually did rely on Wayne’s promises to his detriment. My particular reasons for reaching these conclusions are as follows.
The statements which Wayne made to James were somewhat less vague than the statements made to Hannah. For example, he said that ‘part of this land will be yours’.
On the other hand, as with Hannah, the language used does not easily lend itself to being understood as binding promises about what would happen when Wayne died, come what may. His comments may all equally be understood as statements of his testamentary intention which any reasonable person would understand are capable of change.
In my view, the statements made by Wayne were not clear and unambiguous promises, nor would a reasonable person in James’s position have understood them as such at the time they were made. There were numerous occasions prior to this litigation on which it would have been obvious for James to remind his father of a binding promise he had made but where he did not do so. One explanation for this is that it is only more recently that he has come to see such statements as binding promises. For example, in all his correspondence with his parents in the context of their proposal to transfer land to Abe during 2013, he never once reminded them that they had already promised one third of the property to him. This is despite the fact that he arced up quite significantly at their proposal and despite the fact that he and Hannah were prepared to go to the guardianship tribunal to challenge his capacity if he went ahead with the proposal.
James’s correspondence during 2013 shows that he had strong views about the question of succession. However, it also shows that he considered that the ‘current third/third/third plan’ was something that had only been ‘broadly agreed to’. Importantly, he made the following statements in that correspondence:
‘To date there had been no proper succession plan discussed with the family apart from the equitable third/third/third policy’.
‘Until a plan has been agreed I think that it could be dangerous to involve Rabo…. This plan does not include all viewpoints…’.
‘More options need to be investigated that have more agreement in the family, the adoption of this model without sufficient research will cause more issues than it solves’.
‘The general rule we have always been aware of was third:third:third. Any change from this now seems to be unfair and unfavourable to the two non farming children’.
As with Hannah, I find that Wayne did not expect or intend that James would detrimentally rely on his representations and expectations. Nor would a reasonable person in Wayne’s position have expected that James would detrimentally rely upon them. I reach the same conclusions on this issue as I reached in the context of Hannah’s claim at paragraphs [319]-[322] above.
In the case of James, it is particularly clear that Wayne never believed he had made an irrevocable promise about a three-way split of the land. Wayne in fact offered to transfer all of the properties to James in 2008 or 2009, which James declined. The 2013 correspondence on the topic of succession also tends to support the conclusion that anything said by Wayne about that topic in earlier years had been in the nature of general statements of testamentary intention, not binding promises intended to encourage a course of action or inaction by James.
Although James, like Hannah, pleads that he made numerous decisions in reliance on his father’s promises, his submissions particularly focused on his decision to take a year-long sabbatical from KPMG Chile, starting in 2014. I have described this decision at paragraphs [166]-[168] above. However, the course of correspondence and meetings during the previous year about his parents’ proposal to transfer land to Abe and about succession generally make it impossible to accept that he took this sabbatical in reliance on promises made during his childhood and early adulthood about inheritance. When asked about this issue in cross-examination, James said that when he returned to Australia he was not at all worried that his parents were not going to abide by their promises to him. In other words, he claims that he returned to Australia with full confidence that a third of the farm would be his, come what may.
I cannot accept that this was so. I can accept that he returned to the farm in the hope and expectation that he might be able to make a life for himself as a farmer. But his experience the previous year cannot have left him in any doubt whatsoever that the question of inheritance was one that was still up in the air. He knew by this point that the question of inheritance was a complicated one and that apart from anything else it would depend on the terms of his parent’s property settlement.
Like Hannah, James was pressed in cross-examination about what he would have done if he had known that Wayne might not keep his promises to him. These questions were directed to all of the decisions which, in his pleading, James claimed were made in reliance on Wayne’s promises and encouragement. Save for saying that he believed he would have stayed longer in Chile, James’s evidence was that he did not know what else he would have done.
James’s present circumstances are generally very good. He has extremely good professional and academic qualifications. He has gained excellent domestic and international experience in a difficult, competitive and highly regarded profession. He has excellent, stable employment in the Commonwealth public service. He has savings and an investment property. He has a $600,000 legacy from his father. He stands to inherit half of his mother’s estate. He lives with his partner, from whom he is relatively economically independent. They own their home and comfortably service their debt.
James’s case is that if he had stayed in Chile in 2014 and pursued partnership with KPMG, he would now be in a far better position than he is now. But as to what his life would now look like if he had made that decision, there is little to no evidence. I do not think it is safe to proceed on the assumption that he would necessarily have become and would thereafter have remained a partner at KPMG, either in Chile or Australia. At most, there is a chance that he would be in that position. Such evidence as there is about his general ambition to become a partner at KPMG is equivocal. In his first affidavit, he maintained that he had ‘never intended’ and was ‘never interested’ in pursuing partnership with KPMG.
The evidence also shows that James did not actually pursue partnership after returning to KPMG Australia in 2015. He left after about 12 months to do something altogether different, namely study for a PhD.
I accept James’s evidence that he felt that partnership opportunities had somewhat passed him by after returning from his sabbatical, which included about nine months at the farm. However, he had taken that sabbatical knowing that farming might not work out for him. The very reason he did not resign in 2014 when he returned to the farm was that he knew it might not work out and that he may need to return to KPMG, which is what happened. It is relevant to note that his plan to use his sabbatical to reestablish himself on the farm failed for reasons that had nothing at all to do with his father’s failure to keep his promises.
Furthermore, although I can accept that he felt that partnership opportunities had passed him by, there was no evidence that he was justified in feeling that way. He called no evidence about his attempts to pursue further promotion with KPMG or about the prospects of becoming a partner.
I am therefore unable to accept that James has suffered material detriment by relying on the equal share representation and the qualification expectation. Nor did he suffer any detriment in relying on the so-called ‘further representations’, which included the representation that he might receive more than one third of the farms. The evidence of this representation was the offer made in the late 2000s, which James rejected: see paragraphs [113]-[118]. He did not rely on it.
In case I am wrong about the proprietary estoppel claims, it is appropriate to deal with the question of whether Abe has nonetheless obtained indefeasible title in the farm properties despite being on notice of the plaintiffs’ claims.
The effect of ss 42, 43 and 118 of the Real Property Act is that Abe acquired indefeasible title to the farm from Wayne notwithstanding any ‘notice direct or constructive of any … unregistered interest’ in the land, including any claims against Wayne in respect of the land.
To overcome the effect of these provisions, the plaintiffs allege that the in personam exception to indefeasibility applies. They rely on clauses 7.1 and 7.2 of the Loan Agreement Variation in which Abe acknowledged their claims and undertook to abide by the determination of the Court. Those clauses were as follows:
“7.1 Abe must pay all costs and liabilities associated with the Claim including
(a) legal costs; and
(b) any amount agreed between the parties in settlement of the Claim;
(c) any amount ordered to be paid by the Supreme Court in respect of the Claim;
and indemnifies Wayne against all liabilities in relation to the Claim.
7.2 Abe acknowledges the Claim and agrees to settle the purchase of the Land with notice of the Claim.”
“…in no way denies the right of a plaintiff to bring against a registered proprietor a claim in personam, founded in law or in equity, for such relief as a court acting in personam may grant.”
See also Bahr v Nicolay (No 2) (1988) 164 CLR 604; [1988] HCA 16 at 613 (Mason CJ and Dawson J), 637-638 (Wilson and Toohey JJ) and 653-656 (Brennan J).
