Proprietary estoppel - Claim to interest in family farming lands - Son acting on representations of parents - Return to work on family farming lands - Promise for name to be placed on title to same degree as parents - Acting on similar promises over many years - Building house on other family land after oral agreement with parents for the purchase of the land - Land not transferred to plaintiff during mother's lifetime - Dispute over location of house - Caveat to protect interest - Eventual transfer of title of house block to plaintiff - Plaintiff conducting sand mining operations on other family lands - Royalty agreement with father - Dispute over distribution of mother's estate - Deterioration of relationships between plaintiff, his father and other members of the family - Legal proceedings concerning sand mining rights - Abrupt termination of plaintiff's access to farming lands - Claim for 1/3 interest in farming lands

Declaration and orders that plaintiff has a one undivided equal third share as tenant in common with the defendant in the subject land

Cameron v Murdoch [1983] WAR 321

Dillwyn v Llewelyn [1862] EngR 908; (1862) 4 De GF & J 517; (1862) 45 ER 1285

Donis v Donis [2007] VSCA 89; (2007) 19 VR 577

Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101

Gregory v Mighell [1811] EngR 580; (1811) 18 Ves 328; (1811) 34 ER 341

Grundt v Great Boulder Pty Gold Mines Ltd [1937] HCA 58; (1937) 59 CLR 641

Lake v Craddock (1732) 13 P Wms 157; 25 ER 101

Riches v Hogben [1985] 2 Qd R 292

1 EM HEENAN J: This action by an eldest son against his aged father seeks a declaration and orders that the defendant, Mr Phillip James Consolaro (Felice Giacomo Consolaro) who presently is the sole registered proprietor of a tract of farming land on Great Northern Highway near Walyunga, upon which there is also located a commercial sandpit, holds that land, as to a one-third undivided share, on trust for the plaintiff, Mr Ross Joseph Consolaro. The plaintiff seeks orders that the defendant should transfer that third interest in the land to him immediately, or alternatively that the interest should be transferred to him on the death of his father. The plaintiff also presented his case on the basis that if some interest in the Walyunga land other than a one-third undivided share was the equity in the land which should be recognised for the plaintiff then such share as so ascertained should be declared to be the extent of the interest of the plaintiff or, alternatively, that other relief sufficient to recognise that interest should be granted.

2 Essentially, the plaintiff's claim is that from an early age he worked on the various Consolaro farming properties and gave up opportunities to pursue other trades or careers on the faith of a succession of promises made by his father, the defendant, or more frequently by his late mother, Mrs Winnie Patricia Consolaro, on behalf of herself and the defendant, that in return his name would be put on the title deeds to the family properties as an equal one-third owner of the lands together with his father and mother. Accordingly, the claim advanced by the plaintiff is of the kind recognised in Dillwyn v Llewelyn [1862] EngR 908; (1862) 4 De GF & J 517; (1862) 45 ER 1285; Olsson v Dyson (1969) 120 CLR 365; Ramsden v Dyson (1866) LR1HL 129; Riches v Hogben [1985] 2 Qd R 292; and, more recently, in Donis v Donis [2007] VSCA 89; (2007) 19 VR 577 for which, although as that last case illustrates and the decision in Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101 demonstrates, the remedy which equity may determine is appropriate in the particular instance might be a pecuniary rather than a proprietary one.

3 The plaintiff's claim requires a review of the activities of the Consolaro family and their farming operations over many years. Phillip and Winnie Consolaro established and operated a vineyard property in Herne Hill on the corner of Great Northern Highway and Vine Street in 1938. This is where they lived and raised their family of four children and two adopted children who were, respectively, the nephew and niece of Mrs Winnie Consolaro and, therefore, cousins of the plaintiff, his brother and sisters. This land, which has come to be known as the Vine Street property, was used for several productive purposes at different times. There were vineyards, vegetables and occasionally other small crops, a commercial wood yard, and a contract fuel depot, all operated by various members of the family from time to time. There was an old house in which the mother and father lived, and later a newer house into which they and the family shifted. Later still, a third house was moved to the property for the eldest daughter upon her marriage. Still later, a home was built for the plaintiff and his wife in which he and his family still live. How the plaintiff's home came to be built, where it was to be located and what were the arrangements between the plaintiff and his mother and father are the subject of much controversy in this case and will be addressed more fully later. Many years later in 1994 the land upon which the plaintiff's home had been erected was subdivided and transferred into the names of the plaintiff and his wife.

4 The Walyunga property comprised approximately 162 hectares (425 acres) when purchased by Phillip and Winnie Consolaro in 1966 as joint tenants. Over the years the area has been reduced because a section of about 12 acres was taken by the local shire. Another seven acres was used for other purposes and about five acres (2.09 ha) was subdivided off and transferred by Mr and Mrs Phillip Consolaro to their adopted daughter, Louise Cepo and her husband, where she and her family now live. The result is that the area of Walyunga presently remaining is approximately 401 acres and it comprises a farm and, as previously mentioned, a commercial sandpit. The operations of that sandpit were an issue of contention between the plaintiff and the defendant which seems to have led to the final break-up of the relationship between them but the details of that controversy will be described later.

5 In 1979 Phillip and Winnie Consolaro bought another farming property consisting of about 81 acres at Mount Warbrook and this has been referred to as the 'Deepdale' farm. Hay was grown on that property most seasons and cattle were pastured there. Mr Phillip Consolaro, the plaintiff and others worked there as occasion required and attended to the crops and stock. 'Deepdale' was sold by Phillip and Winnie Consolaro in 1988.

6 Mr Phillip James Consolaro was born in Italy on 8 September 1911. He came to Australia as a young man and in due course met Miss Winnie (Vinka) Svilicich, whom he married some time in 1936. She and her family were of Slovakian descent and, according to the plaintiff, when the children were young the family spoke Slovakian rather than Italian at home, although all were fluent in English. Phillip and Winnie Consolaro had four children:

• Norma Adelaide Consolaro (Gordon), born 3 December 1936, who married Robert Gordon on 4 May 1963;
• Ross Joseph Consolaro, born on 31 January 1948, who married Judith Marylin Consolaro in 1970;
• Gail Lucille Consolaro (Rudez), born on 1 May 1950, who married Ante Rudez on 17 June 1971; and
• Rodney James Consolaro, born on 3 September 1953, who married on 6 September 1975.

7 Mrs Winnie Consolaro had a sister, Miss Kate Svilicich, who married Mr George Klarie. They had two children, Mr Michael Klarie, born on 8 January 1951, and Miss Louise Hope Klarie, born on 13 November 1963. Sadly, however, Mrs Kate Klarie died on 22 May 1965, when Michael was only 14 and Louise not quite two years of age. By agreement Michael and Louise Klarie were taken into the Consolaro family and were raised by Phillip and Winnie Consolaro and treated as their children, equally with their four cousins. Their father, Mr George Klarie, also lived at the Vine Street property with Mr and Mrs Phillip Consolaro for about six months a year and helped with vineyard work and the service of customers at the fuel depot. He died in 1981.

8 So this family, Phillip and Winnie Consolaro and what were, in effect, six children, were financially dependent upon the products of the Vine Street property and the work and enterprise of Mr Phillip Consolaro, the operations of the fuel depot and the wood yard and the extended farming operations at Deepdale and Walyunga. The family was assisted by other relatives and friends helping in the pruning and harvesting seasons but money was always short and the work was long, arduous and not very well remunerated. Nevertheless, the family prospered in its way by dint of a lot of hard work by all the members of the family and by great frugality. All the financial arrangements, the collection of moneys, the payment of wages, expenses and other outgoings and the allocation of moneys among the members of the family were handled by Mrs Winnie Consolaro. Her husband, Phillip, worked very hard on all aspects of the family business operations but left financial matters entirely to his wife. She had her own form of record keeping and attended manually to the payment of accounts and the recording of receipts in exercise books which she kept for that purpose in the Vine Street house. As will be seen, when the plaintiff Ross Consolaro and later his brother Rodney Consolaro were employed but living at home, they would give all their wages to their mother and she would give them money for daily living but, in effect, treat their wages as contributions to the general family operations.

9 After she was married Mrs Norma Gordon lived with her husband for a relatively short time at Bellevue but they moved back to the Vine Street property where they lived until 1985. Then Mrs Winnie Consolaro bought a house and land nearby at Bullsbrook and Mr and Mrs Gordon moved there where Norma Gordon also operated a small adjacent delicatessen business, ostensibly in partnership with her mother. Norma Gordon was Mrs Winnie Consolaro's constant companion and was familiar, to some extent, with her mother's financial methods. She was the eldest child, being nearly 12 years older than the next child, her brother Ross Consolaro, the plaintiff, and it is therefore not surprising that she had this close affinity with her mother. There had, in fact, been another son born in 1939 who died at or shortly after birth which, together with the intervening war years, provides some explanation of the age difference between Norma Gordon and the other children.

10 The plaintiff, Ross Consolaro, lived in the Vine Street property continuously until about six months before his marriage in 1970. Then he moved out and went and lived with his fiancée's family in Wembley until the two were married, after which they both came to live at Vine Street in the old house. Mrs Judith Consolaro was of an Australian family and it is clear that she was not made very welcome by her mother-in-law or father-in-law and I am satisfied that she had to endure many difficulties and hostilities over the years because of her different background. Ross Consolaro asked his mother and father for permission to build a home for himself and Judith on the Vine Street land and this was eventually agreed upon and a site identified. The house was built in 1976 and Ross Consolaro and his wife, Judith, have lived there ever since. However, the siting and construction of that house has since become a cause of animosity between Ross Consolaro and his own family on the one hand, his father, and Norma Gordon on the other. On this issue I am satisfied that the rights are unequivocally with Ross Consolaro and his family but the allegations which have been made against him and persisted in over many years, despite the clearest of evidence to the contrary, are factors which tell greatly against the credit of those who have made and persisted in the allegations.

11 Gail Consolaro married Ante Rudez in 1971 and they now live at Bullsbrook.

12 Rodney Consolaro was subject to frequent bouts of illness as a child. These prevented him from taking a major role in the manual operations of the vineyard and the other farming properties. After his marriage he moved to Osborne Park and then bought a home in Wanneroo, where he still lives with his wife and family. He experienced financial difficulties and his mother, Mrs Winnie Consolaro, persuaded him to return to work at the Vine Street property and on the other properties, and he did this for a period of about 12 years from about 1980 to 1992.

13 Tragically, Michael Klarie took his own life on 17 November 1980. His death affected the other members of the family very severely.

14 Louise Klarie-Consolaro married Graeme David Cepo in 1991 and in 1992 they were given a 2.09 hectare block subdivided out of the Walyunga land by Mr and Mrs Phillip Consolaro, and that is where she and her family have been living since.

15 Mrs Winnie Patricia Consolaro died on 17 October 1993. She had been diagnosed with cancer in about 1987 and although her death was expected, it affected all the members of the family very greatly. She was the centre about which the rest of the family revolved and there was no doubt that she was the major decision-maker and the arbiter of all financial arrangements within the family. By her will she appointed her husband, Phillip Consolaro, as her sole executor or trustee but if he should have predeceased her or failed to act, she appointed her son, Ross Consolaro, and daughter, Norma Gordon, as joint executors and trustees. Phillip Consolaro sought and was granted probate of the will on 28 April 1994 and embarked upon the administration of the estate. Under the will the principal dispositions were:

(b) the residue of the estate to be held by the trustee upon trust:

• to pay the income to Phillip Consolaro during his life;
• thereupon absolutely as to both corpus and income for her four children, Norma, Ross, Gail and Rodney as tenants in common in equal shares;

subject to powers of the trustee to retain investments and to continue or carry on any business in which the textatrix may have been involved and with ample powers, including a power to borrow.

16 That will was made on 11 May 1976, some 17 years before Mrs Winnie Consolaro's death. It was also made before the death of Michael Klarie, who, unlike his sister Louise, was not mentioned as a beneficiary. At the time of Mrs Winnie Consolaro's death the family still owned all of Vine Street and the land at Walyunga but Deepdale had been sold in 1988, as previously noted.

17 The role of Mrs Winnie Consolaro in the performance and discharge of all the financial obligations of the family affairs is of significance when it comes to the representations alleged to have been made to the plaintiff about the grant of a share in family lands to him. One of the defences is that all the alleged representations were made by the mother and not the father but that does not accord with the evidence which I accept. Most of the representations relied upon by the plaintiff were said to have been made by his mother but he also alleges that some were made in his father's presence and that the last was made by the father. I have no doubt that when it came to making arrangements within the family about what child should be allocated to do what work or for what remuneration or how property was to be dealt with, Mrs Winnie Consolaro acted with complete authority for herself and her husband. The evidence is that she would discuss matters with her husband and that he would agree with her decision and that she would act accordingly. The probabilities are, overwhelmingly, that any promises which she made to Ross Consolaro, or to other members of the family, were made with Mr Phillip Consolaro's knowledge and approval. The whole family arrangements were carried out on the basis that decisions of this kind were for her to make and were invariably approved or ratified by Mr Phillip Consolaro, if only tacitly.

18 By the statement of claim the plaintiff sets out the basis upon which he claims equitable relief, namely:

1. Between 1966 and October 1993 the Defendant and also the Defendant's wife at intervals of generally not more than three-monthly, persistently represented to the plaintiff that if the plaintiff carried out and permitted the Specified Activities the plaintiff would in consideration thereof receive an interest in the said Land as beneficial co-owner and such beneficial interest as co-owner would be registered in the name of the plaintiff without delay, in the alternative, following the decease of the Defendant (the representations).

(i) the carrying out of husbandry works on the Land, and on Deepdale and on the Home Block, without any or only nominal remuneration;

(ii) the carrying out of Fuel Depot activities for the Defendant and his wife without any or only nominal remuneration;

(iii) permitting the Defendant and his wife to take certain of his weekly wages;

(iv) permitting the Defendant and his wife to receive the income arising from various commercial activities undertaken by the plaintiff for his own benefit.

19 Then follow a series of particulars of the husbandry works, the fuel depot activities and the taking of weekly wages. The particulars of the commercial activities referred to under 6(iv) were:

(i) currant production and all necessary vine husbandry including the meeting of all costs thereof for a period of three years, and

(ii) wine grape production and all necessary vine husbandry including the meeting of all costs thereof for a period of three years, and

(iii) the cartage of the Defendant's grapes to market between 1966 and October 1993.

1. Further, between 1966 and October 1993 the Defendant and also Defendant's wife, actively and persistently repeated the said representations and thereby encouraged, and continued to encourage, the plaintiff to carry out and to permit all of the Specified Activities.
2. In reliance upon the representations and their active and persistent repetition the plaintiff did carry out and permit the said Specified Activities to the plaintiff's substantial detriment:-

(i) the loss of remuneration or adequate remuneration for all husbandry works whether on the Land, the Home Block, or Deepdale

(ii) the loss of the majority of the plaintiff's wages earned externally between 1965 and 1970, and ultimately of the plaintiff's own external employment with Swan Settlers Co-operative

(iii) the loss of the income from the commercial activities carried out by the plaintiff in respect of currants and grapes

(iv) the loss of the opportunity to pursue the plaintiff's own commercial interests, including the development of the plaintiff's own cartage and transport business, mechanical business and the development of the plaintiff's own fruit, vegetable and grape activities, and employment with the RAC as a patrolman

(v) the loss of the opportunity to develop the plaintiff's own asset base by reason of the above.

1. Between 1966 and October 1993 the continued representations of the Defendant and also the Defendant's wife were made in the knowledge by the Defendant and his wife that the Specified Activities:

(i) had been and were continuing to be undertaken or permitted by plaintiff in consideration of and in reliance upon the representations of the Defendant and his wife, and

(ii) were to the substantial detriment of the plaintiff.

1. Despite the plaintiff carrying out and permitting the said Specified Activities the Defendant has denied and continues to deny the existence of the said interest as beneficial co-owner, or of any interest, of the plaintiff in the said Land.

20 In the statement of claim the 'Land' had previously been identified as meaning the Walyunga property and the 'Home Block' was identified as referring to the Vine Street property. Particulars of the allegations of the activities were enlarged upon in further particulars, requested and delivered, but which need not here be mentioned.

21 By the amended defence filed on his behalf Mr Phillip Consolaro says, with respect to the Walyunga land, that:

(b) he conducts the business of a farm, and a sandpit and soils supplier as a sole trader from that property with assistance from his son-in-law, Mr Robert Gordon, and grandson, Mr Glenn Gordon;

(c) the farm business on that land involves raising of cattle and cropping hay and the soils business comprises the sale of sand;

(d) previously, and until the death of Mrs Winnie Consolaro, he conducted the farming and soils business from that property with his wife, trading under the business names of 'P Consolaro' or 'PJ & WP Consolaro' at various times.

22 With respect to the Vine Street property Mr Phillip Consolaro, in his defence, pleads that:

(a) he and Mrs Winnie Consolaro were the transferors of a portion of the Home Block which included the fuel depot;

(b) except that in about November 1993 he executed a transfer of portion of the Home Block to the plaintiff, he does not know nor admit any agreement or understanding pursuant to which the plaintiff acquired that part of the Home Block and that this transfer itself was expressed to be for natural love and affection and not for monetary consideration;

(c) that the fuel depot business on the Vine Street property was at all material times carried on by Phillip and Winnie Consolaro in partnership until her death, and by Phillip Consolaro until about 1995 when, as a consequence of an acrimonious breakdown in the relationship between father and son (the plaintiff), the defendant was directed not to return to that part of the home block and has never been allowed on those premises since and that from that time on the fuel depot business ceased.

23 As to the allegations made by the plaintiff concerning representations that he would acquire an interest in the Walyunga property, Mr Phillip Consolaro:

• denies all the allegations;
• admits that his son Ross Consolaro intermittently carried out or permitted the Specified Activities;
• says that none of the Specified Activities was conducted or permitted as a consequence upon any reliance upon the making of the representations by the defendant or Mrs Winnie Consolaro (the making of which is expressly denied);
• admits that the plaintiff did conduct or permit 'commercial activities', 'husbandry works', and 'fuel depot activities' as generically particularised but denies the full extent thereof;
• pleads that the plaintiff was variously paid a fair or reasonable remuneration of these activities having regard to the relationship between the parties, as Italian parents and child, as pleaded further below or, alternatively, that they were conducted or permitted by the plaintiff on the basis that the plaintiff and the defendant and Winnie Consolaro (during her lifetime) were Italian parents and child as a consequence of such a relationship.

24 By his pleading Mr Phillip Consolaro further alleges:

1. The parties are of Italian descent and of traditional Italian upbringing.
2. It was the common understanding of the parties, as a consequence of their tradition and upbringing, and consistent with the same, that so far as reasonable or possible the children of the family (ie the plaintiff and his siblings) would be treated more or less equally taking into account the following factors:

(1) their respective levels of education and general well being.

(2) the filial relationship of the children with their parents.

(3) any benefits or advantages conferred upon the children during the life of their parents.

1. The defendant (and Winnie during her life time) did receive money for board and lodging from the plaintiff as they did from the plaintiff's siblings (but denies the full extent or quantity thereof as pleaded) such payment being again consistent with the filial relationship between those siblings and their parents Winnie and the defendant.

1. As to the plaintiff's level of education and general well being the defendant pleads as follows:

(1) From in or about 1963 (the plaintiff was then 15 years of age) the plaintiff was unemployed or working for Robert Gordon. He commenced an apprenticeship in or about 1965 which he completed in or about 1971 and had employment thereafter with various third parties.

(2) In or about 1975 the plaintiff commenced business on his own as a cartage contractor.

(3) The plaintiff is financially secure.

1. The Specified Activities were conducted or permitted by the plaintiff as a consequence not of the representations (the making of which is expressly denied) but rather was a contribution to the welfare of the family generally and as a consequence of the filial relationship between the plaintiff and his parents Winnie and the defendant.
2. As to the benefits or advantages conferred upon the children during the life of their parents the defendant refers to the following in respect of the plaintiff:

(1) The plaintiff received during the lifetime of the defendant an interest in the said Home Block for natural love and affection rather than by payment of any monetary detriment or consideration.

(2) The plaintiff has received income from the operation of the fuel depot and the sand pit businesses and further has been remunerated for his conduct of the Specified Activities.

(3) Prior to 1976 the plaintiff enjoyed board and lodging.

(4) The plaintiff has enjoyed free fuel and the use of the defendant's vehicles.

1. As to the filial relationship between the plaintiff and the defendant the defendant pleads as follows:

(1) Notwithstanding that the defendant treated the plaintiff generally as would be expected of a filial Italian parent in relation to his son, relationships between the two deteriorated to the extent that in 1995, whereupon, as a consequence of an acrimonious breakdown in relationship between the parties, the defendant was directed not to return to the part of the Home Block transferred to the plaintiff. He has never been permitted to enter upon the same since then and the fuel depot business has ceased.

(2) The plaintiff has instituted various Supreme Court proceedings against the defendant further particular[s] of which are well known to the parties.

(3) The parties are in acrimonious dispute generally concerning the plaintiff's conduct of the soils business.

1. In the premises, the plaintiff has been treated fairly and reasonably by the defendant having regard to the relationship between the two of them as Italian parent and child and is entitled to no further benefit from the defendant.

In the alternative if the defendant or Winnie made the representations as alleged (which is specifically denied) and if they were relied upon by the plaintiff (which is also specifically denied) then the defendant pleads further as follows:

1. The representations were made in the context of familial or domestic relationship vis as parents and child and not intended to create legally binding obligations as between them.
2. The conduct of the plaintiff in conducting or permitting the Specified Activities/husbandry works/fuel depot activities/ commercial activities (as the case may be) was not as a consequence of reliance upon the making of the representations nor was such conduct intended to form the basis for any legally binding relationships as between the plaintiff and the defendant (and Winnie during her lifetime) but was conducted or permitted (as the case may be) pursuant to and consequential upon the filial relationship between those parties as traditional Italian parents and child.

1. In the context of a familial or domestic relationship, in any event it would have been implied reasonably expected and understood between the parties as Italian parents and child that the fulfilment of such promise to confer an interest in the said Land was:

(1) based upon the underlying assumption that the said parties would at all material times continue to enjoy close familial and filial ties.

(2) implicitly conditional upon the continuation of such filial or close relationship.

1. Consequential upon the matters pleaded above, it was the common implied understanding of the parties, as a consequence of their relationship as traditional Italian parent and child, that if such relationship deteriorated or ceased then the defendant as parent would not reasonably have been expected to fulfil such promise.
2. The filial relationship between the parties ceased acrimoniously under the circumstances pleaded in paragraph 8(g) hereof.
3. In the premises, the plaintiff enjoys no entitlement to an interest in the said Land.

and otherwise denies each and all of the plaintiff's allegations and claims.

25 Sadly, the depth of feeling and reciprocal animosity between father and son has only increased since a major argument between them during 1995. Now all members of the family have been drawn into this controversy, sides have been taken, old enmities and prejudices have been revived and inflamed and there are no neutral corners from which even members of the third generation of the family can provide a dispassionate or objective account of events.

26 The plaintiff, Ross Consolaro, and his wife, Judith, have maintained that at all times they attempted to respect the wishes of the plaintiff's mother and father, to follow their directions and to assist in the operation of the family enterprise at considerable cost to themselves in the sense of other opportunities foregone and by sharing their wages and the products of their efforts within the family operations, essentially by contributing the moneys or the products of their activities to Mrs Winnie Consolaro and accepting, in return, such small allowances as she in her discretion saw fit to provide.

27 Although, at times, it displayed many different facets the principal features of the case for the defence were that Ross Consolaro has exaggerated the extent of the work or the contribution which he made to the family activities, that the work which he did perform resulted in fair payment to him at the time and that for considerable periods he was engaged in his own commercial activities which produced income entirely to his own account and as a result of which he was seldom available to perform the work which was expected of him as his share in the family activities. In particular, and as a great bone of contention, his father, Mr Phillip Consolaro is utterly convinced that Ross Consolaro tricked him and cheated him over the building and acquisition of Ross Consolaro's house on the Vine Street property and obtained by deceit a benefit to which he was never entitled. This is, I am satisfied, a thoroughly unfounded allegation but it is deeply and conscientiously believed by Mr Phillip Consolaro who, in his advanced age, is showing signs of obsession about this and other issues and whose evidence in this regard was quite incompatible with the objective facts.

28 Since 1995 Mr Phillip Consolaro has been living at Walyunga under the close care of his daughter, Mrs Norma Gordon. She too is very much opposed to the plaintiff's claim and repeats many of the criticisms laid against her brother by her father. In giving evidence it was starkly apparent that Mrs Gordon had a very great antipathy towards her brother, Ross Consolaro, and would not even refer to him by name, persistently describing him as 'the plaintiff' and showing an attitude of hostility and depersonalisation which was unmistakable. Mrs Gail Rudez was also opposed to the plaintiff's claim but was less ill-disposed to her elder brother. The younger brother, Rodney Consolaro, who had obviously had many loud and bitter arguments with the plaintiff over the years and, on one occasion, outside the courtroom during the trial, was more measured and objective. However, he took the view that it was disrespectful towards their father for Ross Consolaro to be making this claim or bringing this action and that proper filial obligation required Ross Consolaro to respect his father and accept with proper deference any decision about the disposition of the father's property which he may choose to make.

29 One can understand and respect this attitude of Rodney Consolaro but I am satisfied, from seeing him give evidence and being cross-examined, that Mr Phillip Consolaro, while harbouring very strong and firm opinions, is not objective, does not have a real appreciation of past events, has mistaken views in particular about Ross Consolaro's alleged misconduct in building the home on Vine Street, in relation to lodging caveats on that land and on the Walyunga land and in relation to other matters concerning the Walyunga property which are yet to be mentioned. Mr Philip Consolaro has for more than 12 years been closely dependent and constantly in the company of his daughter, Mrs Norma Gordon, whose attitude to the plaintiff has already been described. There is every reason to infer that Mr Phillip Consolaro's continued animosity towards his son, Ross Consolaro, has been fed and sustained by Norma Gordon and that, since her mother's death, Norma Gordon has on several occasions attempted to exercise a dominant role in the management of the family's financial and property transactions which had previously been exercised so firmly by their late mother. In this situation, the prospects of achieving paternal objectivity or securing a fair realisation of the historical facts and merits of Ross Consolaro's claims are fragile and insignificant.

30 The situation has been made worse by earlier litigation and legal disputes between Ross Consolaro and his father. These relate to:

(a) the lodging of a caveat on behalf of Ross and Judith Consolaro to protect their interest for their house and land, part of the Vine Street block;

(b) an attempt by the father, Mr Phillip Consolaro, to sell to third parties the whole of the Vine Street property, including the land upon which Ross and Judith Consolaro's home stood without their knowledge or permission;

(c) litigation concerning the due administration of Mrs Winnie Consolaro's estate brought by Ross Consolaro over the transfer of all of the proceeds of sale of the Bullsbrook delicatessen property to Mrs Norma Gordon;

(d) an action for damages brought by Ross Consolaro against his father because in 1995 the latter summarily evicted him from the Walyunga property where he was conducting commercial sandpit operations, resulting in the payment of agreed damages of $100,000 by the defendant to the plaintiff;

(e) the lodgement by the plaintiff of a further caveat over the Walyunga land to protect the claim advanced in this litigation.

31 Those various disputes are not directly determinative of any of the issues in this case but they bear very greatly upon the credit of the parties, particularly of the defendant.

Outline of land holdings from title information

32 The history of the Consolaro family dealings in land and the transactions relevant to this action can be taken from the details of registered dealings with those lands. It is:

(a) On 14 February 1938 Mr Phillip Consolaro lodged a caveat against the title to the Vine Street land in view of his claim to an estate in fee simple to the land as purchaser by virtue of an agreement dated 11 February 1938 made between Mr William McDonald as vendor and himself as purchaser in respect of the whole of the land then comprised in Crown lease number 308/1920 (defendant's additional documents folio 19).

The land at Vine Street then comprising 10 acres was the subject of a lease under the Agricultural Lands Purchase Act 1909 to Mr William McDonald of 5 March 1920 (defendant's document 20).