However, it is not enough to establish an in personam exception to prove that the registered proprietor had mere notice of an unregistered interest or claim: Mapa Pearls Pty Ltd v Haliotis Fisheries Pty Ltd (2023) 71 VR 581; [2023] VSCA 108 at [64]. The terms of s 43 of the Real Property Act make this clear. Rather, there must be an ‘additional ingredient’ to the notice, being some form of ‘acknowledgment of the unregistered interest, or an agreement or undertaking to act in accordance with it, from which the registered proprietor later resiles’: Heggies Bulkhaul v Global Minerals Australia (2003) 59 NSWLR 312; [2003] NSWSC 851 (‘Heggies’) at [103] (Austin J). An ‘acknowledgement’ in this context must refer not only to a recognition that a right exists, but an undertaking to respect that right: Presbyterian Church (NSW) Property Trust v Scots Church Development Ltd [2007] NSWSC 676; (2007) 64 ACSR 31 at [112] and [114] (Young CJ in Eq) approving of Heggies at [103]. As Young CJ in Eq said at [114]:
“One must be a little careful with this word ‘acknowledgment’. Acknowledgment in this type of case means more that the realisation that a right exists. It connotes the case where a person not only recognises that a right exists, but also undertakes to respect that right. However, it does not appear necessary that the undertaking need be known to the person whose right is in question at the time when it is made.”
Although the point is not an easy one, I would have held that clauses 7.1 and 7.2 of the Loan Variation amounted to an undertaking by Abe to respect or act in accordance with any right, estate or interest that James and Hannah might establish in the properties through these proceedings. Had it been necessary to do so (ie, had Hannah and James actually made out their estoppel cases), I would have found that the in personam exception was made out.
I note that in paragraph 2(m)(iv) of their Reply, the plaintiffs raise an allegation of ‘equitable fraud’ against Abe. The plaintiffs did not advance any submissions about this issue. In light of what I have otherwise said about the in personam exception, it is unnecessary to say anything about the allegation of equitable fraud.
(1) An action on a cause of action—
…
(c) to recover trust property, or property into which trust property can be traced, against a trustee or against any other person
…
is not maintainable by a trustee of the trust or by a beneficiary under the trust or by a person claiming through a beneficiary under the trust if brought after the expiration of the only or later to expire of such of the following limitation periods as are applicable---
(e) a limitation period of twelve years running from the date on which the plaintiff or a person through whom the plaintiff claims first discovers or may with reasonable diligence discover the facts giving rise to the cause of action and that the cause of action has accrued, and
(f) the limitation period for the cause of action fixed by or under any provision of this Act other than this section.
Section 11 states that the term ‘trust’ for the purposes of that Act includes implied and constructive trusts.
Section 27(2) provides, in relation to an action to recover land, the limitation period is twelve years from the date on which the cause of action first accrues to the plaintiff. Section 36(1) provides that the limitation period for an action to recover land applies in like manner to an action to enforce an equitable interest in land.
In dealing with the limitation defence in the alternative, it is necessary to engage in some conjecture as to the basis on which the plaintiffs would have succeeded on the proprietary estoppel claim had I not rejected it. Although there may have been a range of outcomes, I consider it appropriate to proceed on the basis that the plaintiffs would have succeeded on the basis of their primary case, which is that Wayne did not resile from any promises until the transactions of 2020 and 2021 (namely the transactions described at paragraphs [3]-[5] above).
On that basis, the Limitation Act defences could not succeed. It was only at that point that the cause of action accrued. Alternatively, it was only at that point that the plaintiffs discovered all of the facts entitling them to bring proceedings.
The defendants submitted that where a constructive trust arises by reason of a proprietary estoppel, the trust arises at the time the promisee relies to their detriment on the relevant promise or encouragement in such a way as to render it unconscionable for the promisor to resile from the promise or encouragement. Authority for this submission is to be found in Soulos v Pagones; Soulos v Soulos; Soulos v Soulos; Soulos v Pagones; Kristallis v Soulos; Kristallis v Soulos; Kristallis v Pagones [2023] NSWCA 243; (2023) 416 ALR 181 (‘Soulos v Pagones’) at [471] (Ward P); see also McNab v Graham (2017) 53 VR 311; [2017] VSCA 352 at [102] (Tate JA, Santamaria JA and Keogh AJA agreeing). The defendants say that in the present case, a constructive trust arose many years ago (on the plaintiffs’ case) when the plaintiffs first did things in reliance on Wayne’s promises.
That may be so. But the question arising under the Limitation Act is not when the constructive trust arose. It is, rather, when the cause of action accrued (s 27) or when the plaintiffs discovered facts necessary to demonstrate that it had accrued (s 47). That will not ordinarily occur in a case such as this, ie in a claim for proprietary estoppel, until the promisor resiles from the promise or, at the very least, the plaintiff has some cogent basis to contend that the promisor will do so. Both for the purpose of ss 27 and 47, that did not happen in the present case until well within the period of 12 years prior to the commencement of the proceedings.
Had it been necessary to deal with this defence, I would have found that it was not made out.
Finally, the defendants state that even if the estoppel claims are not statute-barred by the Limitation Act, the doctrines of laches or acquiescence based on delay operate to bar the plaintiffs’ entitlement to a remedy.
None of those defences have any application to the present circumstances. James and Hannah caused caveats to be lodged on the farm properties on 20 December 2020, only one week after Hannah first found out that Wayne was proposing to transfer the farm to Abe. This was over eight months before the transfer was in fact settled. This cannot be said to reveal any unreasonable delay in bringing their claim such as to enliven the doctrines of laches or acquiescence.
Had it been necessary to deal with these defences, I would have found that they were not made out.
James currently holds the position of Assistant Director in the Department of Infrastructure, Transport, Regional Development, Communications, Sports and the Arts. This is an EL1 role and is based in Canberra. James lives with his partner, Scott, in Watson, ACT.
James currently earns a gross annual income of $139,534, which comes to $8,442 after tax per month. His employer contributes $1,791 per month to his superannuation. James has been earning an additional $1,000 per month in connection with a fractional CFO position with a home loan originator. However, this arrangement was expected to come to an end by about September or October 2025.
In December 2024, James and Scott purchased a home in Watson as tenants in common in equal shares for the sum of $895,000. They are jointly liable for a mortgage on this property. The mortgage currently stands at about $685,000. Monthly repayments are about $4,059 per month. Total costs associated with ownership of the Watson property (including loan repayments, utilities, strata, insurance etc) come to $67,928 per year, of which James’s share is half, or $33,964. This equates to $2,830 per month.
James also still owns his apartment in Cammeray. This is the apartment which his father helped him to acquire in 2011. The property has a current estimated market value of about $1,200,000. The Cammeray property is rented out for $725 per week and is subject to a mortgage of about $350,000. Mortgage repayments are $2,378 per month. After taking into account rental income and all expenditure associated with ownership of the Cammeray property, this investment results in a cash outlay of about $200 per month.
As at 1 July 2025, James had superannuation of about $345,000. He had cash of $49,379 in an offset account associated with the mortgage on the Cammeray property. He had cash of $25,016 in an offset account associated with the mortgage on the Watson property. He owns a car worth about $10,000 and has various personal assets that are not of significant value.
In addition to the home loans on the Watson and Cammeray properties, James has other liabilities totalling about $30,000 in connection with the Watson property. These relate to the installation of solar panels and a strata loan. As at 1 July 2025, his credit card debt was $9,235 and he had a tax bill of $5,000.
James has to date only received $360,000 of his legacy from his father’s estate. He did not say how he has used these funds, however I was informed by senior counsel for the plaintiffs that he has contributed a fair amount of this to superannuation.