(b) On 21 May 1946 Mr Phillip Consolaro was registered as the sole proprietor of an estate in fee simple in the Vine Street land (certificate of title vol 1091 folio 56). On 24 April 1967 that land was transferred into the names of Phillip Jim Consolaro and Winnie Patricia Consolaro as joint tenants. On 13 May 1994 the land was registered in the sole name of Phillip James Consolaro by survivorship following the death of Winnie Patricia Consolaro on 17 October 1993.

A list of encumbrances to that certificate of title shows that it was mortgaged to Mr McDonald in 1920 but that that mortgage was later discharged. It was then mortgaged to the R&I Bank in 1949 and that mortgage was later discharged. It was mortgaged to the ES&A Bank in 1950 and that mortgage was later discharged. It was mortgaged to the ANZ Bank in 1967 and that mortgage was later discharged. It was mortgaged to the National Bank of Australia in 1977 and that mortgage was later discharged. An encumbrance involving a right of entry was granted to the Metropolitan Water Authority in May 1984 in respect of a margin of the land along the border with Great Northern Highway.

(c) Caveat number F243216, being the caveat lodged by Ross and Judith Consolaro was noted on the register on 8 July 1993 and this was withdrawn on 13 May 1994.

(d) A new certificate of title, vol 2000 folio 812, was issued on 13 May 1994 in respect of the 4,700 sqm lot on the corner of Great Northern Highway and Vine Street to Ross and Judith Consolaro. This was subject to the right of entry to the Metropolitan Water Authority which had been previously registered in May 1984.

33 The balance of the land at Vine Street, excluding the area subdivided for Ross and Judith became the subject of a further certificate of title, vol 2000 folio 83, which was also subject to the drainage rights in favour of the Metropolitan Water Authority for the remaining frontage to Great Northern Highway. That land was transferred to third party purchasers, Messrs JM, HJ and N Glovata as tenants in common in equal shares on 7 October 1996.

34 Phillip and Winnie Consolaro purchased the land at Walyunga in February 1996 for slightly more than £8,000 from Messrs WR and SW Martyn. The land comprised portion of each of Swan Locations 91, 1312, 1339 and 1342, being lot 4 on deposited plan 7892 (see transfer, defendant's documents folio 24). Mr and Mrs Consolaro were registered as the proprietors of that land as joint tenants on 10 March 1966 (certificate of title vol 1309 folio 058, defendant's documents 25). They mortgaged that land to the ANZ Bank in 1972 and that mortgage was later discharged. They mortgaged it again to the National Bank of Australia Ltd in 1974 and that was also later discharged. In 1980 it was mortgaged to the R&I Bank and that also was later discharged. A portion of the land was resumed under the Public Works Act 1902 (WA) in 1980 and an area of 2.0905 hectares was excised on 27 March 1992 and transferred into the names of Louise Hope Cepo and Graham David Cepo as joint tenants (see certificate of title vol 1927 folio 634, defendant's document folio 26). This was the land which Mr Phillip Consolaro says he gave to his niece Louise, although obviously the gift was by himself and Winnie Consolaro.

35 The whole of the Walyunga land with the exception of the area given to Louise was transferred into the sole name of Phillip James Consolaro on 13 May 1994 by survivorship following the death of his wife (agreed volume of documents book 3 folio 806 - 7).

36 In September 1979 Phillip James Consolaro and Winnie Patricia Consolaro purchased Swan Location 1638 for the sum of $50,136.06 (see transfer, defendant's documents folio 27). They became registered as the joint proprietors of that land but transferred it to third party purchasers on 3 September 1988 (certificate of title vol 1572 folio 645, defendant's documents folio 28).

37 Mr Ross Consolaro described in evidence how he became concerned about the security of his home and tenure on the Vine Street block before the subdivision had eventually been accomplished when he realised that there was a possibility that his mother and father might sell all the land to an oil company for the establishment of a service station or other retail outlet. It was this, according to him, which prompted him to have to lodge a caveat claiming an interest in the land in July 1993.

38 A fuel depot had existed on the site facing Vine Street for many years. It seems that in 1982 Phillip and Winnie Consolaro applied to the oil company, Ampol Ltd, for an upgrading of the refuelling facilities and that the oil company proposed the removal of two existing pumps and the installation of two new 10,000 -litre and the alteration of the driveway. The oil company wrote to the shire council in that respect inviting its approval for the proposed work on 8 December 1982 (agreed documents vol 3 folio 621). That elicited an acknowledgement from the Swan shire clerk and a request for payment of the fee for a development application (folio 622) but nothing else appears to have transpired at that date.

39 However, the fate of the fuel depot again came up for consideration in 1992 or 1993. Mr Mark Quackenbush gave evidence and provided a statement (exhibit 22) in which he explained that in the 1990s he was the managing director of Omex Petroleum Pty Ltd and that some time in 1992 or 1993 he visited premises at the corner of Vine Street and Great Northern Highway where there was an operating Ampol fuel depot and several bowsers. His purpose in making the unannounced visit was to inquire about the possibility of leasing the premises for the business of Omex Petroleum. He spoke to a man, whom he does not now recall, and as a result was invited to come again when other members of the family would be present. About a week later he made another visit and met with an elderly gentleman, an older woman, his wife, and a younger man who was their older son. The discussion concerned Mr Quackenbush's interest in the premises and what parts of the buildings and trees on the site could be demolished for his purposes He recalls that the lady was interested in the trees which would have to be removed and appeared to be content about that. At this second visit Mr Quackenbush recalls no discussion about the ownership of the premises or any part of it containing the fuel depot. He assumed that it was a family farm without any specific knowledge of the ownership. Nothing was said to him to suggest that the younger man had any ownership of the part of the premises containing the fuel depot.

40 The second visit concluded on the footing that the family would consider Mr Quackenbush's proposition and would contact him, but he did not hear from them again. That was his last visit.

41 In his oral evidence Mr Quackenbush said that at the second meeting the older man was interested in the proposal and the older lady was very interested. He was unable to say when the meeting took place but he made reference to a note of a letter of 18 June 1992 dealing with the matter. However, other evidence suggests that the meeting occurred in 1993 and I consider that the later date is more probable.

42 It was the apparent readiness of his parents to consider the lease or sale of portion of Vine Street which concerned Ross Consolaro and, not unreasonably, led him to be sensitive about the risk to his family home posed by the situation which then existed before any approved subdivision of his land. By then he had cause to doubt that his parents would make good on their promises and the passage of the years from 1976 without anything being done to grant him a secure interest in the land would, no doubt, have underlined the tenuous nature of his position.

43 There was the caveat lodged against the Vine Street property by Ross and Judith Consolaro claiming an interest in the land to protect the portion which they had purchased from Phillip and Winnie Consolaro and upon which they had constructed their home. This caveat is dated 8 July 1993 (F243216C) supported by the statutory declaration of 8 July 1993.

44 The first of two caveats lodged by Ross Consolaro over the Walyunga land is dated 14 September 1995 (F981493C, agreed documents vol 3 folio 637). By this caveat Ross claimed an interest in the land in the form of a right to take sand and an accompanying right to enter the land for the removal of the sand. This was said to derive from an oral agreement made between Ross Consolaro and his father, later evidenced in writing, conferring a right to take sand from the land during the father's lifetime and thereafter. In the statutory declaration of 21 September 1995 in support of that caveat Ross Consolaro declared (see agreed documents folio 638):

1. I claim an interest in the Land, being the right to take sand and for the purpose to enter upon the Land and remove it.
2. On or about 24 October 1993 I made an oral agreement with Phillip James Consolaro ('Phillip') the registered proprietor of the Land, whereby the registered proprietor granted me the right to operate a business selling and removing sand from the Land and to enter upon the Land at any time to remove sand in consideration of paying $1 per cubic metre of the sand sold ('the agreement') to the registered proprietor.
3. In or about January 1994 Phillip offered to acknowledge in writing the existence of the agreement. Now produced and shown to me and marked with the letter 'A' is a true copy of the said writing.

45 Another caveat was lodged by Ross Consolaro over the Walyunga land on 5 November 2001 (H920394C, agreed volume of documents vol 3 page 612). That claimed an estate or interest in the land by virtue of an alleged agreement between Phillip James Consolaro and the plaintiff whereby, if the caveator worked the land, he would receive co-ownership asserting that the caveator had performed such obligation in the terms of the statutory declaration lodged therewith. That declaration was a declaration by Mr Ross Consolaro of 2 November 2001 (agreed documents vol 3 folio 610) by which he declared:

1. Between 1966 and 1996 and repeatedly in between those times the registered proprietors of the said land, (originally my father and mother, and since my mother's decease, my father alone) undertook to me that if I worked on the said land and carried out his instructions in that respect, I would be a co-owner of the land with him, with such co-ownership interest to be transferred to me upon his decease.
2. I did and have so worked on the said land, largely in lieu of all other forms of help (family or otherwise) on the farm, and more or less continuously, and in reliance upon such undertaking by the registered proprietor(s).
3. This work included almost daily wood yard help, mechanical work, machinery operator work, vineyard work and stock and fencing work and all ordinary husbandry associated with the farm and cartage for the registered proprietors of fuel and sand.
4. Additionally the registered proprietors during a period of approximately nine years (1966 to 1975) further repeatedly undertook that if I committed part of my wages first as an apprentice and then afterwards as contractor and employee, to be paid to the proprietor(s), that again I would be entitled to be a co-owner of the said property.
5. Between those years (1966 - 1975) I did so permit part of my wages or pay part of my wages to the registered proprietor(s) in reliance upon and consideration of their undertaking that I would be co-owner.
6. Unhappy differences have now arisen between myself and the registered proprietor, and I place this caveat as beneficial co-owner of the land.

Norma Gordon - Dispute over the administration of Winnie Consolaro's estate

46 As previously noted, when Mrs Norma Gordon, her husband and family left the house in which they had been living for some years at the Vine Street property they moved to Bullsbrook. The evidence is that Mrs Winnie Consolaro purchased a property in the Bullsbrook township at which there was a house for the Gordons to live. The property was registered solely in the name of Winnie Consolaro and the evidence is that Mrs Winnie Consolaro outlaid $40,000 or thereabouts for the purchase. The Gordons moved to that home and have lived there since. From there or nearby at Bullsbrook Mrs Norma Gordon operated a delicatessen supplying a variety of merchandise in partnership with her mother.

47 The details of the financial arrangements for the repayment, if that was what was intended, of the money outlaid by Mrs Winnie Consolaro for the purchase of the Bullsbrook property, or the payment to her of her share of the profits of the Bullsbrook shop were not examined in this trial. However, the financial accounts for the affairs of Phillip and Winnie Consolaro up until Winnie's death in 1993 show only two references to income from the Bullsbrook shop. The accounts for that business, which are also in evidence, indicate that it was always trading at a loss yet it seems most improbable that that was so because, if it were, then surely the business would have been closed. There is nothing to indicate any other source of income or capital which would or could have been used to subsidise trading losses for a period of years for that business and I therefore cannot accept that the accounts give a completely accurate description of the position.

48 Be that as it may, when it came to the winding up of Mrs Winnie Consolaro's estate the land at Bullsbrook constituted an asset registered in the name of the deceased and therefore was, presumptively, part of her estate. Whether there was then any significant equity in the delicatessen business partnership by the deceased is another question but as it is impossible to ascertain, it need not be fully pursued.

49 It is the case however that Mr Phillip Consolaro was disposed to treat the Bullsbrook property as being the property of Norma Gordon, notwithstanding that it was registered in the deceased Winnie Consolaro's name. Any obligation for repayment of the purchase money was not investigated. Mr Phillip Consolaro therefore sold that asset and the delicatessen business and proposed to distribute the whole proceeds to Mrs Norma Gordon, without any recoupment for the estate. It is to be recalled that under Winnie Consolaro's will the four children as residuary beneficiaries were entitled to share equally in the residuary estate, subject to the life interest in favour of their father. Mr Ross Consolaro maintained that the Bullsbrook property was an estate asset and should be treated as part of the residue of his mother's estate and ultimately be divisible equally between the four children. This resulted in major disagreement with his father, and no doubt with Norma, and accordingly an action was commenced by Ross for due administration of the estate and, in particular, for a determination that the Bullsbrook property was part of the estate property. That action was ultimately compromised by payment of $20,000 to Ross Consolaro in satisfaction of any share which he might have in his mother's estate. Thereafter the proceeds of the sale of Bullsbrook were treated as belonging to Norma and ultimately transferred to her by her father as executor. It is not difficult to see how such an experience would have engendered enmity between the older sister and older brother.

The saga of Ross and Judith's home at Vine Street

50 The old home in which Ross and Judith Consolaro and their children had been living from 1970 at Vine Street was obviously unsuitable. Mr Ross Consolaro, not unnaturally, desired to have an adequate home for himself, his wife and his family and asked his mother and father whether or not they would agree to let him build on a suitable area of the Vine Street land to make such a home. According to him, they readily agreed and attention turned to the choice of an area for the construction of the house. According to the plaintiff, whose evidence in this regard I accept, he, and his mother and father, together chose an area on the land, stepped out the boundaries marking the corners and agreed that Ross should be allowed to build his home there but insisted that he should pay the proper market value for the land to be used, which would then become his own. According to Mr Ross Consolaro, the area chosen was relatively close to the parents' home but fronting Vine Street. The reason for the proximity was so that the occupants of the house would conveniently be able to serve at the fuel depot, close nearby, and be within easy reach of the parents in their own home. Ross and Judith Consolaro both said that they would have preferred to have the house built further away to the west but that Ross' parents were insistent that the house be closer to ensure constant service of the fuel depot. According to Mr Ross Consolaro, advice was taken and agreement between mother, father and son was reached on a figure of $3,000 as representing the market value of the proposed block of, as yet, un-subdivided land. Mr Ross Consolaro says that he gave a cheque for the $3,000 to his mother and father, which they duly banked and, eventually, at his insistence, they provided him with a receipt for the payment of this money for the purchase of that land.

51 According to Mr Ross Consolaro, approaches were then made to obtain a building licence for a house which was designed and constructed by a builder, Mr Aloi. Construction began with the clearing of the area and the laying of a pad followed by the rest of the building. According to Mr Ross Consolaro, the construction of the building took somewhere between eight and 12 months and was commenced in about May 1976, just before Phillip and Winnie Consolaro left on their first overseas trip to America and Europe when they were away for about three or four months. According to him, the work had commenced before the departure on vacation of his mother and father and the foundation pad and location of the house was in place and obvious before they left. Again, according to Mr Ross Consolaro, his mother and father returned before the house was completed and it was later finished and his family moved into the new home.

52 The story recounted by Mr Phillip Consolaro and endorsed by Norma Gordon and her husband, Robert Gordon, was markedly different. According to them, Mr Phillip Consolaro, while willing to allow Mr Ross Consolaro to build on the Vine Street property, never agreed to sell any part of the property to Mr Ross Consolaro and never accepted any money for the purchase of a house block. According to Mr Phillip Consolaro, Ross was free to build on the Vine Street property but, if he did so, the house was to be well to the west, further down Vine Street, and some distance away from the mother and father's home and the fuel depot. Again, according to these three witnesses, no work which disclosed the intended site of Ross Consolaro's new home had been commenced before Phillip and Winnie Consolaro left on their overseas trip in May or June 1976 but then, in their absence, Ross Consolaro made arrangements to build the house in its present location where he knew his father did not wish it to be and had all the construction commenced and proceeded to a point where it could not be reversed before the parents came home. According to Mr Phillip Consolaro, he returned from his holiday to find a completed house in an area which he had never agreed upon and which was contrary to the arrangement which he made with his son. According to him, there was a heated argument about Ross Consolaro's conduct and this was never resolved and continued as a serious bone of contention between father and son from then on.

53 The builder, Mr Aloi, gave evidence about the construction of Ross' home, produced his account and confirmed that the construction had begun before the departure of Mr and Mrs Phillip Consolaro overseas and with the apparent approval of them. In fact, according to Mr Aloi, the application for the building licence had to be signed by Mr Phillip Consolaro and was signed and duly submitted before any work began. He too maintained that the construction work took somewhere between eight and 12 months and that as far as he was aware there was no controversy about the location of the building.

54 Then followed a long period of unsuccessful applications by the Consolaro family for subdivisional approval to allow the area upon which Ross' home had actually been built to be created as a separate lot, subdivided and become the subject of a separate certificate of title. The evidence established that the Shire of Swan had a policy which disapproved of the subdivision of vineyard lots in the Swan Valley into residential size lots because of the risk that approvals might lead to a change in the complexion and use of that part of the valley. Because of this policy a number of applications for subdivisional approval were refused and the position remained that, despite the arrangements which Ross maintained had led to an agreement for him to purchase land from his mother and father, and for the house to be built upon it, the land subdivided and transferred to him, he remained in occupation of the house and land which he had paid for without any secure title.

55 Because of this, after obtaining his own legal advice, he eventually lodged the caveat over the Vine Street property, claiming an interest as purchaser and proprietor in the area of land upon which the house had been built and which had been marked out. That caveat was lodged in July 1993 and a copy of it was found among Winnie Consolaro's papers after her death. Phillip Consolaro claimed that he never knew of the existence of this caveat, that he was appalled to find out that his son would have been advancing such a claim, and that it was part of Ross Consolaro's attempt to cheat him out of the land. He absolutely denied that he had agreed to transfer part of the Vine Street block to Ross and Judith Consolaro for their home or that Ross Consolaro had paid an agreed price for the land.

56 Later, Phillip Consolaro decided to leave Vine Street and go and live with the Gordons at Bullsbrook. He determined to sell the Vine Street property and attempted to do so without recognising any right of ownership or other interest by Ross and Judith Consolaro and their family, who continued to live in what they had regarded as their family home since 1976. The caveat was an obstacle to such a sale but only created more resentment and argument between father and son. A few years before, in 1990, with the intervention of a local politician, and because of the special circumstances, the Shire of Swan approved the subdivision of the Vine Street property which excised an area of approximately half a hectare on which stood Ross and Judith Consolaro's home and also the fuel depot. Nevertheless there was still a delay in acting upon it. In 1994 the subdivision went through, a title for that land was issued in Ross Consolaro's name and then Phillip Consolaro completed the sale of all the surrounding land to third parties in 1996.

57 In this action Mr Phillip Consolaro maintained, against all the evidence, that there had never been an agreement to sell any part of the Vine Street property to Ross and Judith Consolaro. He insisted that no payment had ever been made by Ross or Judith Consolaro to purchase any area of the Vine Street property. He returned again and again to his theme that Ross had dishonestly and surreptitiously built on the Vine Street property in an area in which he knew his father had not permitted him to build while his parents were away on vacation and that this was part of Ross' attempts to cheat him out of the land. He saw the lodgement of the caveat to protect Ross and Judith's claim to the land before the subdivision was approved as another secret and dishonourable act and he took it as a matter of great affront that his son would lodge a caveat against that land and assert such a claim. Nothing could swerve Mr Phillip Consolaro from this view and, at other times in his cross-examination, when lost for an answer, he came back to it again and again.

58 At an early point of this trial counsel for the plaintiff sought to tender as exhibits what were asserted to be agreed bundles of correspondence and other relevant documents which could be treated, for the purposes of the action, as authentic and, subject to any evidence to the contrary in the case, as representing what they purported to represent. However, counsel for the defendant objected to the reception of all the documents on the basis that the authenticity of one document in particular was disputed. The document in question was folio 263 of book 1 of the documents and was a copy of a letter apparently in the handwriting of the deceased, Winnie Consolaro, and signed by the defendant Mr Phillip Consolaro dated 6 May 1976, being a receipt given by them to Ross Consolaro for payment in full for the building site on lot 2611 Herne Hill. Accordingly, the documents were accepted, except for that particular letter, as being authentic, the importance being that counsel for the defendant, on express instructions from his solicitors and client, and conscious of the possible significance of the alleged document and of the denial of its authenticity, maintained that that receipt was not genuine or authentic. This position was, of course, consistent with the plea in the defence denying any payment for that land and expressly asserting that it had been transferred as a gift.

59 Later the plaintiff proved in evidence a bank deposit slip dated 14 April 1976 (TD 39-D3) showing a deposit to the credit of the account PJ and WP Consolaro in the National Bank of Australasia Ltd on that date of amount of $3,743. The details on the deposit slip showed that the deposit was a composite of six payments including an amount of $3,000 from RJ and JM Consolaro for building. The deposit slip and the notes on it were written in the handwriting of Mrs Winnie Consolaro and there are some words obliterated which appear to include the words 'for house'. Furthermore, the plaintiff also proved as exhibit 21 the original of a manuscript receipt signed by the defendant, Mr P Consolaro and Mrs Winnie Consolaro dated 16 May 1996 which reads:

Dear Sir

Mr Ross J Consolaro has paid me in full for building site on lot 2611 Herne Hill.

P Consolaro

Mrs W Consolaro

which Mr Ross Consolaro said was signed on the kitchen table at Vine Street by his mother and father at his request.

60 I therefore find that the account given by Mr Ross Consolaro that he and his wife purchased a defined area of land at Vine Street from his mother and father for the sum of $3,000 to be set aside and subdivided for the building of their family home is true and that this was always known to his mother and father no matter how much, in recent years, his father may have repressed that recollection or been persuaded out of it by the prejudice of himself or others. The persistence in the denial of these facts by the defendant and by Norma Gordon on an issue of such significance reflects very severely upon their credit and illustrates just how significant persistence in a false allegation has been in creating and perpetuating bitterness between those parties on this issue.

61 There is further contemporary evidence to show that Phillip and Winnie Consolaro were aware that Ross and Judith Consolaro had agreed to purchase an area of the Vine Street property for the construction of their home and were proceeding as discussed with the defendant's agreement. This comes in the form of:

(a) copies of entries in the Australian passport issued to Mr P Consolaro on 22 April 1976 in preparation for the trip that he and Mrs Winnie Consolaro made to the United States and Europe (defendant's additional documents folio 18). This shows that a visa to enter the United States was granted on 26 April 1976, that the bearer entered the United Kingdom on 21 June 1976 and 22 July 1976 and departed the United Kingdom on 27 June 1976 and 5 August 1976, landed in Belgium on 27 June 1976, entered the United Kingdom on 17 September 1976, departed the United Kingdom on 20 September 1976, entered Hungary in November 1976 and re-entered Australia at Fremantle on 12 October 1976. From these travel records it is obvious that Mr Phillip Consolaro left Australia after the work on Ross and Judith Consolaro's house at Vine Street had commenced and returned well before it was completed;

(b) a building licence for the construction of the home for Ross Consolaro on Vine Street was issued on about 31 July 1976 (agreed volume of documents vol 3 folio 802);

(c) a letter from Mr Carl Aloi of Civa Design & Construction Pty Ltd, building contractors, dated 26 April 1977, being an account for the final payments due on the completion of the house for Mr Ross Consolaro (this showed that the contracted price was $25,200 plus various extras);

(d) a letter from the State Planning Commission to Mr PJ Consolaro of 4 May 1988 (agreed documents vol 1 folio 47) acknowledging receipt of an application for proposed subdivision of the Vine Street property dated 19 April 1988 and requiring the submission of scaled plans of the proposed lot;

(e) a letter of 24 November 1988 from the State Planning Commission to the shire clerk of the Shire of Swan inviting the shire's comments on the proposed application for subdivision of the Vine Street property with a sketch annexed (vol 3 folios 754 - 756). This document showed that the area sought to be subdivided was fronting Vine Street to the west of Great Northern Highway and did not include the Great Northern Highway corner;

(f) an application for approval of a proposed plan of subdivision of the land at Vine Street to allow the creation of a lot as a residence for Mr RJ Consolaro. This appears at vol 3 of the agreed documents, folio 626 and is signed on 22 September 1990 by Mr P Consolaro and Mrs W Consolaro and was lodged with the Department of Planning and Urban Development on 25 September 1990;

(g) another letter from the Department of Planning and Urban Development to the shire clerk of the Shire of Swan dated 3 October 1990 inviting comment upon the proposed plan of subdivision for the Vine Street property with a plan annexed (agreed vol 3 folios 757 - 759). This showed that the area to be subdivided was an area fronting both Vine Street and Great Northern Highway at the north-eastern corner of the property;

(h) an extract from the minutes of the Statutory Services Committee of the Shire of Swan for 19 November 1990 (agreed documents vol 3 folio 760 recording an application for subdivision of the Vine Street property by P and W Consolaro for the purposes of creating a lot of approximately 4,400 sqm incorporating the fuel depot, a residence and a shed. The minutes recorded that the applicant had made five previous applications for subdivision which had been refused and that a fuel depot had been operating from the north-east corner of the lot since 1955. The recommendation of the committee was that the application should be approved;

(i) a statutory declaration was made by Ross Joseph Consolaro and Judith Marylin Consolaro on 8 July 1993 in support of a caveat which they lodged claiming an interest in the Vine Street property for the land which they had purchased in 1975 and upon which they had built their home and in respect of which they declared that it had been agreed that the land could be subdivided so that the portion of the land that they paid for could be put into their sole names. That statutory declaration and the caveat were lodged at the Land Titles Office on 8 July 1993 and the statutory declaration was lodged later. Notice of the caveat would, in the ordinary course, have been sent by the LTO to the registered proprietors and at least Mrs Winnie Consolaro must have been on notice of this in the light of the discovery of the caveat among her papers after her death;

(j) an application for a new certificate of title for the lot emerging from that subdivision was signed by Mr P Consolaro on 11 December 1993 and lodged at the Land Titles Office (agreed volume at folio 627);

(k) a plan of the entire area of the Vine Street block showing the location of the house to be erected, undated (agreed documents vol 1 folio 43) with more details at folio 44;

(l) certificate of title showing the new land registered in the name of Ross and Judith Consolaro being the land running along Vine Street to the corner of Great Northern Highway in accordance with the last plan of subdivision submitted to the shire and approved.

62 All this shows that there was, in fact, payment of $3,000 made by Ross and Judith Consolaro to Phillip and Winnie Consolaro for the purchase of a block on Vine Street in April 1976, that the house was constructed by an independent building firm over a period of 10 or 12 months from 1976 to 1977, that Phillip and Winnie Consolaro were away on their overseas travel from May or June 1976 to November 1976, but that the work had commenced before their departure.

63 It is apparent that after 1976 there were many efforts to obtain subdivisional approval for the creation of the lot which Ross and Judith Consolaro had paid for but these struck objections at the Shire of Swan leading to repeated applications and slightly different proposals being submitted in the names of the registered proprietors, Phillip and Winnie Consolaro. Despite this, in 1993, shortly before Winnie's death, Ross and Judith Consolaro had reason to fear that Phillip Consolaro might sell the land to an oil company and therefore lodged a caveat to protect their asserted interest. Notice of the caveat was given to the registered proprietors and a copy of the caveat was found among Mrs Winnie Consolaro's papers after her death.

64 I have been unable to discover any plausible foundation for the allegation by Mr Phillip Consolaro that his son Ross Consolaro cheated him out of an interest in the land at Vine Street by building his house while Phillip and Winnie Consolaro were away and without authority. I also observed that Mr Phillip Consolaro only very grudgingly acknowledged that it was, indeed, his signature on exhibit 21 (the receipt of April 1976 for the payment of the $3,000) and then in circumstances where it was apparent that he had been denying the existence of any such payment for a long time. Just what has led Mr Phillip Consolaro to reach such an unjustified conclusion and to have become so prejudiced against his son Ross I cannot say, but it is apparent that he generally conceives that in some way he was tricked over this transaction and that Ross defrauded him. I am satisfied that this is an utterly wrong view of the facts and I cannot accept that Mr Phillip Consolaro did not know at the time that proper financial arrangements had been made and that the house and land which Judith and Ross Consolaro built and its position had been agreed by him and his wife. In some way or another his memory and recall of events has become distorted. In his current state of confusion he seems to have forgotten or repressed any such memory and he is consumed by his unjustified sense of grievance. I consider that this misplaced grievance has been exploited by others, particularly by Mrs Norma Gordon, because of her close association with and responsibility for Mr Phillip Consolaro in recent years.

65 It is quite evident that Mr Phillip Consolaro was a very hardworking man and one most disinclined to spend money on himself or for unnecessary purposes. No doubt his circumstances and those of his family meant that it was necessary for them to be very careful about money but the record of events makes it clear that both he and Mrs Winnie Consolaro were very stinting when it came to expenditure and were constantly asserting that Ross and Rodney would have to make do on the limited amounts of money that Mrs Winnie Consolaro was prepared to allow to them out of the family pool. They justified this on the basis that all the hard work and effort was being done for the benefit of the children but a habit of frugality and a deep suspicion of claims for payment became the normal outlook. Accordingly, when it came to honouring promises there was clearly quite a gap between the precept and the practice.

More on the construction of Ross Consolaro's home at Vine Street

66 Judith Consolaro confirmed that the building of the house started before Phillip and Winnie Consolaro went overseas on their holiday and continued while they were away. She had not wanted to build on the Vine Street property at all. She had wanted Ross to buy elsewhere off the property but it was Winnie and Phillip who chose the block stepping out the area on an occasion when Ross, Judith, Winnie and Phillip were all present together.

67 The builder Mr Carlo Aloi confirmed that the construction of the building had commenced before Phillip and Winnie Consolaro departed on their holiday and said that before then they had signed a building approval form and a site plan had been lodged with the shire. Mr Aloi often spoke to Phillip and Winnie Consolaro about the construction of the house and it was evident to him that they were fully aware of the site and the purpose of the building. Their son-in-law Robert Gordon was employed to do the brickwork on the house. Mr Gordon had been a bricklayer for Mr Aloi for 10 years. Mr Aloi impressed me as a careful, reliable, truthful witness with good recall and an even outlook staying neutral in what he obviously knew was a long running family dispute. He was not cross-examined in any way to suggest that his testimony was false or contrived. A statement of his evidence had been prepared and exchanged before the trial (exhibit 19) and is dated 14 February 2008. He gave his oral evidence at the trial on 11 March and, accordingly the defendant and his counsel had ample notice of the substance of the evidence which Mr Aloi was to give.

68 However, when giving evidence Mr Robert Gordon maintained that the building of the house on Vine Street was commenced while Phillip and Winnie Consolaro were away. It is uncertain whether he may only have been referring to the brickwork but he said that he believed that no sand pad had been made or bricks delivered before the parents had departed on their trip. I do not accept this. Mr Gordon made a number of allegations in his oral evidence to the effect that Mr Aloi had lent his builder's ticket to Ross Consolaro to allow Ross to build the home and that Mr Aloi had said to him that the job was being done for Mrs Winnie Consolaro. I reject Mr Gordon's evidence in this respect. He made a poor impression, displayed obvious partisanship with his wife and father-in-law and displayed a dismissive condescending attitude towards his brother-in-law the plaintiff. I do not accept Mr Gordon as a reliable or trustworthy witness and note that he attempted to be domineering when giving evidence and was overly pedantic. Significantly none of his allegations about the conduct of Mr Aloi were put to Mr Aloi by the defendant's counsel in cross-examination. His readiness to asperse Mr Aloi and the attitude which he displayed towards the evidence of Mr Ross Consolaro and Mrs Judith Consolaro showed that he was far from independent or objective.

69 In her responsive statement (exhibit 20B) Mrs Norma Gordon said that she was living at her parents' house at Vine Street when Mr and Mrs Phillip Consolaro went away on their trip in 1976. She maintains that they left on 15 May 1976 without being able to recall why she remembers their departure being on that date. According to Mrs Gordon she looked after the home and the business while her parents were away. She said that Ross' statement that the house pad had been laid and that bricks were on the site before their parents left on the trip is false. Mrs Gordon maintains that no construction work started or brick deliveries were made until Phillip and Winnie Consolaro had left on their trip. Again, however, I do not accept this as I consider the evidence of Mr Aloi to be reliable on this issue. More to the point the evidence of Mr and Mrs Gordon in this respect has been led in support of the claim by Mr Phillip Consolaro that neither he nor his wife knew or approved that the house was to be built where it was located and had not given permission for that to occur. Again, I do not accept this because of the need to obtain building approval and various permits which Mr Aloi and Ross Consolaro have all said were done and which were signed, at least by Mr Phillip Consolaro, before the work commenced and before his departure. In par 29 of exhibit 20B, Mrs Gordon refers to the 'deposit' for $3,000 being received on 14 April 1976 which is a reference to the payment made by Ross Consolaro for what he says was the purchase of a lot on Vine Street for the location of his home. In her principal statement, exhibit 20A relating to this payment, Mrs Gordon had said at par 71:

I see on 14.04.76 there is an entry 'RJ & JM Consolaro $3,000' was part of a deposit of $3,743 with the words 'not earnings' written there. Mother left for a trip in May 1976 and returned later in October 1976. I was present when Ross and mum discussed loaning $3,000 to mother. I did not see Ross give her the $3,000.

70 Such a description of the transaction is entirely inconsistent with the written receipt of 6 May 1976 (exhibit 21) which refers to a payment in full for building site on Lot 2611. Mrs Gordon did not address the point of whether the money was ever repaid. I can only consider her evidence in this regard to be an attempt to explain away the bank deposit for $3,000 which is recorded in defendant's exhibit D1 and, in that regard it disregards the manuscript note 'building (obliterations) house'.

71 When these incongruities are seen in the context of the defendant's initial denial of the authenticity of the manuscript receipt, on which I have previously made some observations, I can only conclude that this is an attempt to explain away a fact which is plainly inconsistent with the defendant's version of how Mr Ross Consolaro's house came to be built. It reflects very badly upon the credit of Mrs Gordon and it confirms that the defendant's entrenched view of this transaction is a false and obsessive one.

72 Kyli Consolaro (now Mrs Kyli Peet), the daughter of Ross and Judith Consolaro, had her 21st birthday on 9 April 1995. A family party had been arranged at Vine Street and party lights and other illuminations had been put up in the shed for the occasion. However on that day there was a major argument between Ross Consolaro and his brother-in-law Robert Gordon and his sister Norma Gordon. Such an outburst seems to have been brewing for it is obvious that there was considerable mutual hostility between Ross Consolaro and Norma Gordon which had existed for quite some time before and which was increasing over events occurring in the administration of Winnie Consolaro's estate and over the discovery that Ross and Judith Consolaro had placed a caveat on the Vine Street land to secure their interest and in pressing for the subdivision which had then only recently been achieved.

73 It seems that Ross Consolaro had asked Robert Gordon to remove some vehicles and equipment which had been stored in the shed which was then on Ross Consolaro's land. Robert Gordon had refused to do so whereupon Ross Consolaro threatened to move them with a front-end loader. Mr Gordon's response was to go to the old family house which controlled the electrical supply to the shed and remove fuses which cut off the electricity to the lights and other facilities which had been installed for the party. Ross Consolaro's response was to remove electrical fuses from the shed which supplied the fuel depot and the bowsers so that they would not operate. All this may sound petty but it was no doubt symptomatic of the depth of feeling and animosity between the individuals at that point. One of the results of the argument which broke out was that Ross Consolaro then ordered Norma and Robert Gordon off the property and forbade them to return which meant that Norma Gordon would no longer be able to operate the fuel depot. She indicated that she did not want to continue it anyway because it was not worthwhile and the fuel depot stopped trading from then on.

74 At this point Phillip Consolaro had left his old house at Vine Street and gone to live at Walyunga with Norma Gordon and her family. I can only conclude that from then on he became increasingly under the influence of Norma Gordon and that it was she who sowed in his mind notions that he was being exploited by Ross Consolaro in regard to the revenues from the sand mining operations which, in turn, led to Ross being excluded from the Walyunga property and his sand mining sales being terminated as already described.

75 That further escalation in the hostilities between father and son and the Gordons was preceded by a visit from the father who said to Ross that he had had a meeting with his accountant and that the accountant told him that he was going bankrupt and could not sign any cheques whereupon the father demanded a statement of receipts of monies for the sand mining operations. It is clear that Norma Gordon had been going through the father's financial position and had raised with him a dissatisfaction about the sand mining operations saying that both Ross Consolaro and the father were receiving too much money at the expense of the rest of the family from the sand sales no matter what the agreement between Phillip Consolaro and Ross Consolaro in this regard may have been. Ross and Judith Consolaro were very offended at the suggestion from his father that they were somehow exploiting the sand mining revenues and they collected all their records and said that they went to visit the father's accountant in order to demonstrate to him that all the accounts were in proper order. According to Mr Ross Consolaro they got nowhere on this occasion because by then the father had dismissed the accountant. This does not seem to be exactly correct. Rather the position was that the accountant, Mr Edwick, ceased doing the financial and taxation returns for Mr Phillip Consolaro's business because the business ceased (see Mr Edwick's statement exhibit 23). However, Mr Edwick did say:

1. I confirm that in the financial years 1991 to 1995 I was the accountant for Winnifred and Phillip Consolaro.
2. I record that I attended at the Consolaro property at Herne Hill and met with Mr Phillip Consolaro and Mrs Norma Gordon.
3. My recollection is that I did not meet Ross Consolaro then and that I had never met him.
4. I recall giving Mr Phillip Consolaro advice to the effect that he was 'asset rich and cash poor' and in particular that he had a cash-flow problem. I can recall commenting that in respect of the Sand Pit he was entitled to a reasonable return on his investment.

76 He maintained under cross-examination that he did not meet with Ross Consolaro or see any papers from him. He said that the Consolaro business was being wound down when the 1992/1993 returns were being completed and that he did not do the final tax return for the period to the death in October 1995. He had no further consultations with Mr Phillip Consolaro or Mrs Norma Gordon after the meeting at Herne Hill which he had first described. It was clear that Mr Edwick was most reluctant to be drawn into the internal disputes of the Consolaro family. He said that he had no recollection of any telephone discussion with Mr Ross Consolaro although the latter said that he had attempted to contact Mr Edwick to discuss his father's finances. I do not draw any adverse conclusions about the credibility of Mr Edwick or of Mr Ross Consolaro because of this but rather, making due allowance for the time which has passed since 1995, I consider that the explanation is that Mr Ross Consolaro probably made some attempts to contact Mr Edwick to discuss the financial position but that Mr Edwick was not able or willing to meet with him to discuss his client's financial affairs and did not want to be drawn into family disputes. The very fact that the question of the reasonableness of the return from the sand mining operations was discussed with Mr Edwick at the meeting which he had with Mr Phillip Consolaro and Mrs Norma Gordon can only mean that either father or daughter had raised the subject and expressed some discontent about the then existing arrangements and that alone would be enough to signal the likelihood of a major internal family issue for Mr Edwick.

77 The caveat lodged by Mr Ross Consolaro over the Walyunga land to protect his interest under a sand mining agreement with an accompanying right of entry has already been noted. A large commercial sand pit operation was conducted on that land at least from 1970 to mid-1995. There were periods when the revenue from the sand operations was quite considerable. It is not entirely clear how the revenue was accounted for or distributed as between Phillip and Winnie Consolaro on the one hand and plaintiff, Ross Consolaro, on the other, from 1991 onwards. The evidence was that there was an agreement between Ross Consolaro and his father that Ross Consolaro would be permitted to undertake the sand operations and in return pay his father $1 for every cubic metre of sand sold. Quite how long that arrangement endured and how the volume of the sand sold was recorded was never adequately explained. Nor were there complete financial records from the plaintiff showing income derived by him from sand mining operations or other operations from the Walyunga property.

78 At this point I make the observation that there is quite a shortage of formal accounting records in this case, even annual financial statements and tax returns for the plaintiff. I am satisfied that this is due, in large part, to the informal way in which the family financial records were kept by Mrs Winnie Consolaro and how wages and other earnings and cash, whether for the partnership of the mother and father, or earned by Ross or Rodney Consolaro, were paid to her and what were, in effect, allowances returned by her to her sons from money so pooled. It seems that Mrs Winnie Consolaro had her own unique way of recording financial transactions and the position of various members of the family. No-one else in the family fully understood her methods or has been able to decipher fully her remaining records. In addition to this method of operation there was quite a lot of barter trade and a quantity of cash transactions which may or may not have been fully recorded.

79 There are annual financial accounts and tax returns for the partnership of PJ and WP Consolaro for each of the financial years ending 30 June from 1985 to 1994 (defendant's additional documents folios 2 -11 inclusive). These appear to contain the only records of revenue derived from that partnership from the sand mining operations. However, there is a difficulty with these records because it is not readily apparent whether they record the entire income derived from sand sales or the partnership share of the income under the royalty arrangement described as having been agreed between Ross Consolaro and his father. This matter did not receive close attention at the trial and therefore one must be cautious in interpreting or attaching significance to recorded revenues because of the need to make an allowance that, for some of them at least, there may be some associated income derived by Ross Consolaro. With that realisation, however, it is nevertheless significant to consider these records if only to measure the magnitude of the income and place this in the setting of the great family dispute and breakdown in relationship between Ross Consolaro and his father which occurred in 1995.

80 It seems that sand mining or sand supply operations had been conducted from the Walyunga pit for many years but in the early stages on a relatively small scale. There was evidence that Mr Phillip Consolaro and then Ross Consolaro, on his father's behalf, had in the early years supplied loads of fine silica sand to various foundries and glass manufacturers on a commercial basis but there was no suggestion that the revenues from this were great. Later it seems that sand was supplied for use in various building or construction operations, presumably as an ingredient for cement or concrete and for like purposes. In many of these instances contractors would visit the site with their own trucks, would have their trucks loaded by a front-end loader owned and operated by or on behalf of the Consolaro family and pay an agreed charge for a load or tonnage. Later, however, at the time when the Roe Highway was being designed and constructed, in the Midland, Swan Valley and Helena Valley region, there was a much greater demand for sand and very large quantities of sand from the sand pit were sold to the highway constructors generating large revenues. It seems that this period of lucrative sales came to an end when Mr Ross Consolaro refused to reduce the price demanded by the road building contractor for the sand supplied, leaving the contractor to go elsewhere for supplies and then, of course, the highway was eventually completed.

81 In Mr and Mrs Phillip Consolaro's financial accounts for the periods mentioned the revenue from sand sales or royalties recorded was as follows:

(f) for the year ended 30 June 1990 $ 27,081 (royalties)

(h) for the year ended 30 June 1992 $ 13,600 (royalties)

(i) for the year ended 30 June 1993 $103,426 (royalties)

82 The reference to royalties in the above table are for those occasions when in the annual financial accounts the revenue is shown as royalties. This suggests that it was the share in the total income for the sale of sand derived under the arrangement agreed between Mr Phillip Consolaro and his son ($1 per cubic metre to the parents) and therefore, by implication, that on occasions when the word 'royalties' is not found in the accounts the revenue recorded is the entire revenue. However, I do not consider that one can safely infer that this is necessarily the case because, so far as the evidence of Mr Ross Consolaro and his father is concerned the royalty arrangement operated continuously for some years (without a break for the 1990/91 year).

83 Nevertheless, whatever may have been the full extent of the income from sand mining operations, the amount recorded in these accounts must be regarded as money actually received even if, on occasions, it was not all the money received from that business. Treating the figures on that basis, it is evident that the revenues from sand mining were relatively small (less than $10,000 a year) until after the end of the 1987/1988 financial year; that they then rose substantially to be in the region of $25,000 to $30,000 a year for the years ended 30 June 1989, 1990, 1991 and then suffered a small decline to $13,600 per year before a dramatic increase to $103,426 for the year ended 30 June 1993 before falling back again to less than $10,000 for the year ended 30 June 1994. I consider that I should infer that the very large revenues in the 1992/1993 year coincided with the construction of the Roe Highway with its heavy demand for sand.

84 The evidence is that Norma Gordon came to the view that Ross Consolaro was doing too well out of the sand mining operations, no matter what may have been the arrangement between him and their father, and that the father and other members of the family should benefit in the large revenues coming from that operation. According to Ross Consolaro, Norma Gordon insinuated into the mind of her father that he, Ross, was ripping the father off in relation to the sand mining operations and should be stopped. The matter was further complicated by an associated dispute about the use and maintenance of the front-end loaders and other machinery used in the operation with the suggestion that Ross Consolaro was not maintaining them properly. Whatever may have been the exact cause of the dispute, Mr Phillip Consolaro turned up at the sand pit operations at Walyunga in August 1995 and ordered Ross Consolaro off the property, built a gate and barred him from entry. The defendant advertised in the newspaper that Ross Consolaro had no longer any right to conduct the sand mining operation. Having been excluded from the site, Ross Consolaro then took legal advice, lodged a caveat claiming an interest in the property for the purposes of conducting the sand mining operations and commenced legal proceedings against his father for alleged breach of the agreement to grant him the use of the sand pit and a share in its revenues.

85 One additional potential contributing cause to the dispute between Mr Phillip Consolaro and Ross Consolaro over the sand pit was Mr Phillip Consolaro's decision to blame Ross Consolaro for losing the contract to supply sand to the Roe Highway construction contractor because of an unrealistic and uncompromising unreadiness to adjust the price of the commodity.

86 There is no evidence of the magnitude of the sand operations from the pit at Walyunga from 1995 onwards nor any record of revenues, if any, derived from the sand mining operations from then on.

87 The details of the litigation between father and son over the sand mining dispute were not put in evidence but correspondence from the parties' solicitors on the subject between August and September of 1995 is in evidence (agreed documents vol 3 folio 630 - 636). In a letter from Messrs Greg Hocking & Associates, solicitors for Mr Ross Consolaro dated 25 August to Mr P Consolaro, Ross Consolaro's position was stated as follows, and I summarise:

• Some years before Phillip and Ross Consolaro entered into an oral agreement for Ross Consolaro to work the sand pit on the Walyunga land on the basis that Ross Consolaro would do all the work associated with operating the pit as a business and that Phillip and Winnie Consolaro would be paid royalties for the sand used.
• Some years after the oral agreement was reached a document was signed by Phillip and Ross Consolaro recording the existence of the agreement and that confirmed that the arrangement was to continue during Phillip Consolaro's lifetime and that thereafter royalties were to be paid to his estate.
• Later Mrs Winnie Consolaro died and Phillip Consolaro became executor and under the terms of the will became entitled to all the royalties previously paid to Phillip and Winnie Consolaro jointly.
• On 23 August 1985 Phillip Consolaro published an advertisement in The West Australian newspaper's public notices section announcing that he alone was conducting the sand pit business and shortly afterwards obliterated the sign on the premises at the entrance giving details of Ross Consolaro's contact.
• Phillip Consolaro demanded the return of the keys to the front-end loader.
• These actions were alleged to have been in breach of contract and a claim for damages against Phillip Consolaro was foreshadowed, the damages being for the loss of the income from the sand pit business.
• Rather than resort to litigation, negotiations to resolve the difficulties were invited.

88 The evidence includes a statement of earnings and expenses for Ross and Judith Consolaro for the 1994 and 1995 financial years (agreed bundle of documents vol 3 folio 633). This shows an aggregate income of $87,690 for the 1994 and 1995 financial years of which $79,601 came from the sand pit and $8,089 came from other operations. Expenses were listed for each year totalling $55,124 and there were apportioned as to $50,042 to the sand pit, leaving an allocation of $29,559 of income for Ross and Judith Consolaro from the sand pit for those two years. The expenses included an aggregate of $32,154 for sand purchased which, in the context, presumably referred to the royalty paid to Mr Phillip Consolaro for the sand extracted.

89 In a second letter from Greg Hocking & Associates, solicitors for Ross Consolaro to Messrs Corrine Griffin & Co, solicitors then acting for Phillip Consolaro, the plaintiff's solicitors referred to a meeting between the solicitors on 11 September 1995 at which attempts were made to resolve several issues between the clients. The letter noted that Mr Phillip Consolaro would not permit any direct discussion to occur between himself and his son Ross. The solicitors acting for Mr Phillip Consolaro also were by then acting for his children other than Ross. The issues addressed in that letter, again in summary, were:

• The role of Phillip Consolaro as trustee of the estate of Winnie Patricia Consolaro, especially in relation to his dealing with the proceeds of the sale of the delicatessen located at Great Northern Highway, Bullsbrook owned by the deceased. According to the instructions provided by Ross Consolaro, the whole of the proceeds of the sale were paid by Phillip Consolaro to Norma Gordon, who had resided with Phillip Consolaro since shortly after her mother's death.
• Norma Gordon was alleging that there was a partnership between Winnie Consolaro and herself in the delicatessen and that she was entitled to half of the proceeds of the sale as her share in the partnership and that only half of the proceeds was available for distribution under the will.
• Norma Gordon was proposing to refund part of the proceeds of the sale of the delicatessen and to place 12 1/2% of them in an interest bearing account for Ross Consolaro until Phillip Consolaro's death with the interest payable to Phillip Consolaro and the principal to be paid to Ross Consolaro upon Phillip Consolaro's death (12 1/2% representing one-quarter share of 50% of the proceeds of sale).
• No documents were provided to Ross Consolaro or to his solicitors confirming the existence of the partnership and the appearances were that the payment of the whole of the proceeds of the sale of the delicatessen by Phillip Consolaro to Norma Gordon was a breach of trust.
• The remaining issue concerned actions taken by Phillip Consolaro or by others on his behalf to terminate the business relationship between Mr Phillip Consolaro and his son in relation to the sand pit and to prevent Ross Consolaro from working the sand pit and locking him out. Conditions sought to be imposed by Mr Phillip Consolaro and/or by his other children for Ross Consolaro to comply with made it impossible to re-establish a workable business relationship. Mr Phillip Consolaro was refusing to speak to Ross Consolaro unless he complied with certain conditions in advance.
• In view of the impasse, Ross Consolaro had decided to return the tractor and keys to the loader and expressed the concern that Mr Phillip Consolaro had been induced to make a new will removing Ross Consolaro as executor, indicating an intention to deprive him of any benefit under the will.
• Ross Consolaro claimed to have a legitimate expectation for a fair share in the property for a lifetime's effort and that, as a consequence, Ross should be at least one of the executors and be given at least an equal share in the property with the other siblings.
• Notice was given that Mr Phillip Consolaro and the other children had seven days to remove any of their property kept in the shed at Vine Street.
• A call was made for proposals to recognise Ross Consolaro's interests.

There is no evidence of any written response to any of those letters by or on behalf of Mr Phillip Consolaro or the other children.

90 Despite the reference in the solicitors' second letter there are documents in evidence showing that Mrs Winnie Consolaro was entitled to derive income from the Bullsbrook delicatessen. In her personal income tax return for the year ended 30 June 1987 (defendant's document 4) her income from that source was declared to be $6,161.

91 In Mrs Winnie Consolaro's income tax return for the year ended 30 June 1988 she reported a loss of $1,363 from the Bullsbrook delicatessen (defendant's documents folio 5). Both those returns indicate that separate taxation file numbers were kept for the Bullsbrook delicatessen business.

92 For the year ended 30 June 1989 (defendant's documents 2 folio 6) there is a partnership income tax return for the Bullsbrook delicatessen which showed a partnership loss of $21,019 for the 12-month period, which was entirely attributed to Winnie Consolaro with no share of the loss being borne by Norma Gordon. According to the statement of distribution in that income tax return Mrs Winnie Consolaro was entitled to 100% of the income/loss. That return also included a balance sheet for the Bullsbrook delicatessen as at 30 June 1989 showing the proprietors as being Mrs WP Consolaro and Mrs N Gordon with the proprietorship funds being:

93 In Mrs Winnie Consolaro's income tax return for the year ended 30 June 1989 the whole of the loss of $21,019 from the Bullsbrook delicatessen is claimed as a deduction against her other income.

94 In Mrs Winnie Consolaro's income tax return for the year ended 30 June 1990 there is no express mention of any income or any deduction in respect of a loss arising from the operation of the Bullsbrook delicatessen. The return does show income from partnerships but the amounts disclosed are identical with the amounts disclosed in Mr Phillip Consolaro's income tax return for the same period, therefore strongly suggesting that the only income or losses declared arose from other operations and not from the Bullsbrook delicatessen.

95 Similar observations can be made about the income tax return and accounts for the year ended 30 June 1991, 30 June 1992 and for the year ended 30 June 1993. Nor in the income tax return filed for Mrs Winnie Patricia Consolaro for the year ended 30 June 1994 (the financial year including the three and a half months before her death) is there any mention of income or losses associated with the operation of the Bullsbrook delicatessen.

96 Consequently, the only income tax or return or financial accounts tendered in evidence on behalf of the defendant in relation to the Bullsbrook delicatessen was the income tax return and accompanying papers for the year ended 30 June 1989. As already mentioned, this shows that the entire entitlement to the revenue of that partnership (for that year a loss) was by Mrs Winnie Consolaro to the exclusion of Mrs Norma Gordon, and the accounts show that the only entitlement to proprietorship funds of $74,219 was by Mrs WP Consolaro and that Mrs N Gordon was then indebted to the partnership to the extent of $2,443. The balance sheet showed that the land and building at cost were valued at $68,000 and that it was Mrs Winnie Consolaro who had introduced the capital.

97 Accordingly, far from supporting the contention advanced on behalf of Mrs Gordon that she was entitled to one-half share of the proceeds of the sale of all the partnership assets following her mother's death, the appearances are that, unless there had been a material change in the circumstances of the partnership since 1989 or significant introductions of capital by Mrs Gordon to the partnership, it was the estate of Mrs Winnie Consolaro which was entitled to all or most of the proceeds of the sale of the partnership assets. Obviously, this case is not about the entitlement of parties interested on the realisation of the assets of the Bullsbrook partnership but this series of financial records, put into evidence on behalf of the defendant, shows how tenuous was Mrs Gordon's claim and how questionable was the decision by Mr Phillip Consolaro to pay, from his wife's estate, all the proceeds of the sale of the Bullsbrook property to his elder daughter. It also tends to justify the attitude taken by Mr Ross Consolaro in objecting to his father's conduct in this respect and to reveal how cavalier, or perhaps susceptible, his father was in dealing with the mother's estate. It is obviously one of several potential causes for the marked hostility demonstrated by Mrs Norma Gordon towards her brother, Mr Ross Consolaro, when she was giving evidence as I have already noted.

98 The outcome of these inter-familial disputes about the Bullsbrook delicatessen and the exclusion of loss from the sand mining operations at Walyunga has already been described. Nevertheless, I repeat, but only briefly, that the upshot was that $20,000 was paid to Ross Consolaro in relation to the dispute concerning the administration of his mother's estate and $100,000 was paid to him as an agreed settlement of all or any claims arising out of his claim of alleged wrongful exclusion from the sand mining operations at Walyunga in August 1995.

99 From then on the position between Mr Phillip Consolaro and his son, the plaintiff, has been irreconcilable and, as the solicitors' correspondence has noted, the father has refused to speak to the son since then. An obvious ingredient in the continuing hostility is an attitude of disapproval and resentment by Mr Phillip Consolaro to what he regards as defiance by his eldest son. This is, I consider, unjust because the merits in both disputes seem to lie with the plaintiff but it is a reflection of the authoritarian and hierarchical structure of the family and of the insistence by the parent in attempting to control the destinies of the children.

100 Exhibits 10 - 15 comprise six statements from various witnesses which were tendered without the authors being required to give oral evidence or be cross-examined. They comprise exhibits 10 - 15 inclusive. The effect of this evidence can be summarised as follows.

101 Mr Lindsay Payne purchased an 'International' truck from Mr Phillip Consolaro and paid him the price of $4,000 in person. This evidence was to refute any suggestion that Mr Ross Consolaro had wrongly sold one of his father's trucks or kept the proceeds of the sale.

102 Mrs Nora Moran of 18/25 Great Northern Highway, Bullsbrook has been a neighbour of the Consolaro family at the Walyunga property since 1969. She said that Ross and his father ran a busy sand/gravel carting business from that farm supplying the Morans as well on the farm for many years. They admired Ross Consolaro and Phillip Consolaro's working partnership because they apparently got on very well, and Ross Consolaro was always very respectful of his father. The Morans had permission to use the Consolaro Walyunga property for exercising their horses and in doing so often saw Messrs Ross and Phillip Consolaro feeding, drenching and sorting cattle for market. Mrs Moran also often saw Ross Consolaro driving a tractor putting in hay crops, mowing, bailing and carting, fixing fences and working the sand pit almost daily. She said that up until the early 1980s she rarely saw Rodney Consolaro around the Walyunga farm and never saw the sisters. She did not know that Ross Consolaro had two sisters until about the 1990s. Since about the 1980s Mrs Moran had more often seen Rodney Consolaro on the farm. This evidence, which I accept, establishes that over a period from the late 1960s to the 1980s Ross Consolaro and his father were often working the Walyunga farm together in a harmonious manner.