James estimates that he spends about $1,625 per month on food and groceries. He estimates other costs, such as car and other personal costs, of about $2,101 per month. He says he also has annual travel expenditure for multiple domestic trips and one international trip in the amount of $20,000 per year. He also expects to make additional concessional superannuation contributions of $5,000. His evidence does not specify whether this is a monthly or annual contribution.
In his September 2022 affidavit, James described his present financial needs as being $400,000 to discharge the mortgage on the Cammeray property.
He described his future needs as follows:
$300,000 for costs associated with having children through potential adoption, surrogacy or other means.
$2,000,000 for costs associated with raising children.
$50,000 for a new car.
In his updating evidence, James says that he still needs about $50,000 to buy a new car in the near future. He will need about $50,000 to contribute to some essential repairs to the Watson property. He anticipates needing to spend about $30,000 on the Cammeray property. That property is in a block of 27 units constructed in 1966. The whole block requires a new roof and windows.
Under the heading ‘The financial resources (including earning capacity) and financial needs, both present and future, of the plaintiff’, James states that he has always expected to own his own broadacre grain farming enterprise in the Barmedman/Temora district. He says that he would need at least 2000 acres for a farm to be viable. His evidence shows that farming land of that size in the Barmedman/Temora district would likely cost between about $7 million and $8 million, which reflects a price of between $3,500 and $4,000 per acre. Based on Rabobank’s basic lending criteria he estimates that he would need 60% equity to secure a loan for the remainder. This means that he would need between $4.2 million and $4.8 million of his own funding. He conservatively estimates that he would need an overdraft facility of $750,000 for initial acquisition costs, planting for the first few years, and additional costs of machinery that cannot be contracted. If he were to realise his equity in the Cammeray property for about $500,000, he estimates that he would still require additional funding of between $4.45 million and $5.05 million for the venture to begin.
James’s submissions proceeded on the same basis as his affidavit, namely that the acquisition of 2000 acres of land is a financial need within the meaning of s 60(2)(d) of the Succession Act. James primarily seeks a transfer of so much of the land comprising the farm as amounts to 800 arable acres. Alternatively, he seeks provision in cash of $7 million to $8 million to allow him to purchase equivalent land.
Hannah is the breadwinner in her household. She is currently employed by the Royal Australian Navy. Her annual gross salary exclusive of performance allowance is $159,229, which comes to $9,942.66 after tax per month. Her current position is based in Canberra and, as part of a flexible working agreement, she is required to travel at her own expense to Canberra for work at least once each fortnight. If she were to pursue promotion with the Navy, she and Jarrod would have to relocate to Canberra, where the cost of living is significantly higher than in Albury.
Hannah and Jarrod jointly own their home in Albury, which has a current value of about $870,000. Hannah has superannuation of about $258,500. She owns two cars. She and Jarrod have only nominal amounts of cash. They have modest savings for their daughter’s education. All up, the assets which Hannah owns either in her own name or jointly with Jarrod come to $1,254,402.
As of 1 July 2025, the total amount owing on their mortgage was $610,780. Hannah has various other liabilities also. She has had to replace both family cars over the past 24 months. She has credit card debt and another personal loan, as well as a tax debt. They have also borrowed money from Jarrod’s parents that they must repay. All up, Hannah’s liabilities come to $868,705.
Hannah has to date received only $360,000 of her $600,000 legacy. She has used almost all of these funds to meet various contingencies over the past few years. She has explained these contingencies in her affidavits and it is unnecessary to repeat them. She has certainly not wasted any money. To the contrary, she and Jarrod appear to manage their money responsibly.
Jarrod is employed by Charles Sturt University on a part time basis. He has a very narrow specialty in freshwater fisheries research. His employment is insecure, variable and limited in tenure. He has worked for several years on a contract basis in various fixed-term roles. His monthly take-home pay is $5,127. Jarrod’s only substantial asset other than his interest in the Albury home is his superannuation, which had a balance of $180,781.71 as of June 2023.
Hannah and Jarrod have two young children, a daughter who turned 9 and a son who turned 5 at around the time of the hearing. Despite a modest standard of living, Hannah and Jarrod have regular monthly household expenditure that about equals or slightly exceeds what they earn. It is inevitable that as their children grow older, the household budget will come under even greater strain.
In her September 2022 affidavit, Hannah described her needs broadly as follows.
‘Millions of dollars’ for raising children.
Funds to allow her to study medicine. The amount required was not specified, but she gave evidence that the course itself would cost $355,707 and that her working hours would be reduced to eight hours per week, and so she would require funds to meet the shortfall. As at late August 2022, however, her application to study medicine had not been successful.
Funds for doing roofing and other repairs to her Albury home, totalling $77,548.08. Also, funds to acquire a new car in the amount of $45,490.
There is no doubt that Hannah has had a lifelong wish to study medicine. As I have recounted above, she attributes her decision to study law to the fact that she was encouraged away from medicine by her father and that in making this decision she relied on his promises about her inheritance. Although I have rejected her evidence about her reliance on Wayne’s promises (as to which, see paragraphs [324]-[325]), I accept that she has a genuine wish to study medicine and that she would do so if she could.
However, she has thus far been unsuccessful in obtaining admission to a medical school program. She now accepts that this is an option that is no longer open, which is a source of regret for her.
In an updating affidavit sworn on 1 July 2025, Hannah states that she has always expected and wanted to pursue a life on the land. She states that in the event she is unsuccessful in her proprietary estoppel claim, she anticipates that she will require funds to purchase 200 to 400 acres of land near where she currently lives in order to run 100 to 200 head of Angus cattle. She estimates that she will need between $2.5 million and $4 million to purchase land. In closing submissions, it was submitted that she should receive further provision in the sum of about $4 million.
Abe owns the whole of the property acquired from Wayne. The parties agree that the properties had a combined market value of $23,560,000 as at 26 March 2024. There was no evidence about the value of his shares in Bridgefield Farming.
As at 25 June 2025, Abe’s assets apart from the farm and Bridgefield Farming included superannuation of about $57,000, cash of about $28,000 and some relatively insignificant personal items. Overall, these other assets come to about $98,000.
Bridgefield Farming owns the farming business, including the plant and equipment valued at approximately $4.9 million as at 20 May 2024. It has two Rabobank finance facilities secured by a first-ranking mortgage over Abe’s land and supported by personal guarantees given by Abe. Both are ‘All-in-One’ accounts with a combined facility limit of $5,940,000 as at 20 June 2025. As of that date, there was $339,169.39 available in one of the facilities. Bridgefield Farming also has equipment finance liabilities for an approximate amount of $4,355,859.
Bridgefield Farming also has other current liabilities, including over $1,000,000 for fertiliser, fuel and chemicals. It also has a tax debt of $45,077 in respect of which it has entered into a payment plan of $600 per week.
Altogether, as of 20 June 2025, Bridgefield Farming had total liabilities of about $11 million.
The 2024 cropping season was disastrous for Bridgefield Farming. There was a freezing event between 14 and 19 September 2024 which significantly damaged the wheat and canola crops. For the 2024 season, Abe had prepared a plan which budgeted a yield of $1,625 per hectare for canola and $1,330 for wheat. Due to the freezing event, the canola crop yielded only about $677 per hectare and the wheat crop yielded only about $815 per hectare. These figures are all exclusive of GST. In the result, the draft forecast accounts for the 2024 season show a loss of $2,553,543.