103 Mr Michael Switch was a neighbour of the Consolaro family in Vine Street, Herne Hill, from his early childhood until about the 1990s. He grew up as a child with Ross Consolaro and would go to school and back with Ross on school days. However, the two boys were not generally able to play after school because Ross Consolaro had to go and do work for his father in the vineyard and in the wood yard and Michael Switch was also required to work for his father after school. According to him in the early 1960s he often saw Ross Consolaro and his mother loading trucks with wood in the afternoons. He also often saw Ross Consolaro driving the tractor for Don Lamond digging the vines, picking grapes, pruning and doing general vineyard duties. He also often saw Ross Consolaro moving irrigation pipes and carting the lucerne hay from a small part of the vineyard. According to Mr Switch as Ross Consolaro grew through his teenage years he started to do more of the vineyard work. He often saw Ross Consolaro, his father and mother in their truck going to the farm which they had at Upper Swan (Walyunga). In his early twenties Ross Consolaro got his truck driving licence and started to drive his Uncle Blondie's (Mr Svilicich's) truck and then his father's truck carting sand. Ross Consolaro carted sand for the Switch family on occasions. The Consolaro's parents also ran a fuel depot from the Vine Street property and the deliveries of this fuel were almost entirely done by Ross Consolaro who in about 1978 also began to cart fuel from Fremantle with his own truck. Michael Switch noticed that from about the mid-1970s Ross Consolaro would deliver fruit to the markets about three nights a week or so in his own truck and that he also normally used to cart Michael Switch's father's wine grapes on his own truck until the Switch family sold their vineyard.

104 Another old neighbour of the Consolaro family at Herne Hill was Mr Vincent Katich, a retired police officer. In his statement (exhibit 13) Mr Katich said that he known Ross Consolaro for his entire life, together with his parents Winnie and Phillip Consolaro as well. Ross Consolaro grew up living with his parents at home and upon marriage lived next door to them in Vine Street, Herne Hill. The Consolaro property is just the next street down from the Katich home in Oakover Road.

105 Mr Katich described the fuel supply and delivery service from the Vine Street property which was conducted by Phillip and Winnie Consolaro and said that in conjunction with those businesses they also sold and delivered sand from their Bullsbrook property (Walyunga).

106 Mr Katich says that although he is known to the Consolaro family he is not a particular friend of any of the family but is generally on good terms with both Ross Consolaro and his father. He records seeing Ross Consolaro as a young man regularly doing work about the Vine Street property often in company with a male relative nicknamed 'Blondie' (a reference to Matt Svilicich - Mrs Winnie Consolaro's brother). Mr Katich regularly saw Ross Consolaro when he was in his twenties driving his father's truck usually carting fuel drums. Mr Katich described Ross Consolaro as carting fuel drums either to or from Fremantle and said that he often used to pass Ross on the road when they would both wave. According to Mr Katich in later years Ross Consolaro often drove his father's International truck carting mostly sand. However, he did see him driving other vehicles. That practice must have gone on for something like 10 years or so and he frequently encountered Ross Consolaro on the road carting sand and also, with some regularity, carting cattle. According to Mr Katich, Mrs Winnie Consolaro was well known for 'wearing the pants in the family' and he described a transaction in which he purchased a tractor and arranged for the Consolaro family to collect the machine and carry it to the Swan Valley for him when negotiations were conducted with the mother. Mr Katich also described Ross Consolaro as being a very good mechanic who normally maintained the family vehicles to a high degree of performance and to the pride of his father.

107 Another old acquaintance was Mr Ivan Zaknich of Railway Parade, Millendon who provided a statement which became exhibit 14. In this Mr Zaknich explained how he had known Ross Consolaro since he was a young adult. Mr Zaknich had been employed at Midland Brick as a clay truck driver between 1973 until 1985. When driving in the locality during that period he frequently saw Ross Consolaro on many occasions working in the vineyard at Vine Street, the sand pit up at Upper Swan and on the road carting sand and produce (grapes, melons etc), usually with his father. According to Mr Zaknich the other son Rodney Consolaro was not usually there and he did not normally see Rodney working on either the vineyard or the Upper Swan farm before about 1981.

108 Mr Zaknich also described frequently seeing Ross Consolaro carting fuel with his father's truck but most often saw him carting sand. At first this was always in his father's truck but later Ross Consolaro used his own tipper truck. Mr Zaknich also said that since Ross Consolaro was a young adult he had seen him working in the vineyard regularly doing things like discing, strip digging and general vineyard work spraying, picking grapes and currants. He also regularly saw Ross Consolaro at the Walyunga farm whilst he was driving where he would be doing fire breaks, carting sand, picking up wood and working with the cattle. Mr Zaknich said that he also saw Ross Consolaro repairing fences and doing other similar work and would often toot his horn as he went past.

109 Exhibit 15 is the statement of Mr Hamish Philps, a retired accountant at Mundaring. In this statement Mr Philps describes how he maintained and lodged the taxation records of Mr Ross Joseph Consolaro and Mrs Judith Marilyn Consolaro and their partnership RJ & JM Consolaro for something like 15 years. He goes on to say that in about 1985 he met Mrs Winnie Consolaro who evidently wished him to conduct the taxation affairs for herself, her husband and their partnership after her then accountant at H&R Block (Mr Watson) had ceased to practice there. He saw Mrs Winnie Consolaro a few times but then referred her to the Forrestfield branch of H&R Block and believed that she subsequently had that branch attend to their taxation affairs.

110 Mr Philps says that in about 1994 or 1995 when attending to that year's tax matters Ross and Judith Consolaro complained to him that they were upset because Mr Edwick of H&R Block, Forrestfield had advised Winnie Consolaro's husband, Phillip Consolaro, that Mr Ross Consolaro was ripping them off. Mr Philps told Ross and Judith Consolaro that there was nothing he could do himself but suggested that if they had any concerns they should write to the head office of H&R Block in New South Wales and he believed that they did so. He later had a conversation with a Mr Phil Hunt of the H&R Block head office in New South Wales and with Mr Edwick about the complaint which had been made and what were the details of it. According to Mr Philps he informed Mr Edwick that his clients were upset about alleged advice said to have been given by him to Mr Phillip Consolaro to the general effect that Ross Consolaro had been cheating or ripping off his father about some sand pit related issues. Mr Philps then went on to advise of the response of Mr Edwick (plainly hearsay) to the effect that when giving that advice he had not known as much about the family affairs as he did later and did not wish to have anything more to do with the matter. Mr Philps concluded with the observation that all he could say now or at the time is that the income of Ross and Judith Consolaro for some years prior to and following 1994 and 1995 could only be described as being from limited to very modest.

111 These allegations were not put to Mr Edwick when he gave evidence or was cross-examined and Mr Edwick certainly denied that he had ever advised Mr Phillip Consolaro that Ross Consolaro was ripping him off. Nevertheless it is clear that in about 1995 Mr Edwick did have a conference with Phillip Consolaro and Norma Gordon and that the question of whether or not the father was obtaining a reasonable return from the sand pit was canvassed. Having regard to subsequent events I am satisfied that I can draw the inference that, at the time of that conference, either Mr Phillip Consolaro or Mrs Norma Gordon or both were raising an issue of discontent about Mr Phillip Consolaro's share of the revenue from the sand pit for Mr Edwick's comment. Whatever response Mr Edwick might have made on that occasion it is apparent that Mr Phillip Consolaro formed the view that, in some way or another, his son Ross Consolaro was exploiting him when it came to the revenue from the sand mining operations.

112 The events relied upon by the plaintiff giving rise to his claim cover a long period, indeed from 1960 until 1996. Over these years Ross Consolaro described how he performed a variety of work for his parents on one or more of the farming properties or the business activities conducted from Vine Street in return for little or no remuneration. However, simultaneously for parts of this long period he was carrying out his own commercial activities in return for payment from third parties. In respect of the occasions in which he was earning money from outside sources Ross Consolaro was frequently required to hand over the wages or the income to his mother for use in the family business and in return she would allocate him a small allowance or stipend which he could use for his personal expenses and, after he was married, in support of his wife and growing family. According to the plaintiff the payments made to him by his mother or the amounts which he was allowed to retain from his wages were meagre and insufficient for him to live on.

113 As he got older Ross Consolaro was able to purchase a truck with his wife's help and in 1974 his prospects for obtaining an external income increased and he became able to retain those earnings. The nature and type of the work varied over the years and according to the seasonal demands of the vineyard and the other two farms. There was also the conduct of the family wood yard which operated from 1960 until 1964 and then the fuel depot which was operating from 1966 until 1987 with his involvement although thereafter it was operated by Norma Gordon until the events of 1995.

114 According to Ross Consolaro he was working continuously at the Walyunga property from 1966 until 1995 doing general cattle and sheep work one or two days a week and in addition doing more work associated with the sand pit operations in 1966; and again from 1969 to 1985; and from 1991 until 1995. All that work was done for the benefit of Phillip and Winnie Consolaro and was either undertaken for very little remuneration or no remuneration in the early years. He was also engaged in doing work on the Deepdale farm from 1980 to 1988 at the rate of about half a day per week averaged over the year.

115 Where possible Ross Consolaro also worked for himself. This work was initially as an apprentice and then as a young employed diesel mechanic from 1969 to 1974. From 1974 to 1989 he did cartage work for fruit and vegetable markets several days a week and from 1979 until 1995 he also undertook contract cartage on his own account. This cartage was initially with the use of his Uncle Blondie's truck (Phillip Consolaro would not allow his truck or machinery to be used other than for the partnership business) and, from 1974 onwards Ross Consolaro's own truck. The cartage work fell into three main categories. First there was cartage for various fruit and vegetable markets. Secondly there was cartage of fuel which were private deliveries separate from, but additional to, the cartage he performed for the family in carting to and from the family fuel depot. And thirdly there was contract cartage generally in the Swan Valley performed between 1981 and 1995. I have no doubt that this extra additional work which has been described as Ross Consolaro's own commercial activities was essential for the sustenance of himself and his wife and family. This was because his mother was unwilling or unable to pay more than very small amounts for the work which he did in and around the farms and for fuel cartage, sand cartage and wood yard work. Her attitude was that the family could simply not afford to pay more than these very small amounts and that if the work was not done there would be compelled to sell one or more of the properties.

116 According to Ross Consolaro it was repeatedly explained to him that the farm would one day be his and that as soon as his mother and father got through the particular financial difficulties they were experiencing at the present Ross Consolaro's name would be put on the title with theirs. Because he loved the farm and respected his parents and trusted in these promises he continued to do all the work required of him, notwithstanding the very low remuneration. This pattern of operation continued, but with some variation over the years and at times, in exasperation or through necessity, Ross Consolaro would inform his parents that he had to go and get another job where he could earn a decent income for himself and his family. On at least two occasions he did stop working in the family business for short periods and went and obtained employment at Midland Brick. However, on each occasion after only a week or so away from the family work, Mrs Winnie Consolaro would come to Ross Consolaro's home begging him to return, explaining that the family would have to sell the land unless he shared in the activities and accepted the lower wages but that it would all be worthwhile because she and his father would see that his name was placed on the title. On each of these occasions Ross Consolaro relented, gave up his job and went back to working in the general pattern which I have been describing.

117 There was one other occasion in which Mr Ross Consolaro applied for a job as a Royal Automobile Club (RAC) mechanic and driver. He was interviewed for the position and told that he would be notified if the job became available. Some weeks passed without him hearing from the RAC and he raised the question with his mother and asked if anybody from the RAC had been in contact. She answered him that a man from the RAC had telephoned the home sometime before to offer him the job but that she had explained that Ross Consolaro already had a job and was required at the family farm and was not available for the position. There was some attempt in the evidence for the defendant to suggest that this had not happened and that Ross Consolaro had never sought or obtained a job with the RAC. I am satisfied that he never in fact obtained a job with the RAC but I accept his explanation of these events and am satisfied that he was offered a position but, without him having an opportunity to refuse it, his mother rejected the offer on the basis that he was required at the farm for the family enterprise.

118 Not surprisingly the plaintiff's wife Mrs Judith Consolaro, became discontented with this state of affairs and the limited financial circumstances in which she and her husband were living and raising children. She was constantly pressing her husband to reduce or give up his work associated with the family operations and to obtain a full time job in the hope of establishing a degree of financial independence. Mrs Judith Consolaro did not enjoy a warm relationship with her mother-in-law. I am satisfied that the other members of the Consolaro family were hostile to Judith Consolaro from before the marriage and resented the fact that Ross Consolaro had married an Australian girl who did not appear to share the same degree of familial obligation which was their tradition. There was much evidence to the effect that Mrs Winnie Consolaro treated Judith Consolaro with disapproval and more than a little hostility and that the relationship between the two was very difficult. Nevertheless, Mrs Judith Consolaro, for the sake of her husband and children, endured all this and continued to live in close proximity on the Vine Street property notwithstanding that it had been her view that any home should be built on other land well away from Vine Street.

119 This natural and reasonable discontent about the financial arrangements was of course raised by Judith Consolaro with her husband and that became a spur for him to ask his mother for greater payments or to be brought into the business as previously promised. According to him his mother's response was that he should disregard any protests of his wife and trust his parents because they would keep their promises to put his name on the land. Although there were no doubt family arguments and episodes of exasperation and criticism by Ross Consolaro of the regime he continued to act as his parents wished and by his deeds, despite occasional angry outbursts, performed his familial duties.

The grounds of the equity relied upon by the plaintiff

120 A large component of the plaintiff's case and the evidence adduced in support of it, was an historical account of the work which Ross Consolaro had done on the various family properties or in connection with the family businesses from 1960 to 1996 with a view to identifying work done, solely for the family operations and distinguishing that from the work which he described as his own commercial activities. Part of his case and the evidence was to attempt to quantify the time spent on these various obligations and to establish the remuneration or other reward which he received from his mother or father for work on the family operations. All this was related to his description of the promises which had been made by his mother, and occasionally by his father and his reliance upon them to persevere in a situation which he often found difficult financially for himself and for his family.

121 Such an attempt to identify and quantify the time spent on these various operations and the remuneration received as a result of them over such a long period was difficult and, to a degree, approximate. Nevertheless, a very considerable case has been made by the plaintiff to identify and quantify the work which he did and the value of his own operations and this is captured in graphical form on the chart which he produced 'The Consolaro Time/Event Activity and Sequence Chart' which is exhibit 4 and which needs some explanation. This chart plots various activities undertaken by Ross Consolaro from 1960 when he was aged 12, until 1996, when he was aged 47 when the Vine Street vineyard was sold by his father. It shows Ross Consolaro's age at various times, and otherwise at five year intervals. It records the years of his apprenticeship, the period when he was employed by H & R Martin Bulldozer Contractors; when he first acquired his 2 1/2 tonne tip truck in 1974; when his mother and father made their world trip (wrongly recorded as being in 1975 rather than in 1976); when he acquired the Ford 6 tonne truck; when his brother Rodney Consolaro came back to the Vine Street property to work; when he acquired his ACCO 8 tonne truck in 1984; put a tipper on the truck in 1991; his mother's death in 1993; and his lock-out from the Walyunga property in 1995. The chart is then divided to show the time spent and work done on the various family properties and the properties showing, by the position on the graph, and the years, when that work was done. For example, the work done on the home block at Vine Street is listed for the whole of the period between 1960 and 1995 and that is further subdivided into the work done on vineyard operations (for the whole of the period); on the family wood yard from 1960 to 1964; and on the fuel depot from 1966 to 1987. Separately the graph shows work done on the Walyunga farm over the years 1966 to 1995, distinguishing between general cattle and sheep and farming operations on the property and work done on the sandpit operations. According to the plaintiff he was involved in working on the sandpit in 1966, in 1965 to 1985 and again from 1991 to 1995. Thirdly, the graph shows time spent working on the Deepdale farm in the years from 1980 to 1988.

122 Having tabulated the amount of work spent on these different family locations and identifying each particular location the graph then shows, for each of the years from 1960 to 1995 inclusive, the approximate hours per week spent by Ross Consolaro on these family operations. Next, on the right hand portion of exhibit 4, again in graphical form, the plaintiff sets out the time which he spent on his own commercial activities over the years from 1964 to 1995 distinguishing between work done in carting for the fruit and vegetable markets, and third party employed work, including his period as an apprentice and his initial employment by H & R Martin & Sons, later followed by fuel cartage on his own account from 1979 to 1987 (when he ceased to work on the fuel depot) and also general contract cartage from 1981 to 1995.

123 From those calculations, exhibit 4 then lists the number of hours a week which the plaintiff worked for himself from 1964 to 1995 inclusive and then, by adding those subtotals to the earlier calculations of time spent on family operations, showed the total hours which he worked each week from 1965 to 1995. There then follows a column showing wages or moneys paid to the plaintiff by his mother and father in respect of work which he performed for the family business operations. This shows that although he was working for the family operations from 1960 to 1970 (when he was married) he was not paid any remuneration by his mother or father. From 1971 onwards, he was paid modest amounts by his parents, which sometimes increased during the high seasonal periods. These were, on average, $20 per week or less. However, there were periods in 1976 to 182 where they reached $40 per week for limited times. These diminished to occasional payments from 1984 to 1986 and then to no payments from 1987 until the beginning of 1990. From 1980, Rodney Consolaro was back at the farm doing some, but not all of the work, but in 1990 his mother persuaded Ross Consolaro to give up his contract driving and come back to work on the farm and take over from Rodney Consolaro and, shortly afterwards, from 1991 on, he was spending most of his time in operating the sandpit, at first on remuneration and then, after about three months under the royalty agreement struck with his father which has been described. That continued until he was locked out of the Walyunga sandpit operations in August 1995 and the major family breakup occurred.

124 Exhibit 4 forms a vital expression of the plaintiff's case, and I incorporate the details by reference as part of these reasons. As already noted, much of the plaintiff's case was devoted to attempts to prove the amount of time devoted to these various activities and the general accuracy of the graphical description in exhibit 4. This task was undertaken by the oral evidence of Ross Consolaro and his wife Judith Consolaro, selections of records of payments and time spent which came either from Ross Consolaro's records or from Mrs Winnie Consolaro's records so far as they have been preserved and, of course, from the broad general descriptions of Ross Consolaro's constant involvement in the family farming operations set out in the statements from friends and neighbours whose statements were admitted by consent without any requirement for cross-examination.

125 By contrast, the case for the defendant was, to a significant degree, evidence designed to refute or undermine the accuracy or reliability of the account given by the plaintiff as outlined in exhibit 4 and in his oral evidence. The defendant's case asserts that Ross Consolaro was remunerated to a greater degree than he has acknowledged. This evidence too relied, to an extent, on the very idiosyncratic records kept by Mrs Winnie Consolaro from time to time so far these have survived, and on the recollections of Norma Gordon, Gail Rudez, Rodney Consolaro, their father Mr Phillip Consolaro and other relatives.

126 Speaking generally, and rejecting as I do obviously partisan evidence, I am satisfied that for the whole of these years, Ross Consolaro worked very hard indeed on all the operations which have been described. He put in long days, he worked after hours when he was an apprentice or privately employed. In addition to the work he did on his own behalf as a cartage contractor, he did a whole variety of other work after hours around the Vine Street farm, at Deepdale, Walyunga and with associated cartage for the fuel depot while that was in operation. Despite criticisms of him by his brother-in-law Mr Rodney Gordon and by Mrs Norma Gordon, I am satisfied that he was a hard and persistent worker over these years.

127 The same can be said of Mr Phillip Consolaro, who has spent a lifetime in hard work. However, in his case, physical incapacity intervened to limit some of his activities. For example, in 1972 with advancing age he became unable to manage the clutch on his big International Ford truck and consequently did less driving or cartage before giving up that task entirely when Ross Consolaro took the truck driving over in 1972. From then on, all the cartage by truck was done either by Rodney or Ross Consolaro. Many people have spoken highly of Mr Phillip Consolaro's lifetime's work and devotion to his property and I do not think that can be questioned or doubted. As he got older, inevitably, he was able to do less and it seems that by about 1980, if not earlier, most of the heavier work was being done by others.

128 Mr Phillip Consolaro and his wife Winnie Consolaro were obviously a very devoted couple. In their own way they strove very hard to make an economic success after poor and difficult beginnings. In this they have succeeded and it is evident that, in a general way, they saw it as part of their method and responsibility that they should try and keep the members of the family together, provide housing or opportunity for their children and rely principally on members of the family for the workforce rather than to pay wages or other remuneration to third parties at rates which they could not afford. This meant that there was a general regime of hard work, long hours and of doing without holidays, travel or what they would have regarded as extravagances. Everything operated at a basic level and thrift to the point of frugality was their watchword.

129 There is no comprehensive set of accounts or other evidence which allows one to trace the increasing value of the family assets, yet it is clear that a steady increase, if only a modest one, was progressively achieved. So much is clear, simply from the history of the ownership of the lands. Mr Phillip Consolaro bought the Herne Hill property in 1938 as described, and progressively paid it off. In 1966 he and his wife were able to purchase the land at Walyunga, even if they had to mortgage Vine Street to do so and again progressively paid off the liabilities. They bought a new home for themselves at Vine Street in 1971 and then purchased Deepdale in 1980. There was no clear reason in the evidence as to why Deepdale was sold, but either it provided an inadequate return, or too heavy a financial burden, but its realisation provided capital for the family.

130 As already noted, in 1976, Phillip and Winnie Consolaro were in a position where they could take, and did take, a very well deserved trip to Europe and visited many of the places of interest and family association. In 1980, Mrs Winnie Consolaro recognised that her son Rodney Consolaro was experiencing financial difficulties and as a result, persuaded him to give up his other job and return to the farm and from then on she contributed to the repayment of the mortgage on Rodney Consolaro's family home. Whether this was paid off entirely by the mother and the father does not appear, but it was a task which Mrs Winnie Consolaro, no doubt with her husband's knowledge and approval, assumed. Shortly after her marriage, in May 1963, Norma Gordon and her husband moved their transportable home to Vine Street and lived there for many years before moving to Bullsbrook where, as already described, Mrs Winnie Consolaro had bought a delicatessen and associated home in which Norma Gordon and her husband lived and worked. After Mrs Winnie Consolaro's death, Norma Gordon and her husband returned to Vine Street and lived in the family home with the defendant before moving to Walyunga in 1996.

131 There is very little evidence of what financial support, if any, Phillip and Winnie Consolaro provided for their daughter Gail Rudez and/or her husband Ante Rudez. I therefore proceed on the footing that no very great provision was made for them and the explanation for this probably is that, comparatively speaking, they were reasonably financially self-sufficient and secure, although this is not meant to imply that they were wealthy or even well off.

132 This same sense of obligation or willingness to provide for close members of the family is demonstrated by the legacy of $10,000 in Mrs Winnie Consolaro's will for Louise Cepo (an amount which I am satisfied would be a large amount in Mrs Winnie Consolaro's estimation at the time the will was drawn), and by the actions of Phillip and Winnie Consolaro in subdividing and allocating the five acres of land at Walyunga to Louise Cepo in March 1992. All of this had to be financed out of what was really a small vineyard and vegetable growing operation at Vine Street, supplemented by revenues from the fuel depot and the wood yard whilst they were operating and from further farming revenues from Walyunga and Deepdale. The sandpit on Walyunga was an additional source of revenue which, as detailed elsewhere in these reasons, produced, for a few years in the late 1980s and early 1990s, some very large cash flows.

133 There was some additional help in carrying on the farming activity, the plaintiff's uncle and his mother's brother, Matt Svilicich (Uncle Blondie) has already been mentioned and he lived at Vine Street and also did occasional work in the vineyard and had a trucking operation. Mr George Klarie, the father of Michael and Louise Klarie, also lived at Vine Street for about six months a year after his wife's death. Quite how long that lasted does not appear but he died in 1981. It is very probable that he too performed occasional works in the vineyard and at the other farming properties as occasion demanded and when he was free to do so. There is also evidence of a number of other men who helped in the vineyard in the seasonal operations at harvest and at pruning time and of someone else who helped in the wood yard when the children were young. I accept that all these contributed to the operation and that they worked at the request and under the direction of Mr and Mrs Phillip Consolaro. Some of them may have been paid. Others may have worked in return for board. Others may have worked simply out of a sense of family obligation. It is impossible to determine the cost and extent of this extra work and labour, but I am satisfied that it was only ever, at the most, at very small monetary reward.

134 The children and the cousins were not expected to pay board for living at the Consolaro home at Vine Street even after they had left school. However, Ross Consolaro says that when he was a young apprentice, he was expected to hand over all his wages to his mother which he dutifully did and that she would then give him a small amount of money which he was free to use for his own purposes and occasional entertainment. Similarly, she gave small amounts of money to Mr Phillip Consolaro for what he needed. It is evident that she expected Mrs Norma Gordon to pay over most of her wages before she was married.

135 When Ross Consolaro did work for the family business, a time was reached in 1971 when his mother agreed to pay him for the work involved. Initially it was $20 per week, although that reduced from time to time. When he was driving a truck and revenue came in associated with the fuel depot, mother and son would identify which was money payable for the family operation and which was money which was payable to Ross Consolaro. A book of account would be kept for Ross Consolaro's entitlements and in this he would also be debited for expenses such as fuel which he took by agreement from the depot for his own use or other consumables and, periodically, weekly or monthly, at mutual convenience, there would be a settlement and Ross Consolaro would be paid what was due to him or, if the balance was the other way, arrangements would be made to pay his mother.

136 Many of these payments were in cash and it was not until after Ross Consolaro was married that he ever had a bank account and then some further time before he had a cheque account. There was no suggestion that Ross Consolaro, his father, or other members of the family engaged in extravagant or expensive pursuits - no gambling, no expensive cars or clothes, nor any other forms of extravagance. Everything operated at a basic level and a very tight hold over the money was maintained by Mrs Winnie Consolaro.

137 All the witnesses, including witnesses from outside the family, confirm that it was Mrs Winnie Consolaro who ran the family finances and ran them with a rod of iron. It was she who made all the financial decisions and who dealt with individual members of the family about wages expenses, or other remuneration and, in doing so was very secretive, ensuring that any discussions or arrangement she had with one member of the family were not known to the others. Mr Phillip Consolaro appears to have taken no close part in any of the family's financial arrangement. Presumably, he was consulted by his wife in a general way about the overall family financial performance; about whether or not a new block of land should be purchased; whether Deepdale should be sold and matters of that sort. However, it is evident that he trusted his wife implicitly and had only a general, and then limited, understanding of his and the family's financial position.

138 Accordingly, in every practical sense, the responsibility of running the family financial operations rested upon Mrs Winnie Consolaro and she guarded that role jealously and undertook it with severity. The operation of the family's enterprises, the provision for her children's families and the way she conducted things, were only possible by keeping a very tight control on expenditure - in effect, by paying sub-economic wages, and by expecting the family to work longer and harder and for less reward than any employees would be prepared to accept. This is a common tale in families in such circumstances, more so when they come from modest beginnings and cherish the ambition of providing for their children after a lifetime's hard work and sacrifice. But it means that for the ultimate goal to be established, the members of the family have to be persuaded, induced or coerced, to accept that lifestyle. In this case most of the Consolaro family were prepared to do this for some time before they married, but after that their needs and circumstances changed. Gail Rudez and Rodney Consolaro moved away and, while Norma Gordon and her husband returned to live at Vine Street, he had an independent income. In view of the deep differences which have arisen, the members of the family, however reluctantly, have been forced to choose sides.