Abe has planted chickpea and wheat for the 2025 season. He forecasts net income of $1,110,618 for chickpea and $795,246 for wheat.
Abe’s only source of income is the farm. That income is derived by Bridgefield Farming, which pays him a wage. Abe’s salary for the year ending 30 June 2022 was $83,400, including superannuation. His salary for the years ending 30 June 2023 and 2024 was $88,920, including superannuation. He is required to pay $156.33 per week for child support to his former wife.
Until the middle of 2024, Abe was charging Bridgefield Farming rent of $410,000 per annum. However, in the light of his overall financial circumstances this arrangement has come to an end. Bridgefield Farming is unable to pay rent for the time being.
Abe has three children from his former marriage. His eldest son, Liam, left school after finishing Year 10 to help out on the farm. Liam lives with Abe on Bridgefield. Abe’s other two children currently attend high school.
Abe’s present and future financial needs are straightforward. He wishes to be able to continue to farm the whole of the farm, as he has done. His principal concern in relation to the plaintiffs’ Succession Act claims is that any order for further provision is likely to jeopardise the viability of the farming operation, which is his only source of income. He believes that the farm would be unworkable if it is required to pay further provision to Hannah and James in anywhere near the amounts they are claiming.
It is important to keep in mind that both in their proprietary estoppel case and also in their Succession Act claims, Hannah and James do not seek a result whereby they would receive some land, but with a corresponding assumption of debt. They do not wish to share in any of the liabilities associated with the farming operations incurred by Abe after Wayne’s death. They do not seek any equity in the farming business. Their position is that Abe should be required to remain responsible for all of the debt accumulated after Wayne’s death, whatever the outcome.
Abe relied on a report dated 17 July 2024 prepared by an agricultural economist, Dr Mike Stephens of Meridian Agriculture. That report had been prepared on instructions from the solicitors for James and Hannah, who duly served it. In the end, James and Hannah did not to call Dr Stephens. However, counsel for Abe did call him and his report went into evidence. Dr Stephens was also cross-examined.
Dr Stephen concluded that the farm as it currently is, ‘can be a viable entity’.
One of the questions asked of Dr Stephens was whether the farms would be viable if split into three parcels. He expressed the view that, with debt levels where they were as at June 2023, properties of that size would not be viable.
I note that in his own evidence, Abe expressed the view that farming works on an economy of scale and that ‘if the farm was to be reduced and divided into three equal shares’ then it would be unworkable and that ‘the farm would not be successful’. This evidence was admitted on the basis that it was limited to evidence of Abe’s belief. His belief is in this respect consistent with Dr Stephens’ conclusion that a three-way division of the farm and farm debt would not be viable.
It is also relevant to take into account promises made to Abe about his own inheritance.
Abe’s evidence about his father’s promises to him was as follows.
In 1997, when Abe was 10 years old and driving a new tractor around the farm, Wayne said to him: ‘If you work hard enough and are committed to the farm, it will be yours one day’. I have no reason to doubt this evidence, although nothing much turns on it.
In early 2008, when Abe began a Diploma of Business Agriculture and Farming Management at the Primary Industry Centre, Wayne said to him: ‘I’ve always told you that if you put the work, you get rewarded with the business. It’s time that you have some land to your name.’ I accept this evidence. It is consistent with what I have found in connection with the purchase of Arizona and Ivanhoe. It is also consistent with other evidence to the effect that Wayne started to express a desire about putting land in Abe’s name at around this time.
After Wayne and Jo’s separation in late 2012, Wayne said to Abe:
“I don’t see a reason why you shouldn’t have the place. You have been doing the right thing, working hard. I don’t want this to happen again. I want to keep the farm together for future generations.”
I accept that Wayne said this. The evidence shows that Wayne did begin to more strongly favour the idea of transferring land to Abe from about the time that he and Jo separated. At this point (namely late 2012) it would however have been necessary to treat such a statement about ‘having the place’ as a mere statement of testamentary intention, because the separation created such uncertainty about Wayne’s ability to deal with the farm pending a property settlement with Jo. As at late 2012, this was still years away.
Abe says that he relied on what Wayne said to him about coming to own the farm. He says that if Wayne had not made these statements, he would not have worked as hard as he did on the farm.
I accept this evidence. Abe was fully committed to the task of farming the land during the whole of the period from – at least – the purchase of Ivanhoe and Arizona up to the time he acquired all of the properties shortly prior to Wayne’s death. His commitment to doing so did not waver according to the particular way in which that business was being conducted, or by whom. Over that period, his responsibilities only ever increased, as did the amount of work he was required to do in the farming business. I accept that at least one good reason why he was so committed to the farm was for the reason he gives, namely that Wayne led him to believe that he would come to own it, by inheritance or otherwise.
The substantive issues for determination in this part of the case are:
whether a family provision order for each of Hannah and James ought to be made having regard to the provisions of s 59 of the Succession Act; and
whether it is appropriate to make notional estate orders under Part 3.3 of the Succession Act and, if so, what orders should be made.
As to the first issue, the exercise involves a two-stage process. In Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40, Mason CJ, Deane and McHugh JJ said at 208:
“It is clear that, under these provisions, the court is required to carry out a two-stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased’s estate for the applicant.”
“The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance.”
“[78] Before an order for provision can be made in favour of a child of the deceased (who is an ‘eligible person’ within the meaning of s 59 of the Succession Act), the Court must be satisfied that ‘adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person’: Succession Act, s 59(1)(c).
[79] Satisfaction in this regard is ‘jurisdictional’ insofar as it is a prerequisite to the Court exercising its discretionary power to make an order for provision pursuant to s 59(2): see, for example, as to the use of the description ‘jurisdictional’, White v Barron (1980) 144 CLR 431 at 456; [1980] HCA 14; Singer at 208-210; Hampson v Hampson [2010] NSWCA 359; (2010) 5 ASTLR 116 at [69]-[72]. Care must, however, be taken when answering this jurisdictional question not to confine the relevant consideration to an applicant’s financial or material needs; the language of ‘proper maintenance, education or advancement’ involves more than simply a question of financial needs: see Sgro v Thompson [2017] NSWCA 326 at [68]-[74] (Sgro).
[80] Once the level of satisfaction referred to in [78] has been reached, the Court has a broad discretion, ‘having regard to the facts known to the Court at the time the order is made’ (emphasis added), to make such order for provision out of the estate as ought to be made ‘for the maintenance, education or advancement in life of the eligible person’: Succession Act, s 59(2).
[81] In considering both whether to make a family provision order and the nature of any such order if the threshold required by s 59(1)(c) is satisfied, the Court is entitled to consider the broad range of matters specified in s 60(2) of the Succession Act. The breadth of the matters that may be considered under s 60(2) does not, however, authorise the making of an order which is for a purpose other than ‘the maintenance, education or advancement in life of the eligible person’. Nor does it relieve the Court of the need to make the order ‘having regard to the facts known to the Court at the time the order is made. (emphasis added)’.”
I have also had regard to the excellent summary of the statutory scheme by Meek J in Tarbes v Taleb [2023] NSWSC 565 at [195]-[222].
Whether provision is ‘proper’ is informed largely by the factual matrix of each case, general knowledge and current social standards: Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31 at 502 (Gibbs J, Stephen and Mason JJ agreeing). It may also be informed by a consideration of the testator’s ‘moral obligation’ or ‘moral duty’: Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [25] and [121].
“(a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.
(b) It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life - such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his or her children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801.
(c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute: Taylor v Farrugia.
(d) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) [1981] 2 NSWLR 532; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45.
(e) The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 149.
(f) Although some may hold the view that equality between children does not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not consistent with that view. To the contrary, the Act specifically identifies, as matters that may be taken into consideration, individual conduct, circumstances, financial resources, including earning capacity, and financial needs, in the Court's determination of an applicant's case.”
It is also relevant to note what has been said about claims for provision in relation to relatively large estates. Although the estate in the present case is not large, the property that could potentially be designated as notional estate is of significant value.
The plaintiffs referred me to Blore v Lang (1960) 104 CLR 124; [1960] HCA 73 at 135 for the proposition that, where there is sufficient estate, it may be that the needs that may be met from it may extend beyond the ‘bread and butter of life’.
In the case of large estates, it is sometimes said that Courts are ‘free to make a more liberal assessment of what is proper provision in the sense that competition for limited resources is much reduced or eliminated and unqualified by competing claims’: Tarbes v Taleb at [227]. What is considered ‘proper’ provision for maintenance, education and advancement of an eligible person in the case of large estates may in some circumstances ‘far outweigh’ what would be considered ‘necessary’ for their ‘adequate’ maintenance, education and advancement: see Estate Grundy; La Valette v Chambers-Grundy [2018] NSWSC 104; (2018) 17 ASTLR 64 at [114] as cited by Meek J in Tarbes v Taleb at [230].
I note also Meek J’s comments at [231]-[232]:
“[231] The inquiry into adequacy is not limited to considering whether the plaintiff has enough to survive or to live comfortably without provision (or further provision, as the case may be) from the deceased’s estate: Spiteri v Vassallo at [19] per Williams J.
[232] What is adequate in any given case may transcend the necessities of life in a sense of basic requirements for food, clothing and shelter or what is necessary for subsistence. It may extend to consideration of matters that for example make life more comfortable or to advance a person’s position in life.”
“The ample size of the estate does not justify the Court in being profligate in disposing of the assets of the Deceased and in awarding to each Plaintiff an amount which is more than that to which that Plaintiff would be entitled. The Court should do no more than remedy the failure on the part of the Deceased to make adequate provision for the proper maintenance of each Plaintiff.”
“It must be emphasised that the statutory provision speaks of adequacy of provision for the ‘proper’ maintenance or advancement (education here not being relevant) in life, as was emphasised in Sgro v Thompson. The fact that this was a large estate (albeit that the bulk of the wealth was effectively tied up in the family company) does not provide a basis for some kind of blank cheque exercise ...”
“The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge.” (emphasis added)
“The nature of the estate may also be a relevant factor in the Court’s consideration. Yet, the Act does not direct the formal retention in the family of one form of property (such as a farm) against another. If a farm must be sold to provide for the proper maintenance, education or advancement in life of the applicant, that may be unavoidable. There are no special rules which apply to such cases.”
The relevance of the testator’s intentions in family provision cases was explained by White J in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127] and approved in Strang v Steiner [2019] NSWCA 143; (2019) 19 ASTLR 330 at [72]. I note his Honour’s observations about that matter.
The defendants particularly referred me to Salmon v Osmond [2015] NSWCA 42; (2015) 14 ASTLR 442 for the proposition that family provision orders must ‘give appropriate weight to the intentions of the testator and the circumstances of the beneficiaries under their will.’
In Salmon v Osmond, the deceased owned five grazing properties. He was survived by his wife and seven children. One of his children, Michael, had remained on the farm through his life and received minimal remuneration for his work there. The deceased made various bequests to his wife and several of his children. Michael and the deceased’s wife were significantly favoured.
The primary judge had ordered additional provision to be made to one of Michael’s sisters, in the sum of $200,000. The Court of Appeal found that this amount was disproportionately high in the context of Michael’s competing claim. The Court of Appeal instead ordered a legacy of $50,000 to be given to the sister in addition to the release of a $14,000 debt that the deceased had bequeathed her under his will. Part of the reasoning of the Court was that ‘the provision ordered by [the primary judge] altered the disposition of the estate to such an extent that the deceased’s wish that, of his children, Michael be the principal beneficiary, was not given appropriate weight.’ In coming to this amount, the Court of Appeal considered how much the sister would require to, and over what period of time the sister could reasonably, discharge her mortgage.
The case provides some guidance on the how the intentions of the testator may inform the question that arises under s 59 of the Succession Act, but I do not take it to lay down any generally applicable principle about that matter.
The parties’ respective submissions on this issue may be summarised as follows.
James and Hannah submit that their legacies under Wayne’s will were dwarfed by the benefits provided to Abe under the 18 November 2020 contract of sale and the Loan Variation. Their benefits were not only vastly smaller in gross amount ($600,000 each compared to over $20 million) but were payable over time. Moreover, the estate’s ability to fund their legacies depends utterly on Abe’s ability to service the Loan Variation, which as events have shown is not guaranteed.
Furthermore, they submit, Wayne only made any provision for them at all on the basis of Ms Ryan’s firm advice that James and Hannah would otherwise have a sound basis to seek an order under s 59 of the Succession Act. James submits that his estrangement from his father either related to his father’s homophobic intolerance of James’s sexuality or his steadfast and strongly held view that James had sided with his mother during the divorce. He submits that Wayne’s testamentary wishes were neither rational nor well informed.
The plaintiffs also submit that the promises made by their parents, even if not sufficient to ground any relief based on proprietary estoppel, plainly played a significant role in their lives. They say that this fact should inform the Court’s approach to assessing Wayne’s moral obligation to them. They submit that the proper maintenance and advancement in life of each plaintiff involves their ability to realise their lifelong expectations of making a living off the land.
Abe submits that no order for further provision should be made. He particularly points to the powerful evidence that Wayne’s testamentary wishes were for the farm properties to remain intact and for them to be farmed by Abe. Wayne firmly believed that the farm should not be split up. Abe submits that the legacies for James and Hannah reflect what Wayne believed to be the amount that could be provided out of the estate without risking the loss of the farm as a continuing, single enterprise.
Abe also points out that the plaintiffs have undertaken tertiary education and have opportunities for gainful employment. Each is, in fact, very favourably employed. Each will inherit from their mother, who received half of the 2014 value of the farms under the divorce settlement. By contrast, Abe’s ability to support himself, his partner and child, and the support payments he is required to make to his former wife, are all dependent on the income he receives from the farming business.
Finally, Abe submits that his siblings do not have a ‘need’ to acquire farming properties. He says that a testator is not generally under any moral obligation to provide a mortgage-free home, much less a farming property, to an independent, adult child.
The relevant question for determination, to be approached in the light of the authorities discussed above, is whether ‘adequate provision for the proper maintenance, education or advancement in life of the [plaintiffs] has not been made by the will of the deceased person’: s 59(1)(c).
In my view, Wayne made adequate provision for James but did not make adequate provision for Hannah. As will be seen, although I have concluded this issue in Hannah’s favour, my conclusion nevertheless involves a rejection of substantial aspects of her case. Proper provision for Hannah, in my view, is nowhere near the amount sought by her.
I will state my reasons for these conclusions by dealing first with matters that are common to the plaintiffs and then with their individual circumstances.
James and Hannah are adults. They made lives for themselves entirely independently of Wayne as soon as they were able to do so. They had been leading entirely separate lives from him for many years prior to his death. Neither had been financially dependent on Wayne since their student days.