139 All of the children are inspired to a considerable degree by respect and devotion to their parents. In Ross Consolaro's case it is quite evident, despite his exasperation with his father and this long bitter breakdown in relations which has occurred between himself and his father, that he looks on his father with wistful respect and affection which is tempered by the hurt that the paternal rejection has caused. As Cordelia continued to revere, respect and assist her aged and resentful father, Lear, despite all his rejections and criticisms of her, I am satisfied that Ross Consolaro regards his father and hopes against hope for some form of reconciliation. Despite all that has been said and alleged, there is really no reason at all to consider that Ross Consolaro has been unfilial.

140 The real tragedy of the situation is that the family has really not been able to cope or function together since Mrs Winnie Consolaro's death. Martinet she may have been, but she kept everybody in line, doled out the money, kept the peace and was a source of authority which the children, however grumbling, accepted and followed. Mr Phillip Consolaro was simply not equal to the task after his wife's death. Feeling bereaved and having no experience of managing these complicated finances, he has really not understood the position. As he has aged, his understanding has become even more limited and selective and, however it may have been caused, his mind is now filled with mistaken views and prejudices to the point at which he is no longer able or prepared to reason about them. That he should refuse to speak to Ross Consolaro at all after the breakup in 1995, or even meet with his son at the meeting that the solicitors arranged to deal with that problem, is revealing. By temperament authoritarian, no doubt feeling challenged by the demands of a son whose actions were interpreted as entrenching on the patriarch's role, his only response was exclusion. He has kept this up unceasingly all the while living in close proximity with Norma Gordon whose influence has been far from reconciling. His conduct in relation to the administration of Mrs Winnie Consolaro's estate, insofar as that involved the Bullsbrook property, was acknowledged, by the payment of $20,000 to Ross Consolaro, to be unjustified. Similarly, his termination of the sand mining arrangements was sudden and has never been explained or justified, yet the financial consequences, both for the father and for Ross Consolaro have been great. Rather than attempting to recover from these unfortunate crises the antipathy has been maintained and now it is clear that Mr Phillip Consolaro does not know or care where the truth lies. Even if Ross Consolaro's conduct had been deserving of censure, and paternal disapproval, a more reasonable approach for the father would have been to have kept open the prospect of eventual reconciliation. That Mr Phillip Consolaro continues to imagine that the plaintiff is a thankless, disrespectful and grasping son is a terrible and tragic mistake.

The burning of papers after Winnie Consolaro's death

141 Louise Cepo and Gail Rudez gave evidence to the effect that in the days after Mrs Winnie Consolaro's death at Vine Street on 17 October 1993 there was a large scale burning of her papers and records in a barrel in the garden. They say that Ross Consolaro was going through his mother's records and burning large quantities of them. He denies this saying that he did not enter the house at all after his mother's death but, rather, to try and distract himself from his grief on the occasion he was ploughing the land with the tractor. Judith Consolaro and their daughter Kyli Consolaro each were there on the day of her death and confirm that Ross Consolaro was very affected by his mother's death and would not go into the house where she died at all but rather was attempting to distract himself by ploughing the land. They say that there was fire in a drum or receptacle in the garden of the home and that Louise Cepo and Gail Rudez were burning papers, going through the house, taking clothes, linen and the like. Gail Rudez and Louise Cepo each maintained that they were in their mother's home immediately after she died and were going through things, cleaning out and making arrangements to distribute clothes, personal belongings and minor items. They say that there was a fire burning in a bin in the garden and that they were taking rubbish, various papers and the like but that Ross Consolaro was going through the room where his mother stored her records and burning quantities of records on a large scale.

142 There seems to be no doubt that members of the family were tidying up after Mrs Winnie Consolaro's death and it would not be at all surprising if her daughters took minor items of clothing and personal effects as mementos or for use for themselves or their children. Nor would it be surprising if, after a lengthy illness, it was necessary for some accumulation of materials to be tidied up or destroyed and in the process burned. None of that is uncommon or improbable. Gail Rudez and Louise Cepo, however, deny that Ross Consolaro remained outside on the tractor and say that he came into the house and went through things with them and was also involved in burning a large quantity of materials.

143 This controversy is not directly relevant to any issue in this case except to the extent that it suggests that, because of the destruction of the records, a proper accounting of the financial position of the family, of payments made to Ross Consolaro and to others and the extent of time that he had been working in the family enterprises is no longer possible. Further the implication in this evidence from Gail Rudez and Louise Cepo is that Ross deliberately embarked upon a course of destroying records with a view to substantiating or improving his position. To the extent that the controversy relates to this later issue I do not accept that there was any deliberate destruction of records by the plaintiff.

144 The situation as it stood in October 1993 when Mrs Winnie Consolaro died was that Ross was still hoping and expecting that the promises which his mother had made to him on behalf of herself and his father would be fulfilled. He certainly had some concerns as to whether or not they would be fulfilled because he had taken steps shortly before her death to lodge a caveat against the Vine Street property when he learned that there was a possibility that it might be sold or leased to the oil company Omex. However, there had been no open breach at that time between Ross and either his mother or father. Ross was, in 1993, still working in the vineyard at Vine Street and doing sheep, cattle and general work at Walyunga as well as spending most of his time working in the sand pit under the royalty arrangement agreed with his mother and father. Although Ross had hoped that the promises to see him recorded as a co-proprietor of the family lands would have been honoured before then, he also believed and hoped that, if anything happened to his mother she have would ensured that those promises were fulfilled by her will. According to Ross he had been told by his mother that she would provide for him by her will and that his father had made a will to the same effect but, otherwise, he was not aware of the contents of either will.

145 According to Ross Consolaro there was no reading of his mother's will after her death and he did not learn of the contents of the will until later through solicitors. I have no doubt that the plaintiff was very deeply affected by his mother's death even though her fatal diagnosis had been known for more than five years and when, it seems probable, she must have been very ill immediately before her death. Such was Mrs Winnie Consolaro's position in the family as the pivot about which everyone moved, and so important and profound was her influence that I have no doubt that all members of the family were greatly affected by her passing.

146 Now, many years after her death it is not possible to be sure whether or not Ross Consolaro entered his mother's home in the days when his sister and cousin were going about the operations after her death or whether he did not. It would not be surprising if he did not go in if only to see what his sister and cousin were doing and he may have helped them to some extent in their task. But nothing seems to turn on this imagined controversy because there could be no reason for Ross to set out to destroy his mother's records or parts of them at that time. If anything his interests lay in the preservation of the records so that, if necessary, the true state of financial affairs could be identified and confirmed. But there was simply no issue in existence at that time which would lead anyone to attempt to destroy records to advance their personal interests or to hinder others. Whatever may have happened cannot have been anything more than an impulsive bout of activity undertaken conscientiously by people affected by grief who thought that a general tidying up was appropriate and without any view to financial advantage.

147 That this episode about the burning of the papers has been seized on and presented in this trial as some demonstration of misconduct or self serving activity by the plaintiff says more about the attitude of the other members of the family concerned than it casts light on any of the issues in the case. Clearly, the disputes which subsequently arose, and the claims, including the two legal actions which Ross Consolaro brought against his father in association with the administration of the mother's estate over the Bullsbrook delicatessen and the Walyunga sand pit operations have placed the plaintiff in an unpopular role in the views of his father, and of Mr and Mrs Gordon. I am satisfied that his younger brother Rodney Consolaro, although obviously disapproving of the plaintiff's conduct in bringing and pursuing this action, is actuated more because of his belief that this fails to show traditional respect for their father than because of any unequivocal misconduct by the plaintiff.

148 These allegations of deliberate destruction of financial records by Ross Consolaro should be rejected but they do indicate a readiness to discredit him by every possible means, and in this case unjustifiably. They are another example of family folklore which seeks to demonise the plaintiff, rather like the allegations that he built on the Vine Street land in 1976 without his parents' knowledge and approval without any payment and in order to trick his father into being forced to give him some of that land. I have concluded that there is no basis upon which the plaintiff's conduct can be criticised because of the allegations arising from the burning of papers immediately after Mrs Winnie Consolaro's death.

149 The promises described by Ross Consolaro made to him by his parents occurred over a long time from when he was quite young, well before he was married until the more detailed and specific promise made to him by his father after his mother's death in late 1993 or early 1994. A common feature of the promises as they were described is that they were all made in circumstances where it was obvious that they would be an incentive to the plaintiff to persevere in the hard work in which he was engaged, to endure immediate financial disadvantage in the knowledge that in the not too distant future his efforts would be rewarded by him becoming a co-owner of the family land or, as it was usually described, by 'putting your name on the title'.

150 The earliest promises described by the plaintiff were made during the period of his apprenticeships between 1964 and 1969. At the early stages of his apprenticeship with S & M Carrati in about 1964 Ross was paid £5, 12 shillings and six pence per week all of which he gave to his mother and in return was given 10 shillings per week for his own use. On completing his apprenticeship in 1969 his earnings increased to about $20 per week, but again all of this was given to his mother for general family purposes and he was given back $2 per week for his own use. During this time, his mother would tell him that the family was 'broke' but 'all of this will be yours one day'. On completing his apprenticeship in 1969 he went to work for H & R Martin & Sons where he was earning $40 per week and by now was keeping all his earnings. However, after about six months in that employment Mrs Winnie Consolaro came to the work premises one day crying and begged Ross Consolaro to come home and work on the family property. Her explanation was that she and his father could not afford to keep the property unless he gave up his job and came back to work for them and that if this did not happen they would have to sell the land. At the time she explained that she and Mr Phillip Consolaro could not afford to pay Ross properly but she offered to pay him some wages when she could but promised that she and his father would 'make sure my name went on to the title of the vineyard when they got on their feet'. With these entreaties Ross did give up his job at H & R Martin & Sons and went back to work on the family properties.

151 Ross and Judith Consolaro were married in 1970 and were told by Mr and Mrs Phillip Consolaro that, as a wedding present, they would be given a block on the Vine Street vineyard upon which they would be able to build their family home. They moved into the property on Vine Street which had been vacated by their mother and father when the parents' new house had been built, and remained there until they built their own house in 1976 as described elsewhere. Not only was the site and the building of Ross Consolaro's home on the Vine Street property to become an issue in this litigation but the promise made that the land would be given to them as a wedding gift was never fulfilled. They were required to purchase the land for $3,000 as described and this money was paid in April 1976 before the parents left on their overseas vacation and no building work or preparations were permitted until the money had been paid.

152 After his return to the farm on giving up his position at H & R Martin & Sons in 1969 Ross Consolaro performed a variety of work on the family properties, the Vine Street vineyard, the fuel depot, and Walyunga farm without pursuing any independent commercial activities of his own. For these services he was paid on average $20 per week by his mother but this was insufficient for the support of himself and his wife and he needed greater income. In about 1971 Ross Consolaro discussed this with his mother in the hope that she would increase the $20 per week payment. She refused and there was an argument and Ross Consolaro decided to go and take a fulltime paid job loading bricks at Midland Brick. He did this and followed that employment for about three weeks but his mother came to his house and pleaded for him to come back to work at the farm because his father could not do it all himself. According to Ross Consolaro, Mrs Winnie Consolaro said that if he did return to work for the family she would make sure that his name went on the title to the farm after they had picked and dealt with the currants and wine grapes for that season. She promised Ross Consolaro that she and his father would then go down and put his name on the title to the farm. He agreed and accepted his mother's promise, gave up his job at Midland Brick and returned to the farm to work again on the same terms as before, that is doing work at Vine Street and at Walyunga all for $20 per week.

153 At the end of that season the title to the land was not transferred and Mrs Judith Consolaro was due to give birth to her first child. Ross Consolaro had been supplementing his income by using his uncle's truck (Matt 'Blondie' Svilicich's truck) for which he had been paid a wage by Blondie. However, by that stage his father was having difficulties in driving his truck and wanted Ross Consolaro to take that role over. That meant stopping driving Blondie's truck and giving up the supplementary income and continuing for no more than $20 per week. Again, because of these financial difficulties Ross Consolaro got a fulltime position with Midland Brick for a second time in 1972, on this occasion loading bricks onto the conveyor belt. Once more his mother came to his house after about two weeks and pleaded with him to come back. Initially he declined and told her that the previous promise had not been honoured. She persisted coming to the house several times over about a week pleading with him to give up the Midland Brick job and to help her and his father saying, 'everything will be different this time - you will see. We'll make sure it happens this time when the crop is in. If you don't come back we will have to sell the farm and everything'. Once more Ross Consolaro gave up this second job with Midland Brick went back to working fulltime for the farm and started driving his father's truck. He was being paid the same $20 per week by his mother until 1976 and continued to work on carting the sand, clearing work on the farm, work at the fuel depot and the vineyard and maintaining and repairing all the vehicles and machinery.

154 During 1974 Judith Consolaro brought Ross a small flat-top truck and with this he was able to do a variety of delivery work on his own account in return for earnings. The result was that his mother reduced his weekly payments of $20 saying that he was getting enough from his market run and that she would not pay him while he was doing that but when that activity stopped she would pay him the $20 again. Her explanation was that this was all that she could afford. Ross Consolaro said that his mother told him that she could not pay him when he was earning money anyway and give him the land as well. According to her that would be double dipping. She said that she would only pay him in the off-season (that is from early April to the end of October each year). This reference to giving him the land as well, in the context, was an affirmation of the earlier promises about having Ross Consolaro's name placed on the title.

155 This pattern of expecting Ross Consolaro to work or else the family would lose the property began at a very young age. According to Ross Consolaro when he was only 12 (that is in 1960) he used to have to help in the wood-yard throwing wood on the truck after school, whereas neither his brother nor sisters were expected to work. Occasionally Ross would complain about being the only one required to work only to be told by his parents 'this will be all yours one day' and that if he did not work the family would have to sell the property or else go broke.

156 Another example of a promise to the same effect occurred shortly after Ross' marriage to Judith when they both went and lived in the old house at Vine Street. This must have been in about 1970 or 1971. The plaintiff described how, after settling in to that house, he discovered that the electric power for the petrol bowsers and the shed servicing the fuel depot came through the meter of that house and that the bills for his own domestic electricity consumption included the cost of power for those business services. He asked his mother about this to be told that he should not worry because she and his father had agreed to put his name on the title so he would not be missing out. He asked when his name was to be put on the title and received the reply that it would be done when they sold the cows or when we sell the currants, 'you are going on the title and can wait a bit and we will do that next'.

157 During the period 1970 to 1980 Ross Consolaro was devoting most of his activities to the family farming properties only working about six hours a week on his own deliveries from 1974 to 1980 and beyond. During those years his younger brother Rodney Consolaro had married, left home and was living in Osborne Park and later Wanneroo pursuing an independent occupation. According to Ross Consolaro he spoke to his mother and father shortly before their departure on their world trip. He places the conversation in about 1975 and it is possible, indeed probable, that it may have been in 1976. He was dissatisfied with the fact that he did all the work on the family properties, that Rodney Consolaro was not involved in helping and that he was not paid a fair amount for his activities. In particular he asked his mother and father what would happen if something happened to them while they were away. According to Ross Consolaro, in this conversation with his mother and father together, they replied by saying that nothing would happen to them, that they would fix up the position when they got back and could not worry about it then as there was too little time. They assured him not to worry and that they would put his name on the title.

158 Ross Consolaro gave detailed evidence about the nature and extent of the work which he did on the family properties from 1968 onwards which included sowing a hay crop each year, cutting the flat paddock at Walyunga until the purchase of Deepdale in 1980, cutting meadow hay at Deepdale and carting hay with his cousin Michael Klarie. Also included was general farm work including repairs to fixtures, gates and fences, repairs to equipment, general farm labouring and stock husbandry, cutting fire breaks and a variety of other work. Ross was dissatisfied that it was he that was doing the lion's share of the work with little or no contribution, either in the form of work or financial income from the other children. He complained about this only to be told by his mother and father that he would get a greater share than the others since they were not doing the work.

159 Not unnaturally Ross began to become dissatisfied with these promises that were not fulfilled and would raise the same issues with his parents again about how he did most of the work but did not get paid very much and that his name was still not on the farm title. He explained that he was unable to keep doing this because his own finances and family were in financial difficulty. He explained that his father and mother would tell him that he should not worry, that they would not let him miss out and would put his name on the title with them as previously promised. They told him that they would let him have the crop (currants and wine grapes) and would even help him do it, but when the proceeds of harvest came he never shared in them. On further remonstration he was told by his mother that she knew that she and his father had promised him the money but they needed it for superphosphate, or the new tractor, or for rates or for more cows but that he should not worry because he will still get his name on the title with them both as soon as that could be done. This was said in the presence of the defendant who, according to Ross Consolaro, would indicate his agreement.

160 The promise always was that his name would be put on the title with the parents and that he should just have to wait until the crop was harvested, or the cows were sold or some other income producing activity was completed. Again, however, nothing ever happened and he did not share in the proceeds of the harvests or the sales as the case might be. When Ross asked his mother why he was not paid any crop money and why his name had not been put on the title he was told that she had needed the money to pay rates and taxes and that he was getting the benefit anyway because he owned the land with them even if his name was not yet on the title. He accepted this and continued to work for little remuneration on the strength of these repeated promises. Not only did he work on the properties as described but he did extensive mechanical work on the equipment and in particular on the International Harvester truck, replacing the motor, twice changing the bearings and the brakes, replacing the gearbox and clutch and putting on a new tipper, all without payment.

161 During 1979 Ross Consolaro again raised with his parents his concern that he was not getting enough money to live properly and that it was not fair because he needed to go outside and get a proper paid job so that he could look after his family. One of these conversations occurred in the truck with his mother and father driving up to Walyunga. In his father's presence Mrs Winnie Consolaro said to the plaintiff that if he could stay working with them they would put his name on the Walyunga farm and that Rodney Consolaro could have the vineyard after they died and the girls could share the cash. Something to that effect had been said before and Ross Consolaro replied by saying that that promise had been made before but nothing had happened and demanded to know when his name would be put on the farm. His mother replied that she and her father would go down and do it after the crop was in.

162 By 1980 the younger brother Rodney Consolaro had got into some financial difficulties and Mrs Winnie Consolaro persuaded him to come back and work at the family properties, in effect to do what Ross Consolaro had been doing and said that she would pay him. This occurred and, it subsequently emerged that in addition to making payments to Rodney, Mrs Winnie Consolaro assisted in paying off the mortgage on Rodney's home and discharging some of his other debts. Ross went and sought work outside the family and began working for Swan Settlers as an owner/driver doing deliveries as well as continuing to perform much of the farm work. This was from late 1979 onwards. It was not possible for Rodney to do all the work that Ross had been doing because Rodney did not have a truck driver's licence for about 12 months and Ross had to continue with the sand carting as well as additional vineyard and fuel carting. So, after Rodney was back working at Vine Street and at the other properties Ross continued to do sand carting for another year, helped in the vineyard and at Walyunga, helped on the Deepdale farm and continued to do all the mechanical repair and maintenance of the vehicles and plant, but without payment for any of those activities.

163 In about 1990 Mrs Winnie Consolaro again approached Ross to tell him that she was 'broke' and was no longer able to support Rodney financially. Revenue from sales of sand, cattle and other activities had diminished and the medical treatment following her diagnosis with cancer in 1987 had become expensive. Mrs Winnie Consolaro asked Ross to give up his job as a carrier with Swan Settlers so that Rodney could take that over and support himself and he, Ross, could come back and re-open the sand pit business and restore it to a profitable operation. What then happened is described by the plaintiff in exhibit 3A at pars 91 - 93 as follows:

1. I had a substantial discussion with mum and dad at this time. I said that despite all the previous promises they had not put my name on the title, and that she didn't pay me enough to live on. Mum said - I can't pay you a full wage and also put your name on the farm title as well. That's double dipping. If you come back and work for us again we will pay you a small wage, but we will make sure your name gets on the farm title with ours, we will do it as soon as I get on my feet again.
2. I believed mum's promise. I believed she seriously intended to put my name on the title. On reliance on this promise, I arranged for Rodney to take over my well paying carrier job with Swan Settlers and re-opened the sand pit business.
3. When I did so the sand pit and premises were in a state of disrepair. I had to tidy the sand pit, remove rubble and clear a track into the sand pit. During the first six months of the sand pit being re-opened, it generated little significant income and I received no wages from mum at all during this time.

164 The time/event activity sequence chart prepared by Ross Consolaro (exhibit 4) shows that his contract cartage work fell off dramatically in 1990 and that after five years of not working at the sand pit he began working there most of the time. As best he can determine he was paid about $100 per day for three months in 1991 and thereafter occasional payments in 1993 and a $1,300 one-off payment in 1994. However he was, of course, deriving income from a share of the sand pit operations.

165 Shortly after Mrs Winnie Consolaro's death in October 1993 or in early 1994 Ross had a discussion with his father about the continuation of the sand pit business. Mr Phillip Consolaro wanted the plaintiff to continue to carry on the sand pit business and proposed a commercial arrangement under which Ross would get a specified rate per cubic metre for the sand sold from the sand pit. At the time Mr Phillip Consolaro was preparing to go to Italy for a visit with his daughter Norma Gordon. In the course of these discussions leading to the agreement that Ross would continue working the sand pit, Mr Phillip Consolaro told him that since he was the one working on the farm he, Ross, would get a greater proportion of the land than his other children and that he wanted the land to be kept in the family after his death. According to the plaintiff his father was concerned about the intervention of other members of the family especially Norma Gordon. It was this discussion that led to the arrangement for Phillip Consolaro to be paid a royalty for the sand sold without himself being required to work on the enterprise and father and son signed a brief agreement to that effect in early 1994. More details of these promises are contained in exhibit 3A pars 147 - 160.

166 After Mrs Winnie Consolaro's death Ross suffered a minor injury while working on the farm and was off work for about six weeks. It was during his convalescence that Mr Phillip Consolaro asked Ross to accompany him to a meeting with his solicitor to discuss the mother's will. By this time Ross had obtained a copy of the will and he attended the meeting with his father, his son Wade Joseph Consolaro and his sister Norma Gordon. He said that he learned that his mother and father were joint tenants of the land and he believed that his father was then entitled to become sole proprietor of the land. It was at this meeting that Ross learned that Norma Gordon was claiming all of the land in Bullsbrook and was advised that this could not be done leading to the dispute about the Bullsbrook property and eventually the settlement with payment of $20,000 from the estate to Ross Consolaro.

167 On discovering that after the father's life interest in the family properties all four children would share equally Ross appreciated that he was to receive nothing extra for all his unpaid or underpaid work which had been undertaken on the promise that it would all be his one day and thereupon he told his father that he was no longer willing to work on the family properties for no or little pay and empty promises. The plaintiff described the position as follows:

1. I was angry about this as it was not what she had promised, she had said I would go on the title with them and that did not happen.
2. I went to dad and said I am not working any more for empty promises. You and mum promised to put my name on the title and it didn't happen. Dad said don't worry I'm fair. We'll keep our promises about the land. I want you to work the sand pit while I go away to Italy and I want you to keep the farm after I die.
3. I reminded him how he and mum had so often said when I wanted to take the wife and kids to the beach or a picnic or a movie, We need you to do this - - or move the cows, or fence, or cart the hay or - - - or we'll go broke. But you will get the farm land whereas the other kids won't so you're not missing out really. Dad said - Don't worry, we keep our promises, you'll get your name on the land.

168 On that basis Ross accepted his father's assurance and continued to work the sand pit at Walyunga under the royalty sharing agreement as well as performing cattle, sheep and general work at Walyunga and work on the Herne Hill vineyard as depicted in exhibit 4.

169 On this basis Ross continued these operations until the big break-up in August 1995. I am satisfied that Mr Phillip Consolaro's accusations that Ross was 'fleecing him' or earning disproportionate amounts from the sand operations, or in some way stealing from him were utterly unfounded but were largely based on insinuations made to the father by Mrs Norma Gordon. This is all most unfortunate. Ross was not given any opportunity to explain or to refute the allegations and from 1995 onwards his father simply refused to speak to him. I am satisfied that by then Mr Phillip Consolaro's understanding and judgment, which always had been rather superficial when it came to the financial side of the family arrangements, was unreliable and probably impaired. He assiduously accepted the unjustified criticisms which had been aired against Ross and convinced himself that his elder son had betrayed him. His response was to break off all relations with the plaintiff.

170 In the action, in the pleadings, and also in the course of cross-examination the defendant maintained that promises of the kind alleged by the plaintiff had not been made, or that if they had been made they were no more than general parental encouragement without ever being intended to convey or have a binding effect. After this length of time one cannot, of course, be sure that representations as described by Ross Consolaro were made word for word or exactly on the occasions when he has identified and no others. However, I consider that Ross has given honest and reliable evidence in this case and that, generally speaking and within the accuracy of memory after so many years, that his evidence is substantially correct. I have no doubt that promises along the lines described were made. There is really no other explanation for Ross staying to work virtually full time on the properties for uneconomic remuneration except for the assurances that he would be rewarded appropriately to compensate for the difficulties which he and his family were enduring. I also accept that the promises which were made were to the effect that his name would be placed on the title together with the names of the mother and father, that is that he would become the owner of an equal one-third share and that in this regard he would be preferred to the position of the other children because of all the extra work that he, unlike most of them, had performed and were expected to perform.

171 It is quite evident that Mrs Judith Consolaro was dissatisfied with the arrangement and repeatedly questioned her husband about the wisdom of relying upon these promises particularly after they went unfulfilled for so long. Her experience with the difficulty of obtaining a secure title to her family home was enough to cause her to regard these promises with great reserve. Not unnaturally she wanted her husband to be financially independent with a secure income so as to be able to provide for them both and for their two children. Added to this was the fact that she was not treated kindly by Mrs Winnie Consolaro and continued to be treated as an outsider by the rest of the family. The forbearance of Mrs Judith Consolaro and her husband in continuing with this unhappy state of affairs over the many years from 1970 onwards can only be explained by acknowledging that she and her husband both accepted that, notwithstanding their year to year difficulties, there was a real reason to hope that a more substantial reward would soon be forthcoming.

172 All the promises were to the effect that Ross Consolaro's name would be placed on the title at some time in the near future - after the harvest, after the payment of the rates, when the present difficulties had been successfully encountered and so on. No particular date was ever set but the promises were not made or accepted on a footing that the plaintiff's name would be placed on the title when mother or father died, or at some other distant point in the future. Performance was at a relatively short term horizon which kept being postponed. This is of significance as to when any equity generated by these promises would be expected to have arisen, and in particular whether it should be deferred until after Mr Phillip Consolaro's death, if it exists at all.

173 In my view the evidence supports the conclusion that the promises made were to the effect that Ross Consolaro's name would be put on the title in the immediate future, that is within the current year in which they were made, but this was never done. At the very latest the promises made called for fulfilment on the death of whichever of the parents were first to die which, in the circumstances, meant by October 1993 at the latest. It is noted Mrs Winnie Consolaro's will made no recognition of these promises or any additional entitlement for Ross Consolaro but it was, of course, made in 1976. Before and after the date of the will such promises had been made to Ross Consolaro and had been acted upon by him. The will was made on 11 May 1976, just before the departure of Mr and Mrs Phillip Consolaro on their overseas trip which, as Mr Phillip Consolaro's passport shows involved their departure from Australia in time to arrive at Southampton in the United Kingdom on 21 June 1976. It is very probable that the making of the will was part of the preparations for the overseas trip and this of course coincided with the building of Ross and Judith Consolaro's home on Vine Street. A will made in those terms in 1976 is not inconsistent with the existence of the promises, nor an obligation to fulfil them nor indeed, of an intention to fulfil them. Ross Consolaro's name could have been put on the family properties at any time.

174 There were, however, unknown to the plaintiff encumbrances on both the Vine Street property and Walyunga in the shape of mortgages which have previously been described. No doubt it would have been possible to have a third interest in the land transferred into Ross Consolaro's name either subject to the mortgages or for him to become party to new mortgages but that was never raised and it was not Mrs Winnie Consolaro's style to discuss financial arrangements of that kind with any of her children. It is unnecessary to give further consideration to the effect of the mortgage encumbrances of the properties because the plaintiff accepts that, if the equity which he advances does exist and that he should take a one-third interest in the Walyunga property it should be subject to the existing mortgage.