Wayne’s wishes in relation to how his estate should be divided among his three children were very clearly expressed. The steps which he took during his lifetime to transfer the land to Abe and the content of his final will reflect his clearly expressed, sincere and abiding interest in ensuring that the farm was not split up. This consideration animated his thinking about his estate more than any other since at least 2015. He was entitled to give primacy to this consideration. It was not irrational: see [72] of Salmon v Osmond. He was the third generation of his family to farm the Barmedman region and he had an honest, ardent desire that Abe should be the fourth.
Wayne also took careful legal advice over a long period about how to deal with his land and how to prepare his will. Notwithstanding his temptation to cut James and Hannah out of his will altogether, which he initially wanted to do and which he had been previously advised to do, he accepted Ms Ryan’s advice that he should consider them in his will, which is what he did.
The plaintiffs submitted that the provision made for James and Hannah was made under sufferance and that it did not reflect a genuine weighing of his children’s legitimate claims. I do not however accept that characterisation of what occurred. The evidence shows that Wayne accepted Ms Ryan’s advice – despite his instinct to do otherwise – and that the amounts he decided to leave to James and Hannah were, in the end, even more than Ms Ryan had advised. Relevantly, the legacies for James and Hannah were calculated in an amount that Wayne believed Abe would be able to bear without having to sell any of the farming properties. This reflected his main concern, which was to assure the ongoing viability of the farm.
Although it is appropriate to have regard to the statements made by Wayne during Hannah and James’s childhoods and early adulthoods about a potential three-way split of the lands, I do not consider it appropriate to give that matter significant weight in determining whether they received adequate provision. That is because, as I have already found, those statements were not binding promises and it was not reasonable for Hannah and James to rely on them as such. They were not promises of the kind described in Alexander v Jansson [2010] NSWCA 176; (2010) 6 ASTLR 432 at [18], that is, promises upon which there was detrimental reliance. Nevertheless, I do take them into account and I do give them some weight in deciding whether the legacies for the plaintiffs were adequate.
So far as the question of financial need is concerned, the main plank of the plaintiffs’ case is that they require further provision to allow them to pursue farming in their own right. This aspect of their claimed financial need is common to them both.
In addition to the matters referred to above, it is necessary to consider James’s particular circumstances independently of those of his sister. As I said at paragraph [351], he has extremely good professional and academic qualifications. He has excellent, stable employment in the Commonwealth public service. He has savings in superannuation and an investment property. He stands to inherit half of his mother’s estate, whatever that may be. He lives in a stable relationship with his partner, from whom he is relatively economically independent. They own their home and comfortably service their debt.
I consider that the legacy of $600,000 represents an appropriate contribution towards James’s financial needs.
James’s mortgage on the Cammeray property currently sits at about $350,000. His share of the mortgage on the Watson property is about $342,500. The $600,000 legacy would cover a significant proportion of James’s overall indebtedness.
It is also relevant to note that the Watson property was only purchased in December 2024. Prior to the purchase of the Watson property, his $600,000 legacy would have covered the entirety of the Cammeray mortgage and left surplus funds which could have been used to fund other avenues of advancement in life.
Other considerations also bear upon the question of whether $600,000 is adequate provision for James. Since 2015, Wayne and James had barely spoken. The only occasions on which they had seen one another were at the funerals for Wayne’s parents. Even then, James’s evidence was that their interactions were tense. At one of them, they only made ‘passing comments’ to one another. This is not a criticism of either of them. It does however illustrate the degree to which the filial ties between them had loosened by the time of Wayne’s death.
James submitted that Wayne harboured two irrational prejudices against him and they bore on their estrangement and on Wayne’s decision-making about the farms and his estate. The first concerns his homophobic intolerance of James’s sexuality, which I accept formed part of his attitude towards James. However, I do not accept that is a reason to find that James’s legacy is inadequate. It is important to note that the first will made by Wayne after he and James spoke about this issue still left a substantial legacy to James: see paragraph [53] above. This was even after James had left the farm without saying goodbye. It was only later that Wayne made a will in which he disinherited James. Abe also pointed out that Wayne never drew a distinction between James and Hannah so far as his testamentary obligations were concerned, either before or after their falling out. Earlier and later wills treated Hannah and James on a like footing. The final will gave them identical legacies. Although I accept that Wayne was intolerant of James’s sexuality and that this may have been a significant reason behind their estrangement, he ultimately saw him as standing in the same position as Hannah so far as his testamentary obligations were concerned.
The question of whether adequate provision was made for Hannah is more finely balanced.
Hannah’s financial needs are relatively greater than James’s, in that she is the main income-earner in a family of four which includes two young children. She does presently earn more than either of her siblings, but she has relatively less in superannuation and no investments compared to James.
Hannah and Jarrod’s home mortgage stands at about $610,780. In contrast to James, Hannah did not receive any help from either Jo or Wayne when she sought to purchase her home. She also has other liabilities. She is relatively less able (than James) to meet contingencies such as replacing cars without going into even further debt.
Although Hannah and Jarrod own the Albury property jointly, Hannah earns significantly more than Jarrod, whose income is variable. The $600,000 legacy which Hannah was left would likely cover a significant proportion of the entire mortgage, and all of her ‘share’ of the mortgage repayment obligations. However, to the extent Hannah has received a portion of that legacy, she has not been able to use the funds to pay down her household debt.
Even if she were to contribute the whole of the remaining $240,000 to the home mortgage, she will still have reasonably significant indebtedness. It is also appropriate to take into account that she has entered into a payment plan with the ATO, and has had to call on friends for financial assistance and deferred household expenses
Hannah was also relatively closer (than James) to Wayne in the years preceding his death. Although Wayne did not accept her invitation to attend Christmas in 2020, it is relevant that their relationship had recovered from their estrangement to the point where she wanted him to join her family for Christmas at all. The evidence about their interactions in his final months shows that there was some degree of rapprochement even despite the NCAT proceedings. Hannah also discontinued as plaintiff in these proceedings during Wayne’s lifetime out of concern for his wellbeing.
The sum of $600,000 represents a significant contribution towards Hannah’s financial position. However, I do not consider that it was adequate having regard to all of the circumstances to which I have referred.
The question of whether I should now order further provision for Hannah requires a consideration of Part 3.3 of the Succession Act, because it is likely that the defendants are unable to meet any order for further provision except out of notional estate.
At the conclusion of the hearing, the defendants submitted that if I were minded to make an order for further provision, then they should be given an opportunity to be heard in relation to the form of any such order and, in particular, the form of any notional estate orders. The plaintiffs did not submit that this would be an inappropriate course to take.
It is appropriate in these circumstances that I at least indicate the amount of further provision that I propose to order. This will allow the parties to address me on the form of the order and the identification of particular property as notional estate.
I do not consider it at all appropriate to make an order for further provision in an amount sufficient for Hannah to acquire a farming property, which is what she seeks. As I explained at paragraphs [470]-[472], her primary case is impossible to accept.
Hannah is nevertheless left with a sizeable amount of household debt even after taking into account the $240,000 she is yet to receive as part of her legacy. Hannah and Jarrod have used the instalments of that legacy to meet other household financial commitments and have not been able to reduce their home mortgage in any material way. In my view, her legacy of $600,000 did not sufficiently account for her needs as the main earner in a family of four including two young children.
However, in determining a proper amount of provision, it remains appropriate to take into account Wayne’s clearly expressed desires concerning the farm. The matters to which I referred in paragraphs [465]-[475] cause me to conclude that in determining a proper amount of provision, significant weight should still be given to Wayne’s general intentions in that regard. As I have explained, his overall testamentary wishes were developed over a long period of time and with the benefit of thoughtful legal advice, which he heeded.
In balancing the considerations of Hannah’s needs with Wayne’s testamentary intentions and with Abe’s interests in keeping the farm intact as far as possible, I consider that a proper amount of provision for Hannah (including her $600,000 legacy) is $900,000. Subject to hearing the parties further in relation to the application of Part 3.3 of the Succession Act, I consider that Hannah should receive further provision out of notional estate in the sum of $300,000.
The additional amount of provision which I propose to order out of notional estate may to some degree imperil Abe’s ability to keep the whole of the farmlands intact. If it does so (which, on the evidence, is unclear) then it is to a degree that I consider to be appropriate, particularly when regard is had to Abe’s conduct in reporting Hannah to the police without justification. At the same time, it is an amount that still gives primacy to Wayne’s desire to see the farm continue under the stewardship of Abe, who has taken it on in its entirety including all of the debt associated with it.
The proceedings will be dismissed insofar as they concern the first plaintiff, James.
I will direct the second plaintiff and the defendants to make submissions in relation to Part 3.3 of the Succession Act and as to the form of final orders. I will also give the parties an opportunity to be heard on costs.
The orders and directions will be as follows:
The proceedings brought by the first plaintiff are dismissed.
Direct the second plaintiff to file and serve short submissions as to the form of an order for further provision and any notional estate orders on or before 15 December 2025.
Direct the defendants to file and serve short submissions as to the form of an order for further provision for the second plaintiff and any notional estate orders on or before 3 February 2026.
Direct the second plaintiff to file and serve any submissions in reply on or before 17 February 2026.
Direct the parties to file and serve any evidence and short submissions on the question of costs on or before 15 December 2025.
Direct the parties to file and service any evidence and short submissions in reply on the question of costs on or before 3 February 2026.
**********
Bushell
George [2025] NSWSC 1347
(1988) 164 CLR 604
(1960) 104 CLR 124
(1999) 196 CLR 101
(1980) 144 CLR 490
(2003) 59 NSWLR 312
(2024) 99 ALJR 126
(2023) 71 VR 581
(2017) 53 VR 311
(2020) 383 ALR 469
(2014) 251 CLR 505
(1994) 181 CLR 201
(2013) 85 NSWLR 253
(2023) 416 ALR 181
(2021) 106 NSWLR 227
(2005) 221 CLR 191
(1995) 49 NSWLR 315
(1980) 144 CLR 431
(1989) 1 WAR 37
(1979) 143 CLR 134
Shortly thereafter, the caveats having lapsed, the contract for sale was completed and Abe became the registered proprietor and Crown lessee of all of the lots comprising the farm. He now says that by virtue of s 43 of the Real Property Act 1900 (NSW) he took title free of James and Hannah’s equitable claims despite being on notice of them. If the plaintiffs otherwise succeed in their proprietary estoppel case, it will be necessary to determine whether any proprietary relief is available in the light of s 43.
The evidence included the following diagram of the properties making up the farm:
There are numerous improvements on the farm. These were described by James as follows:
Their first meeting alone lasted about 50 minutes, plus some additional time spent with Wayne and Abe together. They discussed Ms Ryan’s suggestion of transferring land to Abe with a loan back and then assigning the loan to a trust. Wayne made very clear that he wanted to transfer the whole of the farm properties to Abe. Ms Ryan explained to Wayne that he would need to pay out the balance of Jo’s entitlements from their property settlement in order for the transactions to occur, for which he would need to borrow.
The outcome of their meeting was that Ms Ryan would organise paperwork to discharge the mortgage to Jo and that she would send a letter to Rabobank seeking their agreement to the transaction. They would meet at a later point to sign paperwork.
Their next meeting was on 12 October 2020 at Ms Ryan’s office. Wayne, Abe and Ms Ryan met for about 20 minutes. There seemed to be no issue about Rabobank providing funds to allow Jo to be paid out, although the details of the transaction were not in evidence.
Fourthly, the evidence does not show that Hannah has ever asserted the existence of promises about the farm prior to these proceedings. She did not raise the issue in the context of resigning from Clayton Utz, returning from Laos, or returning from Ethiopia. Nor did she mention any promises about the farm in the course of the NCAT proceedings. By the time those proceedings were brought, she had already been a named plaintiff in these proceedings in which her fundamental allegation was that any transfer of land to Abe would be a clear departure from binding promises to leave one third of the farm to her. However, she discontinued that case and instead turned her attention to having a guardian appointed.
In the course of the NCAT proceedings, Hannah appears never to have mentioned that Wayne was acting contrary to clear promises made by him over many years to all three of his children. Nor did Jo, who supported the application, mention that such promises had been made.
Some of the differences between Hannah’s evidence before NCAT and her evidence in these proceedings warrant further comment. At paragraph [19] of her affidavit before NCAT, Hannah said that the following conversation happened concerning the purchase of Currawong:
This makes it all the more difficult to accept that her decision to return to Australia from Ethiopia in September 2014 was made in reliance on Wayne’s promises about her inheritance. Hannah’s evidence about the decision to move back to Australia in September 2014 is set out at paragraph [162] above. However, by this point she knew that Wayne did not consider himself bound by the representations and expectations alleged in these proceedings. As the events of 2012 showed, he was not willing to have her back on the farm despite having met his so-called ‘qualification expectation’. I do not accept that Hannah’s decision to come back to Australia in 2014 was attributable to her confident belief that she was going to inherit one third of the farm. By this point, Hannah had received clear indications that it was not guaranteed that Wayne would honour any previous representations concerning ownership of the farm: Q v E Co at [89].
The same may be said about Hannah’s decision to find work in the agricultural sector between 2016 and 2018. She said that she ‘would not have had the same focus on pursuing regional roles in the agricultural sector’ if she had known that Wayne did not intend to keep his promise to her. She said that she would have ‘looked at non-agricultural roles’. She said that had she found a good opportunity that was located in Melbourne or Canberra, she would have considered commuting from Albury.
I am unable to accept this evidence. By the time she and Jarrod bought their house in Albury at the end of 2015, Hannah had had a major falling out with both her father and mother, which lasted for years. Despite having met the ‘qualification expectation’, she had already been rebuffed from working on the farm on her return from Laos. Nor had anything come of her hopes of working on the farm on her return from Ethiopia. She was fully aware that her parents had contemplated transferring land to Abe in the past, contrary to the alleged promises. This proposal had not gone ahead, but only because she and James had threatened to approach the guardianship tribunal. Furthermore, although not decisive, it is relevant that her father never actually encouraged her to return. By 2016, she could not have had any doubt that her father did not consider himself bound by long-ago promises of equal treatment.
I therefore do not accept that Hannah’s numerous attempts to obtain work in the agricultural sector between 2016 and 2018 were made in reliance on Wayne’s promise that she would inherit a third of his property. As with the other acts of reliance for which she contends, the position rises no higher than that she took the prospect of inheriting a share of the farm into account.
These are all entirely understandable statements from someone who is concerned about the decision his parents might make about their property and, specifically, whether they might depart from previously expressed general statements of intent. They are far less understandable as statements from someone who believes that the question of inheritance was definitively settled years prior. When he was asked in cross-examination about why he had not referred to any promise in this context, his answer was that ‘it had always been implied’. I do not however think that there was any implied reference to a promise in his communications at this time. To the contrary, I infer from his communications at this time that he did not consider that binding promises had been made.
During his childhood and early adulthood, James never sought any assurances from his father about what he proposed to do about succession. It is a matter that James was not anxious about and did not raise. It seems to have been very far from his mind. He was happy to head off to university to study and then to join KPMG. There seems never to have been an occasion on which a solemn assurance about succession would naturally have been made. A reasonable person in this position would have understood unsolicited statements from his father about succession as statements of testamentary intent, not irrevocable promises.