175 It is not possible to say for what purpose the various mortgages were taken out or how they were satisfied. The appearances are that the Vine Street property was purchased on terms and paid off over a long period. Then when Walyunga was purchased in 1966 the Vine Street property was transferred from the sole proprietorship of Mr Phillip Consolaro to the joint ownership of Mr and Mrs Phillip Consolaro and both parents were registered as proprietors as joint tenants of Walyunga subject to a mortgage over both properties. The probable inference is that the mortgage was raised on both Vine Street and Walyunga to finance the acquisition of Walyunga and that the mortgages over both properties were steadily paid off by combined business income from all family operations.

176 The next major acquisition was Deepdale in 1979 but that was sold in 1988. Again, it is not possible to tell why it was sold or what was done with the proceeds but it seems likely that money was needed to defray the debts on the mortgages of the other properties and to relieve the parents from their efforts to assist in the restoration of Rodney's finances. The next acquisition was the house and delicatessen at Bullsbrook purchased in Mrs Winnie Consolaro's name for about $40,000 in 1985. After Mrs Winnie Consolaro's death that and the delicatessen business were sold, generating the dispute between Norma Gordon and her father on the one hand and Ross Consolaro on the other about the entitlement of the estate to the proceeds but, subject to paying $20,000 to Ross Consolaro as a result of the settlement of his action, the balance of the proceeds of the sale all went to Norma Gordon.

177 Then in 1996 Mr Phillip Consolaro sold the Vine Street property (except for the subdivided lot then registered in the names of Ross and Judith Consolaro) as by that time he was living at Walyunga in the same household as Norma and Robert Gordon and their family. There is no evidence of what became of the proceeds of the sale of Vine Street but whether they were used to reduce borrowings on Walyunga or solely for the benefit of Mr Phillip Consolaro does not seem to matter because, whichever was the case, the land remaining at Walyunga is all that remains of the family properties which were operated in combination during Mrs Winnie Consolaro's lifetime and when the various promises were made. As both Walyunga and Vine Street were owned by Mrs Winnie Consolaro and Mr Phillip Consolaro as joint tenants the entirety of those properties passed to the defendant upon his wife's death and does not form any part of her estate for distribution, after his life interest, to the four children.

178 Returning to the question of whether or not the promises which were made were intended to be serious and to generate obligations, the defendant's contentions that they were, in effect, only voluntary family promises was addressed by Mr Ross Consolaro in exhibit 3A at pars 154 to 156 as follows:

1. The details of the Defence in the action claim essentially that I was brought up in the traditional Italian manner. Curiously we children were in fact brought up principally in the Slavic tradition and culture. Only dad spoke Italian. Even mum did not speak Italian. Dad could speak Slav though, as can all we children, though none of us can speak Italian either. In any event my father suggests that the sort of work I did and the remuneration was what was traditionally expected.
2. In the very early years as a child, that no doubt was true. However when I became an adult and especially after I was married and started my own family. These were not mere domestic or internal family traditions anymore. I specifically raised the fact that I was doing all the work, but not being paid a reasonable sum for it, if at all, and that something quite specific had to be done properly to fix that as my family depended upon my earnings. I made it quite clear that I would have leave as the main family working on the vineyard, sand pit and Farm to early myself and my family a proper income.
3. Both mum and dad appreciated the need for me to protect my own family financial interest, they agreed that something had to be done, or I would indeed have to go and work outside the family to support my own family. Then they would have to hire someone and pay a proper wage in any event. Instead they proposed that, rather than me going outside, they would do two things, one specific one more general:
   1. That they would put my name on the title of the Farm after the winter crop was in, and
   2. They would try to make it possible for me to have at least some earnings somehow from the various activities.
4. This was not an idle or light promise. It was specifically promised that my name would go on the Farm title next winter when the crop was in. At the very time of that promise I told them that I would be relying on and insisting on it. They both assured me that it would happen, and plainly had an intention to affect their financial rights by fulfilling the promise. They said they would keep their promises.

179 I accept this as the essential truth of the position. Ross Consolaro was torn between choices to continue the family tradition and maintain his sense of duty and filial respect, and the necessity to support his family. It had always been his hope to work on the farm and to take over his father's role but he simply could not afford to continue working for the low wages which were all that his mother could pay him. He needed the assurance of something more and he sought it and got it. Having got it he relied upon it and gave up the alternative of making his own way in the world. In doing so he gave up the hope or certainty of earning a better income for himself, his wife and children from regular external employment. He was content to do this and in doing so acted in a way which renders it inequitable for the promises now to be withdrawn or left unfulfilled. He acted in reliance upon the promises and forsook other opportunities and must be regarded as having made a far less advantageous financial choice which he accepted right through until 1995. Even then it was his father who terminated the arrangement and not him for I am satisfied that he would have continued to work on the sand pit and at Vine Street on the strength of his father's promise although, no doubt, becoming ever more insistent that something be done to fulfil the promises.

180 No doubt it was this insistence and not infrequent bouts of impatience by Ross Consolaro that nothing was being done to fulfil the promises and put his name on the title which caused some irritation within the family and which, possibly, contributed to the father's misconceived impression that he was grasping and selfish. I do not consider that Ross Consolaro's conduct can, or should, be described in that way. It was entirely legitimate for him to be seeking to protect himself and his family - the more so in the light of the repetition of the promises. Perhaps it was the case that financial stringencies meant that it was difficult or inconvenient for his parents to act on the promises and fulfil them but I cannot avoid the conclusion that when it came to making payments or gifts, both Mr and Mrs Phillip Consolaro were far more reluctant to honour promises than to make them. Perhaps this was the product of a lifetime of frugality but promises of this importance, where acted on and generating an expectation which has caused the promisee to forsake other real opportunities, should not be neglected. If they are neglected and the promisee expresses irritation or impatience about this, that irritation or impatience is no legitimate ground to reject the promise or to asperse the promisee.

181 Just one example among many of Mr and Mrs Phillip Consolaro's stringent attitude towards money is provided by the arrangements which Mr Phillip Consolaro made with respect to rates and taxes on the subdivided lot at Vine Street on which Ross and Judith Consolaro's home was erected. The long story of the delay in obtaining the subdivision of that land from 1976 until 1994 has already been set out. However, when the land was eventually registered in Ross and Judith Consolaro's name in 1994 Mr Phillip Consolaro made arrangements with the Shire of Swan that the unpaid rates for that portion of the block should be calculated and charged to Ross and Judith Consolaro on the basis that they had been living in the house all that time and that, accordingly, they should pay its share of the rates for the entire property. No particular complaint is made about this by Mr Ross Consolaro but it does reveal an attitude to money bordering on the parsimonious and a disposition to dilute the performance of a long standing obligation.

182 The action was advanced and the trial conducted essentially on the promises as described by Ross Consolaro in the course of his evidence and which I accept. The passages in the statement of claim relating to the promises have already been set out. Briefly they contend that between 1966 and 1993 Mr Phillip Consolaro and Mrs Winnie Consolaro at intervals of generally not more than three months persistently represented to Ross that if he carried out the various farming activities he would receive an interest in the land as beneficial co-owner and would be registered on the title without delay. The land referred to in the pleadings the subject of that representation is Walyunga although I consider that the representations, as made, effectively referred to all the family farming lands then on hand from time to time.

183 It is equally clear that not only did Ross Consolaro act on the faith of the promises to refrain from pursing other commercial activities himself to the exclusion of the family, he continued to perform work and outlay money for no immediate return on the family and farming operations. This is evident from his performance of carting and carrying operations and working in the vineyard without any remuneration from 1980 onwards even when his brother Rodney Consolaro was back ostensibly working full time on the family operations; in continuing to do the mechanical repairs and maintenance on the equipment and vehicles; and in meeting the electricity charges for the fuel depot and shed while living in the old home before 1976.

184 By and large the position adopted for the defendant in the pleadings, in the course of the cross-examination and by the evidence of himself and his witnesses was to deny that any promises as alleged were ever made and to attempt to refute or diminish the extent of the activities performed by Ross Consolaro and his wife in and around the family properties over the years. There were, in addition, some particular allegations to do with the building of the house for Ross and Judith Consolaro at Vine Street, and the lodging of caveats on the Vine Street property and at Walyunga designed to attack the credit of the plaintiff more specifically. These included the allegations that he had participated in the deliberate destruction of the mother's financial records in the fire at Vine Street on the day following her death. However I reject these and consider that they cannot be believed and that the evidence in support of them is, to say the least, unreliable.

185 In her evidence Mrs Norma Gordon stressed that she, her sister Gail Rudez and cousin Louise Cepo also all had to do work in connection with the family operations at Vine Street from early ages. She emphasises that, as a young girl she was constantly required to help her mother look after the younger children, do housework and a variety of other tasks in and about the house and, to a smaller extent in the vineyard. She considered that the girls were all expected to do this work and that it was important and vital to the family operations even if it did not involve heavier work in the vineyard or the farms. I accept that she and her sister and cousin did do a lot of work helping their mother in and around the house and that she, in particular, had a major role in caring for the younger children when they were small.

186 Mrs Gordon also explained that when she and her husband were married on 4 May 1963, her parents promised them that they could have a quarter acre block of land on the Vine Street vineyard for their home. Immediately after the marriage, Mr and Mrs Gordon went to live at Bellevue, apparently on a transportable house, but not long afterwards the transportable house was moved to the Vine Street property and placed on an area fronting Great Northern Highway. Mr and Mrs Gordon lived there in close proximity to the Consolaro family until they later moved to Bullsbrook in 1985. The block on which their transportable house was placed at Vine Street was, however, never transferred to the Gordons. According to Mrs Gordon this was because the Shire of Swan refused to approve any subdivision to allow for that block and attempts to obtain approval were apparently not pursued.

187 She also says that when she was working as a young woman before her marriage, she was earning about £10 a week and paid most of this to her mother as board. She says that all the children, when earning, were required to pay board. She was employed in a secretarial position at Bell Brothers and also had a part-time job as an usherette at the Midland Cinema. Despite paying the required board, she was saving from her wages and, according to her, at the time of her marriage in 1963, even after purchasing the transportable home described, she had net savings of about £800. She was persuaded, if not directed, by her mother to lend that money to her aunt Kate who was experiencing financial difficulties at the time. Despite the transaction being described as a loan, it was never repaid.

188 According to Mrs Gordon, Ross Consolaro did not pay for the fuel which he took from the fuel depot. She says that her mother bought all of Ross' clothes and gave him money from time to time and that she frequently saw her mother giving him cash or cashing cheques for him. I do not accept the implication in this evidence that Ross was being favoured in the way suggested. The documentary evidence, such as it is, shows that a running account was kept of fuel purchases for which Ross was charged and which he would satisfy either by payment or set off against earnings which he was allowed for cartage operations performed for the family and, in particular, for the cartage for the pick-up of fuel drums from the Fremantle depot and the return of empty drums to that depot. The evidence does not allow any clear demonstration or reconciliation of these accounts, but it does provide some confirmation for Ross Consolaro's evidence that he was charged for fuel by his mother when conducting his own cartage operations. A possible explanation for the evidence of Mrs Gordon in this regard, however, was that fuel used for his father's truck when Ross was using that to do deliveries or to undertake cartage for the family business, was not charged to Ross personally, but was an expense to the parents' partnership. Accordingly, there would have been occasions when Ross fuelled his father's truck for the parents' partnership operations, which he was engaged to perform, when he did not personally make payment, but these too were recorded in the fuel tallies which were kept by Mrs Winnie Consolaro. Ross Consolaro has said, and I accept his evidence, that he was never permitted to use his father's truck for his own personal cartage operations or business, only for the family business operations. This is why Ross was using his uncle Matt's truck (Blondie's) to do his private cartage operations before 1974 when he first acquired a truck of his own.

189 Mrs Gordon has also said that she bought the Bullsbrook delicatessen property and shifted in during 1985. I accept that is when she and her husband moved from the Vine Street property to Bullsbrook, but that property was purchased in the name of Mrs Winnie Consolaro and it was her money which was used for the purchase. This is evident from the partnership accounts for Mrs Winnie Consolaro and Norma Gordon, which are part of the defendants' documents including the partnership income tax return for the Bullsbrook delicatessen for the year ended 30 June 1989, defendants' documents 7 and folio 7. Mrs Gordon describes an argument which she had with her mother sometime after 1985 because Mrs Winnie Consolaro used money which Mrs Gordon gave her for repayment of the Bullsbrook 'loan' for other general purposes. There is no other evidence about this issue, but Mrs Gordon says that relations with her mother were strained from then on and never quite returned to normal, notwithstanding that Mrs Gordon spent a lot of time with her mother and in caring for her in the latter stages of her illness.

190 In her statement, exhibit 20A, Mrs Gordon says, at par 83, that she never heard her mother or father promise Ross Consolaro any land except for a building site and that she never heard her parents promise the fuel business to him. According to her, neither her mother or father ever told her that they had made any such promises concerning the farms or any share in them, but she does recall frequent statements by her mother that she and her father had promised Ross land to build a house on in terms which referred to a quarter of an acre (by the father) and the land that the house was built on (by the mother). This is rather inconsistent with the position of the defendant who at first denied that $3,000 had been paid by Ross or Judith Consolaro for such land in 1976 and with the evidence from Mrs Gordon and her husband, that Mr and Mrs Phillip Consolaro were furious when, on their return from holiday, they discovered that Ross Consolaro had built on the Vine Street property without permission. I have already concluded that Mr and Mrs Phillip Consolaro were fully aware of Ross and Judith Consolaro's intentions to build before they departed on their 1976 holiday, that building work had commenced, and that they had approved the site and the construction beforehand.

191 According to Mrs Gordon, there was a conversation between her father and the plaintiff in 1993 after her mother's death and before the funeral when Ross Consolaro said words to the effect 'I'll work the sandpit, we'll go halves, you'll be on about $500 per week'. This accords with the evidence of the plaintiff and of the defendant that there was an agreement between the father and the plaintiff that Ross would continue sand mining operations from Walyunga. It is not possible to say whether or not this was the occasion referred to by Ross Consolaro when the father confirmed to him that he would keep the promises made that Ross' name would be placed on the title, but it does confirm a consensual agreement between his father and Ross about the continued operations of the sandpit. Neither the plaintiff nor Mr Phillip Consolaro asserted that there was a promise that they would share equally in the proceeds of the sandpit or that the father would received approximately $500 per week and I do not accept the detail of the evidence of Mrs Gordon in this regard.

192 Between this period in October 1993 and July 1995, Mrs Gordon formed the view that her father, and for that matter the other members of the family, were not getting a fair share out of the revenues of the sandpit which peaked in the early period after Mrs Winnie Consolaro's death. This seems to be the bone of contention which led Mr Phillip Consolaro to accuse Ross of cheating him out of the sand receipts which led to his eviction from the Walyunga property in August 1995. I am satisfied that Mrs Gordon was influential in leading Mr Phillip Consolaro to the view that, somehow or other, Ross was exploiting his father in relation to the sandpit operations, an allegation which had far-reaching consequences and which has not been supported by any evidence adduced in this trial. This has led me to have considerable reserve about the credibility and reliability of Mrs Gordon on any contentious issue.

193 Another obvious area of discord between the plaintiff and Mrs Gordon arose from the use of the shed at the fuel depot at Vine Street. The events leading to the argument about the electricity supply and the fuses being withdrawn leading up to Kyli Consolaro's 21st birthday party on 9 April 1995 have been set out already. That seems to have been the final straw between Ross Consolaro, his sister Mrs Gordon and her husband Robert Gordon, resulting in the plaintiff ordering the Gordons off his land and declaring that they should never return. Clearly, the disharmony between brother and sister had been building for a long time. It may have had its origins in arrangements under which Norma Gordon and Judith Consolaro were to plant crops of melons or other vegetables on the Vine Street property and share the proceeds of the harvest equally between them. There were certainly occasions when such a joint enterprise was undertaken by those two women. Accordingly to Mrs Norma Gordon, the plan was carried out into fulfilment and the net proceeds of the harvests were shared equally but Mrs Judith Consolaro and her husband, the plaintiff, each described arrangements for the joint planting to be undertaken, and the crops raised, but say that all the proceeds were received and kept by Mrs Gordon to the exclusion of Mrs Judith Consolaro. According to Ross Consolaro, it was impossible to work with his sister Norma Gordon. It is unnecessary to attempt to resolve those competing allegations because it is enough to notice that animosity existed and was building between the Gordons and the plaintiff and his wife from before Mrs Winnie Consolaro's death. Once the subdivision of Ross' block at Vine Street was eventually achieved and he had secured title to that block, he fenced off the boundary and that also seems to have been treated as an act of provocation.

194 In the shed by the fuel depot, the Gordons had stored some old vehicles, machines and like equipment which had been there for quite some time. It was the plaintiff's request to Robert Gordon to move those materials in advance of Kyli Consolaro's 21st birthday party which led to the arguments and the cutting off of the electricity that night when Robert Gordon refused to do so and when the plaintiff retaliated by saying that he would move them with the front end loader. After the argument of the 21st birthday party, Ross Consolaro sent the Gordons an invoice for $16,250 (agreed list of documents, book 3, folio 786). This purported to be 'rent of commercial property and storage from January 1994, to 5 April 1995 at $250 per week'. It was dated 1 May 1995. According to Ross Consolaro, this was for the use of the shed for storage. The account was never paid and it has not been pursued by Ross Consolaro. However, the episode does illustrate the depth of feeling between the plaintiff and his sister during the period from 1994 onwards.

195 Generally speaking I found Mrs Norma Gordon to be demonstrably hostile to the plaintiff and to persist in untenable allegations, for example the allegation that Ross Consolaro had built the home at Vine Street in 1976 without the parents' approval and without payment; that he had been exploiting her father in relation to the sandpit operations leading up to the break in 1995 and that she was entitled to her half share in the sale proceeds of the delicatessen and land at Bullsbrook rather than treat them as part of her mother's estate. On those major issues, I consider that Mrs Gordon's claims are wrong and for this reason I only accept her other evidence where it can be independently confirmed.

196 The effort to produce a written statement of the evidence from the defendant failed. Mr Phillip Consolaro declined to accept a statement which had apparently been prepared for him by his solicitors and signed saying that he did not recognise it and attempts to rely upon such a statement were not pursued. His evidence was therefore given in chief in the conventional way. When giving evidence it became apparent that Mr Phillip Consolaro, no doubt because of his age, found it difficult to follow questions or answer to the point. He was obviously preoccupied with his own thoughts and repeatedly gave answers which demonstrated that his memory was very limited or that he was intent upon making a point regardless of the question. He was often confused about times and dates and the sequence of events and was quite plainly still greatly affected by grief over the loss of his wife. Some events were clearly forgotten and ignored and he was particularly evasive in relation to questions about his advance knowledge of, and approval of the subdivision of the land at Vine Street to allow Ross to become registered as the proprietor of the land upon which the house was built. Although Mr Phillip Consolaro did give quite a detailed account of the family narrative, it was obvious that he was preoccupied with his mistaken and unjustified hostility towards the plaintiff and that he refused to acknowledge or consider obvious points in favour of Ross' position. This appreciation is necessary to evaluate Mr Phillip Consolaro's evidence which, for those reasons, I treat with reserve.

197 According to Mr Phillip Consolaro, he never promised Ross any interest in any of the farming lands and never told him that he could have any of the land. He acknowledged that 'his wife was the boss' but said that he never took money from Ross. He affirmed that his wife Mrs Winnie Consolaro kept all the financial records and he could not remember what had become of them. But he did acknowledge that Ross helped him a lot as had his wife Judith. He was vague about the acquisition of other properties in addition to Vine Street, but eventually acknowledged that he operated Deepdale at Bullsbrook and Walyunga and that Ross worked on those other properties. He maintained that the vineyard property had been purchased in his name alone - which was correct - but he said, mistakenly, that this never changed. Mr Phillip Consolaro said that he bought the house for Norma Gordon at Bellevue, an old pre-war house, which was later moved to the Vine Street property. He claimed that he only saw Ross' new house on the Vine Street block after he and his wife returned from their European holiday, saying that Ross' mother 'went mad when she saw it' saying that the house had been built without a permit and without her permission and asserting that Ross had been told to build on the western area of the land. I do not accept this evidence, but it is very clear that Mr Phillip Consolaro considers himself to have been deeply wronged by the construction of Ross' house in its present location. Quite why he holds those views and when they originated, cannot be determined.

198 As a strange contrast to this disapproval of the time and location for the construction of Ross' home at Vine Street, Mr Phillip Consolaro said that he had never said that he would give his son land for a house, but that he could have had two or three acres if he had wanted that. Mr Phillip Consolaro maintained that he did not care about the area required by Ross and that he never said anything more about him staying in the house after the argument following the return from the European trip.

199 He recalled the incident of the argument near the fuel shed on the occasion of Kyli Consolaro's 21st birthday party in April 1995 and said that Ross had ordered him off the land and that Judith Consolaro had insulted him on that occasion. Ross maintains that he never ordered his father off the land or refused him access in contrast to his attitude towards the Gordons, but all this seems to have been lost in the mutual animosity which has existed since then, at least from the father's viewpoint.

200 According to Mr Phillip Consolaro, he knew nothing about the caveat which Ross had lodged against the Vine Street land following his apprehensions about the possible sale or lease of the land to the fuel company. He claimed to have known nothing about the caveat and said that the situation would have been very different if his wife had known about it. I do not accept this. Notice of the caveat would have been given to the registered proprietor, together with the reason for lodging it and there were certainly grounds for Ross and Judith Consolaro to be apprehensive about their position. I consider that Mrs Winnie Consolaro definitely knew about the existence of the caveat and a copy of the document was found among her papers after her death. It seems unlikely that she did not mention the matter to her husband, but if she had, I doubt that Mr Phillip Consolaro in his present frame of mind would remember that. Mr Phillip Consolaro then returned to his theme that 'Ross had taken his block', and that he had not sold him the land (meaning Ross' home block at Vine Street) and it became perfectly obvious that Mr Phillip Consolaro was ignorant of the procedures and obligations leading to the subdivision and had become obsessively preoccupied with Ross Consolaro's imagined wrongdoing.

201 Later in his cross-examination, Mr Phillip Consolaro said that neither Ross nor any of the children had paid board and that while Ross and Judith Consolaro lived in the old house for five years after their marriage, they were not charged any rent, or for electricity, rates or taxes and that all those expenses were met by Mrs Winnie Consolaro. He also went as far as saying that Ross and his family used water from his well. He denied that Ross did any repairs to the trucks or other machinery and said that he was still driving his truck when aged 90 and only gave up his driver's licence when he was 92. I am satisfied that this is mistaken and untenable.

202 Mr Phillip Consolaro denied making any arrangements to share the revenues from the sand mining operations at Walyunga after his wife's death. According to him, Ross was to be paid $100 per day for the sand mining operations during the life of the contract for the Roe Highway sand supply and the reason the contract was lost, was that Ross refused to agree to a reduction of cost of sand from $1 per cubic metre to 90 cents per cubic metre. This cannot be correct because it does not reconcile with the royalty agreements, but I do accept that there was some underlying argument over a refusal to reduce cost for the supply of sand to the contractor which led to the loss of the contract.

203 The defendant denied that he ever said to Ross words to the effect that he would keep his promises during any of the discussions concerning the sandpit operations. At this point, Mr Phillip Consolaro reverted to his preoccupation about the construction by Ross of the home at Vine Street and said that his son had taken his vineyard off him when he built his home.

204 Mr Phillip Consolaro also confirmed that his daughter Norma Gordon came to live with him and care for him from 1993 onwards, shortly after his wife died. He follows Norma Gordon's advice and she attends to his finances, writing his cheques, taking him to the doctor and getting him his meals. He does everything she asks and he seeks her opinion about what is the right thing to do. He also maintained that Judith Consolaro never worked on the fuel depot and never helped out on the pumps although he had given contrary evidence in that regard before. He asserted that the builder Mr Aloi had nothing to do with the construction of the house at Vine Street and then that he built the house without a permit in order to trick him and that he was a liar. None of this was put to Mr Aloi in cross-examination and it was obvious that Mr Phillip Consolaro was very prejudiced against Mr Aloi and would not heed any facts contrary to his own fixed opinions. His evidence in this regard was quite unacceptable. He concluded his evidence by reverting to his theme that Ross and Judith Consolaro had pushed him out of his house at Vine Street and that he had sell the vineyard to survive. His prejudice against Ross and Judith Consolaro was quite unquenchable and deeply ingrained, however irrational in fact.

205 Rodney James Thomas Consolaro was born on 3 September 1953 and was the youngest child of Phillip and Winnie Consolaro. He lived at the Vine Street property until he was married on 6 September 1975 when he and his wife went to live in Osborne Park. He described how Louise and Michael Klarie came to live with the family in 1963 and how he did general chores around the home while he was still at school, including serving fuel and working in the vineyard. He confirmed how Ross and other members of the family helped their father after the property at Walyunga was purchased in 1966 and the progress of Ross Consolaro's apprenticeship. Rodney Consolaro confirmed that his elder brother did many farm activities after he completed his apprenticeship and that Ross did more than he himself did because Rodney was not a healthy child. The emphasis in Rodney's evidence was that although Ross did much work in and around the family farming operations, so did other members of the family. He asserted that he recalled Ross being paid by his mother on many occasions, either by cheque or in cash.

206 After Rodney's marriage, he and his wife were living in Osborne Park and he was working as a cabinet maker visiting the family property at Vine Street about every three weeks and occasionally helping with work in the vineyard. He acknowledged that he did not work very often on the family property between 1975 and 1980.

207 With reference to the parents' overseas holiday in 1976, Rodney said that his mother said that the trip was going to cost an extra $3,000 and that Ross loaned her the money and that she gave him a receipt for the payment. This appears to be an explanation for the $3,000 payment made by Ross to his parents in April 1976, but neither the bank deposit slip nor the receipt given by the parents for the payment confirmed that it was a loan, rather they identify the payment as being for the purchase of land. Rodney also said that the location of Ross and Judith Consolaro's house became a heated conversation topic after the parents' return from the overseas trip and that it remained so for many years. He discussed with Ross shortly after the return, the arguments about the location of the house and confirmed that Ross had said to him at the time that he had built the house where it stood because it was the only place where he could put it and that his mother would not let him put it anywhere else because she wanted it close. While this is not evidence in support of Ross Consolaro's explanation, it is an account of a contemporary explanation for the construction of the house where it was built by Ross which is consistent with all the known facts and with the explanation which Ross and Judith Consolaro have been making ever since. Rodney Consolaro also confirmed that on many occasions between 1976 and 1980, Ross had complained to him about not being paid enough by their parents. He recalls that his mother would say, with regard to Ross' complaints, that Ross got paid for work that he did, that he had a house with a roof over his head and that 'he doesn't pay rent'.

208 From 1980 to 1992, Rodney Consolaro worked for his father at Vine Street and at Walyunga and for a while at Deepdale. He says that he was paid about $30 a week, rising to $50 per week in about 1986 and finally to about $80 a week and sometimes more in 1990. His mother paid all his bills, such as the mortgage and rates and taxes, house insurance, car registration and insurance and his fuel was taken from the depot.

209 Generally Rodney asserted that Ross was constantly complaining, wanting too much money and wanting to be paid for everything. He also explains that Ross was very busy with his own carting business from about 1974 onwards. According to Rodney, it was because of Ross' efforts on his own behalf that their mother asked Rodney to return to work on the farm because Ross was so busy on his own business and if he did something for her she had to pay him straight away. Once the arrangements were struck for Rodney to come and do the work, Ross tried to persuade him not to do so. According to Rodney, the extent of the work that his elder brother was doing for their parents between 1976 and 1980 was declining. However, Rodney confirmed that even after 1980, Ross did the bulk of the carting of the fuel. Again, Rodney maintained that he was doing a lot of the work at Walyunga from 1980 onwards.

210 Rodney Consolaro said that he had never heard either of his parents say that Ross was to get the farm one day and that no-one else ever said that to him. He never heard his mother or father promise that Ross or anyone else was going to get part of the land except for Louise Klarie getting her block at Bullsbrook and Ross having a site for his house at Vine Street. As far as Rodney was concerned, his father frequently said that that he had come to this country with nothing, and that all he had he had worked for so that the children could get a better life - the terms used were understood to include Michael Klarie and Louise Cepo.