In my view, although I am willing to accept that Wayne said the things that James attributes to him, I find that those statements were not clear and unambiguous representations of the kind pleaded.
James submits that his cash flow modelling shows negative cashflow on a monthly basis. This submission is based on Annexure B to James’s affidavit updating his financial position for the hearing. Annexure B shows that James has a monthly cash shortfall of $2,376 once all of the abovementioned income and expenditure is taken into account.
However, the monthly cash shortfall figure of $2,376 – which would be a fairly serious shortfall for any individual – would only be correct if James intended to make concessional superannuation contributions of $5,000 per month, every month each year. As mentioned above, James’s evidence is silent as to how often he intends to make additional $5,000 contributions to superannuation. It seems most unlikely that James intends to make an additional $5,000 contribution to superannuation every month. Apart from the fact that he simply cannot afford to do so, he would well and truly exceed his concessional contributions cap. It seems much more likely that what he meant in his Annexure B was that he intends to make a single $5,000 concessional contribution each year. If that is so, his net monthly position before travel expenses, and ignoring his employer’s contribution to superannuation, is that he has a surplus of $2,499. Once his proposed annual domestic and international travel is taken into account, his monthly surplus is $832. These figures assume that he still receives his monthly CFO income of $1,000. It follows that he will be only slightly cashflow negative even if he has multiple domestic holidays and has an international holiday every year, once he ceases to earn income from his part time CFO position.
In addition to his share of the Watson property, Scott owns a property in Waterloo, New South Wales, and a property in Townsville, Queensland. The Waterloo property is worth $700,000 and is subject to a mortgage of about $92,000. The Townsville property is worth about $250,000 and is subject to a mortgage of about $93,000.
Scott has superannuation of about $393,000. He owns a car worth about $35,000. Scott’s gross annual income is about $116,000, which comes to about $82,000 after tax. This equates to $6,833.33 per month.
James and Scott are relatively financially independent from one another. Apart from their joint arrangements concerning the Watson home, they make equal contributions to household and living expenses. James does not expect to be supported by Scott.
James has been working in his current role since 10 July 2023. Although there is the potential for promotion within the public service, he has made several applications for other positions, including EL2 positions within his current department, but has not been successful to date. He has been informed that the unit in which he presently works is likely to undergo some restructuring and so he may be placed on a redeployment register. He is unsure how long this process will take and he believes that his prospects for promotion are low for the foreseeable future.
Abe and his partner, Kiri Baker, live together at Bridgefield occasionally but predominantly live separately with Abe living at Bridgefield and Kiri in Wagga Wagga. They do not share finances. Kiri’s taxable income for the year ended 30 June 2023 was $114,840. She also had $201,478 in her superannuation account as of March 2024. Abe says that Kiri does not support him financially, nor does he expect her to do so.
Abe is also required to fund the legacies to Hannah and James in accordance with clause 5.3 of Wayne’s will. The most recent instalments were due on 2 May 2025, but Abe was unable to make the payments. Shortly prior to the hearing, Abe sought the plaintiffs’ consent to vary the undertaking referred to at paragraph [253] to allow him to fund the May 2025 instalments of the legacies. The plaintiffs refused.
I am entirely unable to accept this submission. Neither plaintiff has demonstrated that their maintenance, education and advancement in life has been or will be at all compromised by the fact that Wayne did not leave them sufficient funds to acquire a farming property. Each plaintiff has led and will continue to lead a full and rewarding life quite apart from the fact that they do not also own a farm.
In final submissions, the total provision which the plaintiffs say they should have received under the will for this purpose comes to between $11 million and $12 million. Further provision of that magnitude would amount to such a destruction of the scheme of the will and to such a thoroughgoing rebuke of Wayne’s obvious wishes concerning the continuity and viability of the farm that the submission is impossible to accept, whatever promises may have been made to the plaintiffs during their childhood and early adulthood about their potential inheritance. Given that Abe currently guarantees at least the Rabobank All-in-One facilities associated with the farming business, totalling about $6 million, and that his only asset is the farm, the orders sought by the plaintiffs would leave him in an impossible financial position.
The fact that the potential notional estate in this case is relatively large is a matter to be taken into account, but it is not a matter that causes me to reach any different conclusion about the weight to be given to the plaintiffs’ submission about acquiring farmland. Often with large estates the ‘competition for resources’ is much reduced because an order for further provision can be made without unduly affecting the financial interests of other beneficiaries. I am not persuaded that this is such a case. The value of the potential notional estate must be understood in the light of the debt associated with it and the variable income which it produces. The fact that Abe is struggling to make sufficient profit to fund the plaintiffs’ legacies shows that any further provision may require the sale of land, which is something that Wayne did not wish to occur. Although not decisive, that is a matter that is appropriate to take into account in determining whether legacies of $600,000 were adequate and in reaching a conclusion as to the amount and form of any family provision order.
Although I recognise the apparent unfairness in one child inheriting substantially more than the others, it is important to give due weight to the testator’s own assessment of what was fair in all the circumstances. Although James and Hannah each made contributions to the farms over the years, these were sporadic and brief. Their contributions were vastly outweighed by Abe’s contributions to the farm. Wayne’s sense of fairness was undoubtedly affected by his strong desire to keep the farm intact and for Abe to farm it. In so far as he did want Abe to own and farm it, this undoubtedly reflected Abe’s significantly greater connection with and contributions to the farm.
Wayne’s sense of fairness was also undoubtedly affected by the legal action which Hannah and James had taken against him. This included the lodgement of the caveats, the commencement of these proceedings and the NCAT proceedings. So far as James was concerned, Wayne found himself late in life, at a time of grave ill health, being sued by a son with whom he had barely spoken since 2015. The NCAT proceedings would have been especially upsetting because they sought the appointment of a guardian. This involved a challenge to his capacity, in part on the basis of evidence from Jo, from whom Wayne had been acrimoniously divorced. Wayne was angered and upset by these manoeuvres. He found them hurtful. He was entitled to feel that way and he was entitled to take these matters into account in dividing his estate. These are matters that are appropriate for me to take into account in determining whether Hannah and James received adequate provision.
The second matter concerns Wayne’s conviction that James sided with Jo during the divorce and that he valued their marital assets in a way that favoured Jo. I accept that this was an aspect of Wayne’s thinking when it came to his will. It is a matter that was raised in discussions (years later) with Ms Ryan. Nevertheless, while this may have contributed to their estrangement, the evidence of Ms Ryan shows that Wayne’s decision to give James a legacy of $600,000 was made in spite of this concern, not because of it.
The matters mentioned in the previous two paragraphs are matters which, no doubt, caused or worsened the breakdown in their relationship. However, they are not a reason to conclude that James’s legacy of $600,000 was insufficient. Neither individually nor together were those prejudices anywhere near as significant in Wayne’s decision-making as his other and more pressing concerns, which were to keep the farm intact, for Abe to inherit it and for Abe to continue to farm it. It was these concerns more than any other that informed the steps he took to deal with his estate during his lifetime and by his final will. They remain appropriate matters for me to take into account in determining whether James received insufficient provision.
Taking all of these matters into account, I am satisfied that adequate provision has been made for James.
Subject to hearing the parties further in relation to the application of Part 3.3 of the Succession Act, I consider that Hannah should also receive further provision out of notional estate in the sum of $300,000.