211 According to Rodney Consolaro, it was Ross who pushed him out of the farm in 1992, leaving him to go and work for Swan Settlers. Rodney's evidence was that Ross quit at Swan Settlers, came home and said that he was going to work at the sandpit and that he, Rodney, could go and do the job at Swan Settlers. In any event, Rodney did take over Ross' work at Swan Settlers from 1992 onwards. He described arguments between Ross and his father about Phillip Consolaro's statements that Rodney could build a house on the Walyunga farm, about the sale of machinery after the mother's death and about demands for subdivision of a house block at Vine Street. These included arguments with their mother in which harsh words were said by Ross.

212 Rodney Consolaro then referred to a series of the records of cheques showing payments which had been made to him and payments made to Ross, the gist of which was to assert that Ross was in fact paid more than he had acknowledged in his evidence in this case, and that he, Rodney, too, was being paid for doing substantial work in relation to the family business. In cross-examination, Rodney said that his father and mother had indicated to him that because of the infrequency of money coming in, they could not afford to pay Ross regularly for the work that he did. He, Rodney, acknowledged that his mother had paid his expenses, his mortgage payments and other bills - some 12 years of mortgage payments.

213 The balance of Rodney Consolaro's evidence largely dealt with the amount of time and the extent of work Ross did on various farming operations over the years. It was to the effect that this was less than Ross had asserted and that he, Rodney, and others, also had done considerable work on all the properties.

214 With regard to the sand mining operations after Mrs Winnie Consolaro's death, Rodney maintained that there was an agreement between Ross and his father that they would share the revenues of the sand operations equally between them and that his father spent $36,000 on a new front-end loader which was used by Ross in the sandpit. However, he was not privy to any of the discussions between Ross and his father, nor was the agreement in relation to the sandpit produced.

215 In the course of re-examination, Rodney Consolaro explained that his view was that all members of the family had been brought up to trust one another and that it was an affront to the family for Ross not to trust the rest of them. He acknowledged that with regard to the Bullsbrook delicatessen issue, Ross may have been legally correct, but the entitlement to the sale proceeds of that property was a moral question and that Ross should have respected his father's wishes. Rodney believed that it was wrong for Ross to bring this action or to contest his inheritance and that the question of the distribution of his property should be a decision for their father alone. His point was that their father thought that it was unbelievable that Ross could challenge him or question what he might wish to do in his own will.

216 My general impression of Rodney Consolaro was that he was attentive and moderate when giving evidence and attempted to be balanced and to assist the court in giving a careful and correct account of the family narrative. He did not obviously show any animosity but it was evident that his sympathies lay with his father and that he thought that his brother Ross was making overreaching demands. His portrayal of his brother Ross in the years from about 1990 onwards was generally to the effect that Ross was demanding extra payments, was constantly dissatisfied and was prone to have shouting matches with his mother or father over the question of the subdivision of the Vine Street property for his home lot and about other matters. Most evident was his attitude that filial respect should have obliged Ross to comply with his father's wishes and to accept, without demur, whatever his father might decide to do with the family property.

217 I consider that a number of Rodney's criticisms of Ross for being demanding, complaining and prone to having arguments with their parents are probably well founded, but that conclusion really does not advance the position in any way when it comes to considering the root causes of these disagreements. Rodney obviously benefitted financially from his mother's intervention in bringing him back to the farm in 1980 and in supporting him financially from then on until 1992. It is also the case that Rodney, and the other children, almost certainly had very little knowledge of the detailed financial arrangements which Mrs Winnie Consolaro had made with each of the other children because of her secretive ways.

218 While I generally consider that Rodney Consolaro has tried to be truthful in the evidence which he gave, within the limits of his recollection and knowledge, the evidence as a whole still paints the picture of Ross becoming increasingly aggrieved over inadequate payments for many years stretching back to the mid-1970s. When one has regard to the situation as it developed over the lack of subdivision for Ross' home and his attempts to work elsewhere before complying with his mother's wishes to return and work on the farm, one can understand the basis for Ross' dissatisfaction. He may have been forceful, and even offensive in the nature and frequency of his complaints, but his continual presence and work at the farm for so long is, I am satisfied, consistent with his reliance on the expectations which had been generated by his mother's and father's promises.

219 Gail Lucille Rudez (nee Consolaro) is the third child of the defendant and Winnie Consolaro and was born on 1 May 1950. She lived at the family home at Vine Street until she was married to Ante Rudez on 17 June 1991. She also did household chores as a young girl and once she turned 14 or 15 began doing work at the farm and the vineyard as well as looking after the young children, and Louise Cepo, her cousin, and Vikki and Phyllis her nieces, the daughters of Norma and Robert Gordon.

220 She recalls other members of the extended family including old employees such as Mr Don Lamond working and helping her father on the properties. She recalls Mr Lamond being virtually a member of the family and working at Vine Street and then at Bullsbrook until her mother's death. He had lived at Deepdale for a few years. She said that there were other men employed in her father's business, particularly in the wood yard including Uncle Matt (Blondie), Uncle Charlie, Mr Rackich, Mr Polinelli and Mr Gaddean. This was in the late 1950s and the early 1960s.

221 She said that Ross Consolaro attended technical school but he denied this and I accept his denial. She then described a variety of work which she and others did helping her mother and the younger children around the house and confirmed that the other men, her uncles, and Louise's father, George Klarie, helped with the vineyard. She recalled a promise by her parents to give her sister Norma Gordon a quarter of an acre of land on the Vine Street property but said that they could not do so because of the Shire of Swan. She described the years of her late teens as involving a lot of socialising in which Ross participated suggesting that Ross and his friends were out most evenings. Mrs Rudez said that as each of the children obtained employment their mother and father took board from them but if they needed money their mother would give some of this money back. She said that she frequently saw her mother give money to Ross and Rodney when they were both at home.

222 There was an issue over the purchase of Ross Consolaro's first car in about 1967. He purchased this on hire purchase and was making the payments himself but Gail and Ante Rudez each said that Ante had paid several of the payments for him, presumably, because he was unable to do so. This had been explored in the cross-examination of Ross Consolaro and it seems that, at the most, Ante Rudez helped him by making four monthly payments on the hire purchase and it is clear that Ross never repaid him directly.

223 There was an argument between Gail Rudez and her mother shortly before Gail was married which lasted until her first child was born. During this period Gail Rudez lived in Norma Gordon's home until she reconciled with her mother. On her marriage Gail Rudez and her husband lived at Bicknell Place, Herne Hill for about 18 months before moving to their home at 1011 Great Northern Highway, Millendon. They moved in there in mid-1973 and remained there until after Mrs Winnie Consolaro died in 1993.

224 However, Mrs Rudez and her children were regular visitors to the family home calling in most Friday nights and Sunday afternoons. From 1987 until her mother's death Mrs Rudez saw her mother almost every day calling in at the home most weekdays and helping her with her medicine during her decline. Mrs Rudez confirmed that her mother did all the family bookwork for the businesses operated with her father and did so up until the day she died.

225 Mrs Rudez gave an account of the fuel business at the Vine Street property. It began as a drum depot and it was only later that bowsers were installed. Customers would pay in cash at the bowsers or at the kitchen at the house or, for many regular customers, on account. Mrs Rudez confirmed that she often saw her mother make payments to her brother Ross in relation to fuel drum deliveries. I consider that this confirms the evidence from the plaintiff that a running account was kept for his transactions with his mother for payments due for his cartage deliveries both for his father and for the fuel depot and against which various of his own expenses would be debited. The making of cash payments to Ross is readily explained by the fact that there would periodically have been balances due to him as well as for his accruing wages.

226 Mrs Rudez also confirmed when Rodney came back to Vine Street, which has been established to have been in 1980, he did not at first have a truck licence and that from when he did obtain a licence he did many of the deliveries on their father's truck. She confirmed that after her mother was diagnosed with cancer, which was otherwise established as being in 1987, her father, Rodney and other men carried on with the chores at the vineyard and at Bullsbrook and that by that time there was very little work in the vineyard because most of the currants had been removed.

227 Mrs Rudez described a number of occasions in the last few years of her mother's life when there had evidently been arguments or disagreements between Ross and his mother and when their mother was showing signs of distress. During the period when Ross was being paid $100 a day for working at the sand pit (which appears to have been a three month period in 1991 or perhaps a little later), Gail Rudez heard her mother making remarks to the effect that Ross was 'getting $100 to count trucks' indicating some sense of grievance about this. She also said that Ross demonstrated some animosity towards her mother or insensitivity about her plight the day before her death but he denies this and I am afraid, in the circumstances, that the making of such an allegation reveals a degree of hostility by Mrs Rudez towards her older brother. She also said that Ross was involved in burning his mother's papers outside the house after her death and without knowing exactly what the papers were, that they included records of Ampol transactions, receipts and bank statements. According to her it was then that the caveat was discovered whereupon she showed the caveat to her father who then discussed the matter with Ross giving rise to some difference between the plaintiff and the defendant.

228 Mrs Rudez also referred to an episode at the Vine Street property in which she, her son, Vikki Gordon and Mr Phillip Consolaro were going to see Ross and there was an argument when, according to Gail Rudez, Mrs Judith Consolaro insulted the defendant and ordered him off the property. This appears to be a reference to the argument at the time of Kyli Consolaro's 21st birthday. Shortly afterwards Norma Gordon showed her an invoice which she had received from Ross for the $16,250 as a demonstration of Ross' attitude towards her use of the shed.

229 Mrs Rudez's evidence then went on to deal with Ross' activities on the farming properties from 1966 onwards and generally acknowledged that while he did work on the family properties he was often out socialising and that the other duties he did were no more than the equivalent of those performed by all other members of the family. She confirmed that Ross did market carting work on the small truck which he had purchased in 1974, and some animal husbandry but not very often. She described work done by various members of the family in hay making, feeding cattle, constructing cattle yards, harrowing, carting sand and undertaking vineyard maintenance. In all of these activities she acknowledged that Ross did work but claimed that he was paid for this. Generally her evidence was to the effect that the work done by the plaintiff was considerably less than he himself had asserted.

230 In her responsive statement (exhibit 26) Mrs Rudez said that she had never heard her mother or father make any statement to the effect that if Ross stayed working with them they would put his name on the Walyunga farm, but that Rodney could have the vineyard and the girls could share the cash. However she recalls hearing Ross say that to his brother Rodney at the Herne Hill house on the day of their mother's funeral. She confirmed, contrary to the plaintiff's responsive statement, that she had seen Ross burning records in a drum at the back of the Vine Street property on the day of the funeral and that Louise Cepo had been taking the documents out to the fire.

231 Mrs Rudez was cross-examined at length about her evidence. In doing so she enlarged on the episode of the burning of papers after Mrs Winnie Consolaro's death and described how that she and Louise Cepo were clearing the spare room/office at the rear of the house where her mother's records had been kept and how Louise Cepo was taking papers out to Ross after the funeral some two or three days later. She described how she and Louise Cepo were going through her mother's things to help their father out and how Louise Cepo was staying over in the house with their father over those days and went through everything before giving it away. She maintains that she saw Ross come in and out of the house at times and go into the office/room and that he was walking up and down on the veranda and then burning papers in a drum outside. However, in giving this evidence her response to questions was notably evasive and the answers which she gave reflecting against the plaintiff were very emphatic. She was perceptively hostile and reluctant to make appropriate concessions and throughout her evidence demonstrated a tendency to minimise the plaintiff's role. Her account of the discovery of the caveat and her discussion with her father about this involved an unrealistic lack of detail. She said that she had never received any significant financial help from her father and that she received no advantages in her mother's will. While there is obviously a lot of the background given by Mrs Rudez which was accurate I formed the view that she was a partisan witness and quite hostile to the plaintiff. I consider that I must treat her evidence in those areas with reserve.

232 Mr Ante Rudez also gave evidence. His command of English was very poor and it was clear that he had only had a limited education. He had been born in Croatia on 11 February 1943 and came to Australia in 1959 living at Herne Hill for about three and a half years. He brought his own vineyard in 1964 and was also working at Midland Brick and driving a truck living about 1 1/2 km from the Consolaro home at Vine Street. It was at Midland Brick that he had first met the plaintiff, Ross Consolaro, in 1965 when they were both apprentices and they became friends. Mr Rudez was a frequent visitor to the Consolaro home to meet Gail Rudez and he and Gail Rudez, Ross and Judith Consolaro, before their marriages, frequently attended a weekly dance at Canterbury Court in the evenings. Gail Rudez and Judith Consolaro (before their marriages) both worked at Silhouette Health Studios in Hay Street and Ross Consolaro and Ante Rudez would pick them up after work on Monday, Wednesday and Friday nights and take them home often stopping off for a coffee. During that time Ante Rudez saw a lot of Ross Consolaro and says that they are still friends.

233 Mr Rudez confirmed that he had helped Ross with four cheques for payments for the hire purchase on Ross' Falcon which had been purchased in 1969. The cheques became exhibit 27 and were written between 12 August 1970 and 14 September 1970, one for $36 and three for $37. He said that Ross did not pay him back, that he did not expect repayment and had just helped a good friend. Mr Rudez remembered meeting Mrs Winnie Consolaro first in 1971 and confirmed that they spoke in the Croatian language. He did work on the Consolaro vineyard during 1975 and 1976 and on occasions during the picking seasons. He described how Ross was doing carting for him and how he used Mr Phillip Consolaro's truck in 1971, 1972 and 1973 before he brought his own truck. The method of payment was to deduct the cartage costs from the market proceeds and for the deduction to be sent direct to Ross Consolaro. He confirmed that Ross was carting for others in the area and for his mother and father.

234 Mr Rudez too said that there was an argument between the mother and father on the one hand and Ross on the other when the parents got back from their holiday in 1976 about the location of the house. He remembered that Rodney had come back to the Vine Street property in 1980 the same year as Michael Klarie had died. According to Mr Rudez, Mrs Winnie Consolaro had asked Rodney to come back because Ross was not working or working as much as she expected. In cross-examination he said that most of the time when driving Ross was working for himself and although he did help his parents in carting work he was mostly working for himself including driving his father's truck carting bricks for his own account. He recalled seeing many of the family members working on the Walyunga property but only saw Ross on a truck or tractor or doing machinery work there. He said that he and Ross had gone their different ways and that although he had nothing against Ross it was evident that Ross did not wish to continue to be friends after his marriage. Generally speaking I found Mr Ante Rudez to be careful and honest in giving evidence. He was very nervous but was trying to be helpful even though he had a simple but honest understanding of events.

235 Acknowledging that there are many difficulties in ascertaining exactly the extent of contributions to family farming work at the Consolaro properties after so many years, and in the atmosphere of controversy which has existed within the family from before Mrs Winnie Consolaro's death I am inclined to accept the general thrust of Mr Rudez's evidence as being reliable. It is consistent with much of what the plaintiff has said in evidence, except of course for references to the alleged promises but it also suggests that the plaintiff's time and effort spent on the land was perhaps less than the plaintiff himself has claimed. It also suggests that Ross was working on his own account in relation to trucking and cartage, including on his father's truck, to a greater extent than claimed. This evidence casts some doubt over the reliability of the plaintiff's time event activity and sequence chart, exhibit 4, but that is not surprising. Nevertheless, the general pattern of evidence is to the same effect of the plaintiff's namely that Ross only had full time external employment on a few occasions and then for relatively limited periods. The longest of these was when he was working at Swan Settlers from 1990 to 1992 during the period when his brother Rodney had came back to the home. Otherwise, and even during that 12 year period, Ross was working on or in connection with the family businesses for substantial parts of the time. There was never a period (apart from the early apprenticeship) when he had any business or career path entirely independent of the family.

236 One way or another the plaintiff's working life until 1995 revolved around the family farming operations notwithstanding that he also had some other income or remuneration from associated private activities. This is consistent with his claim that he was acting on the expectation generated by his parents that one day he would be a co-owner in the family business. This claim is not inconsistent with any of the facts as established. The other members of the family, Norma Gordon and Gail Rudez each married husbands with careers or businesses of their own who were financially independent. Rodney obviously attempted independent living by starting up a cabinet making trade and living away from the family business first at Osborne Park and then at Wanneroo from 1975 until he was brought back to the farm at his mother's request in 1980.

237 I appreciate that there are different versions about why Rodney Consolaro came back to the farm. There is the plaintiff's claim that Rodney got into financial difficulties and that his mother wanted to assist him, and then there is the evidence from other members of the family that Mrs Winnie Consolaro persuaded Rodney to come and work at the farm because she was dissatisfied with Ross who would not work or work as much as she wanted and who kept demanding more money. However I do not think that these different versions of the situation are really in conflict. It is clear that Mrs Winnie Consolaro either by disposition, tradition or necessity was not disposed to pay a realistic wage to Ross for the work that she wanted him to do in connection with the farm and it was equally apparent that Ross, with his wife and young family, would have been in need of more money than his mother was prepared or able to pay him. No doubt this led to disagreements and irritations on both sides but there is really no way in which Ross could be expected to survive on the low remuneration being paid by his mother from 1970 to 1980 and that he was, through necessity, obliged to take on other work. I do not see how he can reasonably be criticised for doing this or how it could be expected that he should have remained working solely for the low remuneration available from his mother and father. It is clear that Rodney did experience financial difficulties and that his mother took over payments of his mortgage over a 12 year period. She could not employ both sons and, as Rodney was receiving the advantage of having his expenses covered by his mother, he would have been able and willing to do more work in relation to the family properties than Ross who was only receiving more limited remuneration. The real point of the case is that Ross, to the extent of his financial ability, but with occasional complaints and demands for more money, did persevere in working at the family enterprises and did not take on a full time external career. However, he had tried to do this on no less than three occasions, twice at Midland Brick and once with the RAC, only to be persuaded by his mother that he should work on the family business. He did so until after her death and continued to run the sand pit operations until the break up with his father in August 1995. I am satisfied that this was due in no insignificant part to complaints by Norma Gordon that the revenues from the sand pit should have shared more widely in the family no matter what agreement might have been struck between the plaintiff and the defendant in that regard.

238 Significantly, Ante Rudez said nothing about the burning of papers by Ross at the Vine Street property after Mrs Winnie Consolaro's death. Nobody suggests that he was there but neither Mr Rudez nor any other member of the family suggested that there was any immediate complaint about that conduct or any motive for Ross to destroy his mother's records. However Mr Rudez does refer to controversy in 1976 after the return by Mr and Mrs Phillip Consolaro from their overseas trip when they saw the partially constructed home which Ross was building at Vine Street.

239 Louise Cepo (nee Klarie) was born on 13 November 1963, the daughter of Winnie Consolaro's sister Kate Klarie who died on 22 May 1965. She is accordingly a cousin of the Consolaro children but was raised and treated by Phillip and Winnie Consolaro as another child of their own. She referred to Mr and Mrs Phillip Consolaro as her parents. Louise lived at Vine Street from 1965 to 1991 before marrying and moving 5 km away for about two years and then moved into the house at Walyunga on the block which was subdivided and given to her in March 1992. She was a daily visitor to the Consolaro home over the year before Mrs Consolaro's death.

240 Mrs Cepo participated in all the Consolaro family activities as a child and then went to Edith Cowan University on leaving school where she completed a Diploma of Education in teaching. She had worked for two years before her university course and was at university from 1984 to 1987 inclusive, starting work as a primary school teacher in 1987. When she was a student she did work in and around the family farm and business serving fuel, picking and cleaning grapes during the summer and remembers doing this from about 1977.

241 Louise Cepo recalls that Ross Consolaro began to operate his own transport business Kyway Transport in the late 1970s to collect grapes. The business was named after his two children Kyli and Wade. Ross would collect grapes in the afternoons from most of the growers, take them to market on Tuesday, Thursday and Saturday and on Monday, Wednesday and Friday in the mornings, would often get watermelon bins or deliver watermelons to the markets. He employed another man to help him with his business and was using his Daihatsu truck.

242 Mrs Cepo recalls Ross starting to work for Swan Settlers after starting work in the Kyway business and says that in the 10 years or so prior to Mrs Winnie Consolaro's death, Rodney worked fulltime at Vine Street and Ross worked at Swan Settlers. Mrs Cepo recalls that in the period prior to Mrs Winnie Consolaro's death in 1993, Ross had not worked for his parents to any large degree for quite some time but during this period, for at least 10 years, Rodney was employed to do the family work. According to her, Rodney did everything at Vine Street and at Bullsbrook and at the sandpit and was assisted by the old employee, Don Lamond, and other men. She also recalls Ross coming to the kitchen and being paid either by cash or cheque by Mrs Winnie Consolaro.

243 Mrs Cepo recalled many conversations between herself, Ross and his mother generally about farming activities, deliveries, machinery maintenance, vineyard and farming work and fuel deliveries, but mostly about carting sand or fuel. She confirmed that Ross took fuel on credit with entries made in the exercise books by Mrs Winnie Consolaro for credit given. She said that after this work was done any corresponding work for which credit should be given was also recorded. There was an accounting process resulting in the settlement of an amount owing and then payment. This confirms generally the evidence given by the plaintiff in this regard and explains the observations of payments of cash or cheques to the plaintiff which were made by other members of the family. She pointed out that the records with which she was familiar also recorded work being done by other members of the family including Glen Gordon, one of Norma Gordon's children and by other relatives for which payment or credit was given or recorded.

244 Mrs Cepo was still at school when Ross Consolaro's house in Vine Street was built in 1976. However, she had no direct knowledge as to whether or not Ross had his parents' permission to build the house or to build it where it was constructed. However, she remembers many conversations in her presence from about 1984 onwards when Ross would ask his mother for the house and land to be subdivided. According to her, Ross was asking for the whole of the corner but his mother was refusing to allow the corner to be included in the subdivision. Mrs Winnie Consolaro was also insisting that the subdivision should not include the shed or fuel depot but went on to say that the Shire would not let her subdivide that portion. It seems that this became quite a sore point.

245 With the benefit of all of this evidence about the controversy over the site of the home constructed by Ross Consolaro, I consider that the probable explanation is that Ross had, and always had had, his parents' prior approval to build the house where it was constructed and I do not accept the evidence to the contrary or the evidence suggesting that Mr and Mrs Phillip Consolaro remonstrated with him about the location of the home after their return from holiday. However, the evidence points to the conclusion that afterwards, problems arose about securing the subdivision due to the policy of the Shire of Swan against subdividing vineyard property in that area of the Swan Valley. This must have already been known to the family because of their experience of being unable to secure a subdivision for the land upon which Norma Gordon's house had been built. The probabilities are that Mr and Mrs Phillip Consolaro were only prepared to seek a subdivision of a small block of land which included little more than the area upon which the house itself was standing and, in particular, which excluded the nearby shed and fuel depot. I infer that this was never acceptable to the Shire of Swan and that the only hope of securing the subdivision was for a larger area which extended to the corner and which, inevitably, included land upon which the fuel depot and shed was constructed. That is what eventually occurred after Mrs Winnie Consolaro's death in 1994. I consider that it can be inferred that, whatever Mrs Winnie Consolaro might have thought about the matter, Mr Phillip Consolaro was opposed to a subdivision which would include the other buildings, namely the shed and the fuel depot, but faced with the inevitability of the Shire's position, Ross and Judith Consolaro's caveat and his desire to sell the whole of Vine Street (under a contract of sale for the whole property which he had entered into without excluding the land where Ross Consolaro's house was built) he reluctantly submitted to a subdivision which resulted in Ross and Judith Consolaro having the land presently registered in their names, which was slightly more than Mr Phillip Consolaro had originally intended.

246 The rub in all this was that the subdivision included the shed and the fuel depot and that up until the disagreement in 1994, Norma Gordon had been operating the fuel depot for her father. She and her husband were also storing equipment and materials in the shed. The probabilities are, and I find, that it was the nature and extent of the eventual subdivision which resulted in Ross and Judith Consolaro becoming the proprietor of the land with all those three buildings on it which irritated Mr Phillip Consolaro and, more to the point, offended Norma Gordon and her husband who were using the shed and operating the fuel depot. This dissatisfaction boiled over into the argument on the evening of Kyli Consolaro's 21st birthday party resulting in harsh words being spoken, the electricity being disconnected and Ross Consolaro ordering Norma Gordon off the property. That provides an explanation for the disagreements which then occurred afterwards and the recriminations over the siting of the house and subdivision. It was not long after this that Norma Gordon raised with her father alleged shortcomings of the administration of the sand mining business which led to the barring out at Walyunga in August 1995. Once the breakdown had reached that stage, and various members of the family had, however reluctantly, been forced to take sides, this led to unjustified accusations being made against the plaintiff in relation to the original construction of his home at Vine Street and in relation to the destruction of Mrs Winnie Consolaro's papers and records in the fire at Vine Street after the funeral.

247 It is quite clear that Mrs Winnie Consolaro did intend that Ross and Judith Consolaro should have land at Vine Street and Mrs Cepo recalls her mother saying on several occasions in the year or two before she died words to the effect that she was going to give Ross half an acre.

248 Mrs Cepo recalls Ross complaining to his father about the latter's gift of part of the Walyunga land to Louise Cepo upon her marriage. According to her Mr Phillip Consolaro told the plaintiff words to the effect 'I'll do what I want with what's mine and you can do what you like with what's yours' but she had never heard Ross make any statements about his ownership or potential ownership of the farm properties either before or after Mrs Winnie Consolaro's death in 1993.

249 Mrs Cepo was quite explicit that Mrs Winnie Consolaro did not get on well with Judith Consolaro and that they had had many arguments. She remembers that Judith Consolaro would seldom go to her mother-in-law's house except for Christmas or Easter or for similar occasions. She recalls that her mother could be very cutting when she spoke and in particular that she made a very insulting remark to Judith Consolaro on one particular occasion. She had for many years complained that Judith Consolaro was 'greedy', although I take that to be no more than a complaint that Judith was not happy with their reduced standard of living which Mrs Winnie Consolaro insisted upon.

250 Mrs Cepo's knowledge about the arrangements for the operation of the sandpit were entirely hearsay from Mrs Winnie Consolaro. By this means Mrs Cepo understood that Ross would get 50% of the proceeds of sand he carted and loaded and that when there were big contracts and he had to count the trucks coming to the property, he was paid a daily wage of $100 and that Ross commenced on this work in about 1991. However she did not know anything about the details of the plaintiff's agreement with the defendant. She does recall that Ross was carting a substantial amount of sand before and after Mrs Winnie Consolaro's death and that there were a number of family meetings about the sandpit operations.

251 After Mrs Winnie Consolaro's death, Mrs Cepo recalls an occasion when her mother's office was being cleared out and she remembered that Ross Consolaro was taking papers out to a bonfire in a drum in the garden where they were burned.

252 She also confirmed that the fuel business came to a sudden end and that Mr Phillip Consolaro was upset about that and that the cause had something to do with electrical connections being disconnected.

253 In a responsive statement, exhibit 30, Mrs Cepo confirmed that she had never heard Mr or Mrs Phillip Consolaro speak in terms which acknowledged or suggested that there was any promise that Ross should get the farm or a greater share in it. This statement also deals with more of the details of the plaintiff's claims about the extent and nature of the work which he did on the farms and again, while acknowledging much of this, adds that other members of the family were expected to do similar work and did do so and that Ross was involved to a less extent than he asserted. In cross-examination, in relation to the burning of papers, Mrs Cepo said that she was cleaning out the spare room at the house after her mother's death and that Ross was helping Gail Rudez sort the papers. All three would go through a box of papers and some of them would be taken out and burned but all were checked before being destroyed. Examples of the material being destroyed were old prospectuses. She also said that Mrs Winnie Consolaro had become more meticulous in her record-keeping the year before her death and was speaking in terms which implied that she suspected Ross of overstating hours or making double claims.

254 Generally speaking I found Mrs Cepo to be reliable and truthful. With regard to the incident of burning papers at the house in the days after Mrs Winnie Consolaro's funeral, it seems to me to very probable that there was a general cleaning out conducted at this time and that a lot of old accumulated materials were destroyed, taken or given away. Clearly there were many papers of no significance or value and it is only natural that these would have been destroyed. I accept the evidence, therefore, that there was a fire and that there was some destruction of papers. Although the plaintiff says that on the day of his mother's death he was driving a tractor outside the house and did not go inside, I get the impression that the general clearing up process lasted several days and that Gail Rudez stayed at the house to help her father during this difficult period. It seems only natural that Ross Consolaro would have ventured into the house and seen what was going on and either volunteered or been requested to help in some of the fetching and carrying. Accordingly, I think it probable that he did assist to some extent in the burning and destruction of some of the materials but I do not accept that he singled out sensitive or crucial financial records for this purpose or that he was motivated by any self-interest in doing so.

255 Denise Gail Stubberfield, the third of Norma Gordon's children, also gave evidence for the defendant. She was born on 31 May 1968 and is currently employed as a pharmacist's assistant. She was raised in her mother's house on the Vine Street property and lived there until about 1985 with her mother and father, sisters and brother and then moved to the Bullsbrook delicatessen. She gave a detailed account of the regular life at Vine Street and the activities of the extended family and workings and the family business over those years. She was married in 1989 and moved back to Vine Street living in the old house close by her grandparents.

256 Over the last four years of Mrs Winnie Consolaro's life, Denise Stubberfield visited her constantly and kept a check on her. At that time Mrs Stubberfield was not working and had a small child and spent a lot of time in her grandmother's company. She would frequently see Ross Consolaro during this period and saw arguments between Ross and Rodney about what was being done on the farms but did not give them much attention. She recalls that Ross complained about the money Mrs Winnie Consolaro was giving to Rodney but again did not take much notice of this except to remember that Ross was always complaining. On some of these occasions, she heard loud arguments between Ross and his mother and insulting language used by the plaintiff. These would stop suddenly as soon as she arrived and she would sit with her grandmother, calm her down, make her a cup of tea and Ross would leave. Mrs Winnie Consolaro would not say very much about the cause of these arguments.

257 Similarly, Denise Stubberfield recalls arguments between Ross and his father. She also described an occasion in late 1992 when she came to her grandmother's house to find Ross and Judith Consolaro present with Mrs Winnie Consolaro involved in a big argument and a shouting match in which the plaintiff was demanding that his mother should sign some papers. When Denise Stubberfield arrived the argument stopped and Judith Consolaro took the papers and left quickly. After this Mrs Stubberfield recalls her grandmother telling her that the argument had been about Ross getting land. That is, indeed, quite probable and the most obvious explanation is that the plaintiff and his wife were pressing Mrs Winnie Consolaro to do something about the subdivision. She also recalls discussions between Ross and his mother about payment and saw payments being made by Mrs Winnie Consolaro to Ross after looking through documents and books. She also confirmed that Mrs Winnie Consolaro used to write down all the financial details in exercise books and on occasions when payments were being discussed, she heard arguments over whether or not fuel should be taken off the bill or some other demand satisfied. Her recollection was that Ross usually agreed to his mother's suggestions. She also recalls, in the period of about 12 months before Mrs Winnie Consolaro's death, arguments between the plaintiff and his mother about how much sand was being taken from Walyunga and how much money Mrs Winnie Consolaro was getting from the sandpit.

258 Denise Stubberfield then went on to describe the extent of the work on the family properties done by Rodney including fence repairs and hay work at Bullsbrook. She confirmed that when Rodney was working for her grandmother Rodney was paid, although she did not know how much and that Mrs Winnie Consolaro was paying part of Rodney's expenses including mortgage payments. She also described the plaintiff doing a lot of different things at the farms but again the general tenor of the evidence was that it was less than asserted by the plaintiff and was comparable with what other members of the family performed.

259 In particular, Denise Stubberfield said that she had never heard her grandmother or the defendant ever say that they had promised the farming lands to anyone and that her grandfather had said that he had worked hard all his life to give the family everything. Significantly, she did not say that there had been any argument or controversy between Ross Consolaro and her grandparents over the siting of the home built by Ross and Judith Consolaro in 1976, although she had been living in her parents' house at Vine Street in those years. In cross-examination she confirmed that Michael Klarie had lived in a suburban house at Herne Hill until he died but had been employed in Perth as an architect.

260 I formed a favourable impression of Mrs Stubberfield and her reliability when giving evidence. She was intelligent, well educated, temperate and open. However it was evident that she was hostile towards the plaintiff and, not unexpectedly, had a version which was very much consistent with her mother's account of events. In re-examination, she acknowledged that Mrs Winnie Consolaro had treated Rodney with a more gentle hand.

261 I have already described in substance the effect of the evidence of Mr Robert Thompson Gordon, the husband of Norma Consolaro. The statement of his evidence is exhibit 32. His occupation is subcontractor bricklayer and much of his evidence was concerned with details of the amount of work which he did and other members of the family did as opposed to Ross Consolaro at the various farming properties from 1966 onwards. He was very dismissive and scornful about Ross' previous working history saying that he left employment at Midland Brick because he could not keep up with the work. He did confirm that Mrs Winnie Consolaro was very 'tight with money' and very secretive in her business affairs. Generally he was patronising and dismissive in his attitude towards Ross Consolaro and it was he who made the allegation that the construction of the plaintiff's home at Vine Street had been surreptitious while the parents were away on their 1976 trip and added the novel allegation that Ross Consolaro had used Mr Aloi's building licence to allow him to build the house himself. I did not regard him as a reliable witness.

262 The resolution of the plaintiff's claims involves the determination of several major controversies of fact and the identification and application of applicable legal and equitable principles applying to the facts as so determined. Obviously the controversies over whether or not Mrs Winnie Consolaro for herself and the defendant made representations as alleged by the plaintiff upon which he relied are important primary issues of fact. The defendant submits that even if some representations were made as alleged, they were not specifically clear or precise enough to warrant equitable relief which would confer any proprietary interest of the nature sought. This is because, according to the defendant's submissions, the representations were too uncertain or vague to create any basis upon which the doctrine of acquisition by estoppel could operate and that this is because the terms of the representations were themselves uncertain and also because there is no, or insufficient, identification of the property or properties in which the plaintiff would ultimately be granted an interest or when such an interest would be granted.

263 There is some limited point to these submissions because, at the time of the alleged earlier representations, such references to the property in which the plaintiff would be granted an interest were then referable, expressly or implicitly, to the Vine Street vineyard. Later representations in 1970 to 1972 were made at a time when Mr and Mrs Phillip Consolaro also owned the Walyunga property, but before Deepdale was acquired. By the time of the alleged representations in 1991 or 1992, when Ross returned to work at the farm and Rodney went back to driving at Swan Settlers, Deepdale had been sold and the properties then on hand were Vine Street and Walyunga. At the time of the alleged representation in 1993, shortly after Mrs Winnie Consolaro's death or in early 1994, where it is said that the defendant assured the plaintiff that he would keep their promises, meaning to ensure that Ross Consolaro's name was placed on the title, it was the defendant who owned or was entitled to be registered as the sole proprietor of both Vine Street (subject to the plaintiff's equity in relation to the area upon which his home was built) and Walyunga.

264 I will return to the issues of whether the particular representations were made. For the moment, I will concentrate on the issue of whether or not there was sufficient quantification of the interest promised by the mother, on behalf of the father, and later by the father in the land. The common feature of the representations were that Mrs Winnie Consolaro and the defendant would 'put your name on the title together with us'. As the earlier discussion about the acquisition and nature of the extent of the family interests in the various properties explains, both Vine Street and Walyunga were registered in the joint names of Phillip and Winnie Consolaro from 1966 onwards although Vine Street had been registered solely in the name of the defendant from the date of his acquisition in 1938 until then. There is no suggestion that anyone else's name would be placed on the title and, accordingly, the representation clearly enough was to the effect that Ross Consolaro would become one of three registered co-proprietors. In what counsel for the plaintiff referred to as the most significant of the representations alleged to be made by Mrs Winnie Consolaro in 1992, the representation was to the effect that Ross' name would be placed on the title, 'just like us'. So a question arises as to whether the representation meant, or should be treated as meaning, that Ross would be registered as a third joint tenant or whether the representation meant that he would become a tenant in common, in which case the further question is whether or not that tenancy in common would be an equal one third tenancy in common with both parents also having a similar interest or whether the parents would hold two equal shares as tenants in common with their son but as between themselves those two shares would be held as joint tenants.

265 Clearly, no specific attention was given to these possibilities in the representations alleged and it must be doubted whether the parties were fully aware of, or appreciated, the distinctions involved. I do not consider that the representations can or should be treated as meaning that Ross Consolaro would become one of three joint tenants in the land. This is because the effect would be, if the order of deaths would be as they would probably be expected, namely that Ross would survive both his parents, that the plaintiff would, by survivorship, obtain the whole interest in the farm. I do not consider that the representations were ever intended to convey, or did convey to the plaintiff an expectation that he might, by survivorship, become the sole owner of the land to the exclusion of any interests by his brother and sisters. Nor is that likely having regard to the obvious wishes of the parents to make provision for all their children. Ross Consolaro was to be preferred by being given a greater interest than otherwise would have been the case, but the other children were not to be excluded. Not only am I satisfied that this is the meaning which the representations in the circumstances meant, and were taken to mean, but it is also consistent with the principle that equity leans against a joint tenancy because survivorship unduly favours longevity and could result in disadvantage to colleagues: see Lake v Craddock (1732) 13 P Wms 157; 25 ER 101 and the discussion in Meagher Gummow & Lehane Equity Doctrines and Remedies (4th ed) [3-150], [3-155].

266 The next issue associated with the identification of the interest which these representations promised would be conferred was when the interest would be registered. All the representations indicated that this would be done some time in the future but, from 1971 onwards, the implication was plainly that it would be done in the near future as soon as the particular financial difficulties associated with that season; rates and taxes; harvesting and the like, were surmounted. Accordingly, I am satisfied that the representations should be treated on the basis that Ross Consolaro's name would be registered as a co-owner on the title well before this action was brought and (except for the 1993 or 1994 representations) before Mrs Winnie Consolaro's death in October 1993.

267 There is no suggestion in the evidence, nor was it raised in cross-examination or submissions on behalf of the defendant, that the promise to have the plaintiff's name put on the title was conditional upon him remaining on the property for any fixed or ascertainable period or, still less, indefinitely, nor that it was dependent upon him doing any specified or minimum amount of work. Nevertheless, it seems to be implicit that the promises assumed that Ross would come back to the farm and work with his parents for little reward and would remain doing so. What might have happened if Ross Consolaro's name had been placed on the title and then he later declined to work to the extent expected or moved away was not addressed. That issue does not really arise because there is no plea nor any basis for asserting that Ross Consolaro refused to work on the property or abandoned it. In making that observation I recognise that from 1980 to 1992, at his mother's request, Rodney came back to the farm and took over many, but not all, of Ross' activities and that during those years Ross pursued his own contracting business and only performed a significantly reduced range of activities in connection with the farming properties. Nevertheless, I am satisfied that the reason for this was that Mrs Winnie Consolaro desired to assist Rodney in his financial difficulties and could only do this by employing him to do much of the work that Ross had been doing and that, accordingly, Ross' greatly diminished role in the family operations over that 12 year period was a matter of parental choice. The situation however changed in 1991/1992 when Ross came back to the farm and effectively took over Rodney's work on the faith of the renewed representations made by his mother to him in specific terms.

268 I consider that the evidence points to the finding which I make, namely, that each of the representations that Ross Consolaro's name would be placed on the title with those of his parents was to the effect that that would be done in the immediate near future, that is within a period of about 12 months from the date of the particular representation. That that never occurred should not be treated as detracting from the meaning or effect of that particular representation or succeeding representations. The disappointment which the failure by the parents to fulfil the representations caused Ross and his wife engendered dissatisfaction, some cynicism on the part of Mrs Judith Consolaro, and increasing irritation by Ross leading to arguments with his parents, but I am satisfied that the representations meant and implied that his name would be placed on the title in the immediate future, as I said, within the next succeeding 12 months. Certainly I am satisfied that all the representations, save for those made by Mr Phillip Consolaro in 1993 or early 1994, should be treated as meaning that the registration of Ross Consolaro as a third co-proprietor of the lands would take place within his mother's lifetime.

269 The determination of whether or not the representations were made as alleged and whether the evidence of Ross Consolaro should be accepted in this regard involves, to a significant degree, issues of credit and reliability of the various witnesses. There are inherent probabilities arising from the circumstances in which the various members of the family were placed which I have discussed elsewhere and which in my view favour acceptance of the evidence of the plaintiff against that of his father, his sister Norma Gordon and other members of the family.

270 However, there are a number of other major subsidiary issues upon which there are important conflicts of fact. These are the controversy over whether or not the plaintiff built his house at Vine Street in a place which his parents had not authorised or permitted and without their knowledge in 1976. Associated with that is the question of whether or not Ross and Judith Consolaro were asked to pay and did pay $3,000 for the acquisition of a block of land, to be identified later, from their parents at Vine Street in 1976 as exhibit 21 records they did. That issue was resolved by the evidence which established that the money was sought by the parents and paid by the plaintiff and his wife as they always maintained. However, that does not mean that the resolution of the issue is without adverse effect upon the credibility of the defendant and those witnesses who supported his version of events. The amended defence distinctly denied that the plaintiff and his wife had paid $3,000 or any money for an area of land at Vine Street on which to build. The pleading positively asserted that the land at Vine Street upon which they ultimately built and which was later transferred to them was given to them for natural love and affection. At the commencement of the trial the defendant refused to acknowledge the authenticity of exhibit 21 and Mr Phillip Consolaro said, again and again, that no money had been paid and that the plaintiff had tricked him out of that land. I am satisfied that the false allegations that Ross and Judith Consolaro had never paid for that land, and that the land had been given to them by Phillip Consolaro, had been created and repeated by other members of the family to such a degree that they became firm articles of belief and foundation planks for asserting deceit, deviousness and greed against the plaintiff and his wife.

271 The next issue which is relevant to the credit of the respective witnesses involves the criticisms which were made against Ross Consolaro for lodging a caveat against the Vine Street land to claim an interest in the area upon which his home stood and the outrage expressed by the defendant on being informed of the existence of this caveat. The caveat was not lodged until 8 July 1993 and I am satisfied that that was relatively shortly after the visit to the land by Mr Quackenbush, the manager of Omex Petroleum, who expressed an interest in purchasing or leasing the corner area, demolishing some buildings and trees and constructing a modern service station. Mr Quackenbush had a meeting with members of the Consolaro family which must have included Mr and Mrs Phillip Consolaro, the plaintiff and, perhaps, Norma Gordon in mid-1993. Mr Quackenbush said he thought that it was some time in 1992 or 1993 and referred to some letter written in 1992 but it was pointed out by counsel for the defendant that there was an entry in Mrs Winnie Consolaro's handwriting in one of her diaries of a meeting with the fuel company representative at the house in or about July 1993 and that appears to be a more accurate indication of the actual date. However, reference to Mrs Winnie Consolaro's 1993 diary at page 730 of the agreed documents does not seem to confirm this. Either way the meeting was before the caveat was lodged and the apparent readiness of Mr and Mrs Phillip Consolaro to entertain the prospect was, I am satisfied, more than enough to increase the apprehension and agitation which Ross and Judith Consolaro already felt about the lack of the transfer of this land to them over the past 17 years or so and to justify them lodging the caveat. That is all they did while still pressing Mrs Winnie Consolaro to complete the arrangements to give effect to the subdivision which had at last been agreed upon by the Shire of Swan in 1990, yet that had still not been done.

272 There is no evidence to suggest that during her lifetime Mrs Winnie Consolaro ever remonstrated with Ross about him lodging the caveat although she plainly had been notified of it. Mr Phillip Consolaro's annoyance at being informed of the existence of the caveat and its effect is hard to explain. It can only connote that he was then refusing, or was reluctant to, acknowledge that Ross and his wife had any claim on that land. It also may have been a cause of annoyance because it presented an obstacle to his desire to sell the land. However, as events demonstrated, he did not regard it as an obstacle because he entered into an agreement to sell the whole of the land, including the area being claimed by Ross and Judith Consolaro, to third party purchasers only to find that that sale could not be completed because of the caveat and that he was not free to sell all the land. That seems to have annoyed the defendant even more. The evidence does not allow a definitive finding to be made as to why Mr Phillip Consolaro was so put out about the caveat but, whatever the true cause, it must mean that at that time he was not ready or willing to acknowledge the just claim which the plaintiff and his wife had over the Vine Street land in order to secure a subdivision which would enable them to be registered as proprietors of the land upon which their house stood.

273 In the course of final submissions, counsel submitted that one explanation may well have been that the Shire of Swan could not approve the subdivision of a smaller area upon which Ross and Judith Consolaro's house stood without extending the subdivision to the north eastern corner of the block, the intersection of Vine Street and Great Northern Highway, and in a manner which meant that the land upon which the fuel depot and the shed stood would also form part of the subdivision, in other words that the house subdivision would be larger than the more limited area which had originally been promised to the plaintiff and his wife. It seems to me to be distinctly probable that this was so and that the only way of achieving the subdivision was to create a block for Ross and his wife which included the fuel depot and the shed. At that time Mrs Norma Gordon was operating the fuel depot and the revenues from this were being shared by her with her father. Nevertheless, this was no reason to deny Ross or Judith Consolaro's claim to an interest in the Vine Street land. It may have created a situation in which there could have been further negotiation about preserving access to, or some form of lease over, the shed and the fuel depot with associated rights of way, but that was never attempted or suggested. No doubt by then the matter had dragged on so long that all that Ross and Judith Consolaro were prepared to do was to obtain an unencumbered title to the land which the Shire of Swan was prepared to have subdivided. That this may have resulted in them obtaining slightly more land, or importantly the shed and the fuel depot, was no reason to deny their claim or to assert that Ross had built the house in the wrong place back in 1976 without permission. These circumstances tell very greatly against the credit of Mr Phillip Consolaro, Mrs Norma Gordon and her husband and other witnesses to the extent that they suggested or endorsed the suggestions that Ross and Judith Consolaro had built their home in the wrong place and without permission.

274 This still does not overcome the evidence that there was an argument between Mr and Mrs Phillip Consolaro and Ross on their return from their overseas trip in late 1976 and that it had something to do with the building of the house which had been begun before their departure and which had progressed but which had not been completed while they were away. The preponderance of the evidence in this regard satisfies me that there was some kind of disagreement upon the parents' return about the building of the house, but I am unable to conclude exactly what was the cause or the nature of this disagreement. However, I expressly reject the evidence of the defendant and other witnesses that it was because the house had been built in the wrong place, without permission or knowledge by the parents.

275 The next issue over which the credit of the plaintiff is challenged concerns the burning of materials outside Mr and Mrs Phillip Consolaro's home in the day or days following Mrs Winnie Consolaro's death in October 1993. I have dealt with this issue in some detail previously and I appreciate that both Ross Consolaro and Judith Consolaro and their daughter Kyli Consolaro have given evidence that the plaintiff did not go into the house or participate in the burning of any materials at that time. Again it is not possible to make any definitive finding about this, but it seems to me to be likely that, as Louise Cepo described, Ross did come in and out of the house from time to time over the days when she and Gail Rudez were tidying up, removing items and discarding and destroying materials which were thought to be of no importance or significance. It seems reasonably clear that there was a fire burning in a drum in the backyard which was used for the destruction of rubbish and other materials which were being discarded and that Gail Rudez and Louise Cepo were throwing items into the fire. It does not seem improbable that Ross, had he gone into the house over this period of some days, would have assisted his sister and niece in throwing out materials which were thought to be of no use or significance. I consider that the most reliable version of this episode is that of Louise Cepo who said that various materials and records found in the house and in particular in her grandmother's office were all checked and examined and anything which was not thought to be of importance was destroyed and that the items destroyed included old prospectuses and documents which were not of apparent significance.

276 In making that finding, however, I am quite satisfied that there was no deliberate destruction of Mrs Winnie Consolaro's financial records or diaries with a view to destroying evidence or avoiding the detection of the financial dealings which had occurred between Ross and his mother or father. Mr Phillip Consolaro was the executor appointed under his wife's will and in due course he sought and obtained a grant of probate and embarked upon the administration of the estate. Probate was granted on 28 April 1994, that is approximately six months after Mrs Winnie Consolaro's death with the Christmas holiday period intervening. There was no suggestion that there was any difficulty in seeking or obtaining a grant of probate or that Mrs Winnie Consolaro's financial position could not be adequately identified from the records which remained. Accordingly, I consider that the criticisms which have been levelled against Ross for destroying part of his mother's financial records are entirely unjustified and are another example of a false belief being created within the family which reflected badly upon the plaintiff and which was then paraded as a criticism of him.

277 Other factors dealing with the credibility of the parties include events leading to the other legal actions instituted by Ross against his father. The first was the claim against his father alleging wrongful administration of his mother's estate in disposing of the whole of the proceeds of the sale of the Bullsbrook delicatessen to Norma Gordon. All the evidence is to the effect that Ross' objections were well founded and that Mrs Norma Gordon had made unjustified claims about the extent of her interest in the partnership with her mother over the Bullsbrook delicatessen and the ownership of that land. This was even acknowledged expressly by Rodney Consolaro whose view was that the plaintiff may have been legally right on this occasion but it was wrong and disrespectful of him to challenge his father in the way in which he did. The resulting settlement in which Ross Consolaro was paid $20,000 in full satisfaction of any entitlement he might ever have under his mother's estate also confirms this. Significantly, it also provides a part of the explanation for the great hostility demonstrated by the Gordons towards the plaintiff which, as I have said elsewhere, had been simmering for a long time.

278 I am also satisfied that the eventual resolution of the subdivision at Vine Street leading to Ross and Judith Consolaro becoming registered as the proprietors of an area of land upon which the fuel depot and the shed stood was another sore point between him and the Gordons. As stated, up until 1995, Norma Gordon had been operating the fuel depot for some years. I am satisfied that this led to friction between Ross Consolaro and his elder sister and that the relationship between Mrs Judith Consolaro and Mrs Norma Gordon was not good either. Having become registered as the proprietor of the newly subdivided block, Ross Consolaro fenced it off and that too was seen as an act of provocation. It all came to a head at Kyli Consolaro's 21st birthday party on 9 April 1995 when Robert Gordon refused the plaintiff's request to remove machinery and equipment which had been stored in the shed, which quickly led to a shouting match and then to a disconnection of the electricity supply which in turn led to the plaintiff ordering Norma and Robert Gordon off the property in the presence of his father.

279 From then on the situation quickly cascaded into greater difficulties and animosities. Mr Phillip Consolaro decided to move from Vine Street and go and live with Norma Gordon and her family at Walyunga having sold the balance of the old vineyard to third persons. Norma Gordon then suggested to her father that the division of the revenues from the sandpit at Walyunga was not appropriate and that Ross Consolaro was receiving too much money at his expense. This led to the meeting with Mr Edwick, the accountant, in which the accountant told Mr Phillip Consolaro that he was asset rich and cash poor and that he had a cashflow problem. His statement in exhibit 23 that the defendant was entitled to a reasonable return on his investment in the sandpit can only be referable to some enquiry or allegation raised with him that the sharing of the revenues from the sandpit was unsatisfactory.

280 Quite soon after that there was the episode in which Mr Phillip Consolaro ordered the plaintiff off the Walyunga farm, suspended all arrangements in relation to the sandpit operations and refused to speak to his son even at a meeting which the solicitors had specifically arranged in the hope of resolving the family differences. He has never spoken to the plaintiff since and the resolution of the plaintiff's second action for damages over an alleged breach of the contractual arrangements for use of the sandpit resulted in a payment of $100,000 being made to Ross Consolaro. The animosity displayed by the father towards the plaintiff when giving evidence was remarkable and the more pitiful because it was so unreasoning and obsessive. It is clear that the family has been driven into two camps and that those who were regularly seeing or living with the defendant have adopted his attitudes and repeated his criticisms. It is an open question as to whether or not Mr Phillip Consolaro's prejudices have been fed and maintained by the actions of the Gordon family. The probability is a real one.

281 Against all this there was never any satisfactory explanation given or attempted as to why Ross Consolaro was accused of exploiting his father over the sandpit operations or why he should be so summarily excluded from the major remunerative activity which he had pursued with his mother's and father's approval over the preceding five years. That was simply a no-go area as far as the defendant was concerned. The prospect that he may be called upon to explain his conduct and that he was obliged to pay $100,000 to settle the ensuing legal action only made his obduracy more entrenched.

282 On these major issues, therefore, I have concluded that in major respects the credibility of Mr Phillip Consolaro, the Gordons and to a lesser extent other members of the family who have supported the defendant's case is lacking. Although I have given this next step careful consideration, I see no reason why the adverse conclusions which I have formed in relation to those distinct issues should not also be applied to issues of credibility concerning the representations said to have been made to the plaintiff and the overall operation of the family enterprises from 1970 onwards. I do not consider that I have been given trustworthy accounts from the other witnesses insofar as they have sought to diminish or refute Ross Consolaro's claims of continued working at the farm on the strength of the promises made to him by his mother and father. I do, however, think that around the margins there has been some inaccuracy in the extent of the amount of work claimed to have been done and payments acknowledged, but in the overall proportion of the controversies these are only very minor and of no great significance. The real point is that on the faith of the promises made by his mother, which I am satisfied were specific and known to induce detrimental reliance, Ross Consolaro forsook a number of other employment opportunities and continued to work on the farm to a far greater extent than other members of the family and without reasonable remuneration for that work.

283 The plaintiff relied on Ramsden v Dyson (1866) LR1HL 129, 170 - 171 per Lord Kingsdown which passage was discussed and applied by Brinsden J in Cameron v Murdoch [1983] WAR 321, 351 and on Gregory v Mighell [1811] EngR 580; (1811) 18 Ves 328; (1811) 34 ER 341. In particular, the plaintiff relied on the following passage from Cameron v Murdoch (351):

Some additional points which emerge from a consideration of the cases are these. Equity arising from expenditure of land need not fail merely on the ground that the interest to be secured has not been expressly indicated: Plimmer v The Mayor and Councillors of Wellington (1884) 9 AC 699 at 713; Inwards v Baker [1965] EWCA Civ 4; [1965] 2 QB 29, 36 - 7. The court must look at the circumstances in each case to decide in what way the equity can be satisfied: Plimmer v The Mayor and Councillors of Wellington at 714; ER Ives Investment v High [1966] EWCA Civ 1; [1967] 2 QB 379 at 395, 400; Morris v Morris [1982] 1 NSWLR 61 at 64. The equity is based on circumstances which would make the exercise by the defendant of his lawful rights unconscionable: Ward v Kirkland [1967] 1 Ch 194 at 235; Inwards v Baker at 37 - 8, Jackson v Crosby (No 2) (1979) 21 SASR 280 at 298; Siew Soon Wah v Yong Tong Hong [1973] AC 836 at 845. Equitable estoppel is not confined to certain specific categories: Amalgamated Investment and Property Co Ltd v Texas Commerce International Bank Ltd [1981] 1 All ER 923, at 935, 936. The doctrine of estoppel by acquiescence is not restricted to cases where the representor was aware both of his own strict rights and that the representee was acting in the belief that those rights would not be enforced against him: Taylor Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1981] 1 All ER 897. Where relief is to be given by way of compensation in respect of improvements effected that compensation may be at present day values: Jackson v Crosby. The burden of proof that the representee did not rely on the representation lies upon the representor: Greasley v Cooke [1980] 3 All ER 710 at 713. It is not necessary to prove detriment but it is sufficient if the party to whom the assurance is given acts on the faith of it, in such circumstances that it would be unjust or inequitable for the party making the assurance to go back on it: Greasley v Cooke at 713, 714 and 715.

284 The plaintiff also relied on a passage of Dixon J in Grundt v Great Boulder Pty Gold Mines Ltd [1937] HCA 58; (1937) 59 CLR 641, 674 for a description of what conduct, action or inaction would in equity preclude the defendant from exercising his strict legal rights.

285 In the present case I am satisfied that the plaintiff Ross Consolaro did over many years, and with increasing irritation and arguments with his parents, continue to work on the family lands and for the family businesses if not full-time, nevertheless to a substantial degree, and performed much additional voluntary activity to advance the family enterprise which the father and mother conducted in partnership. It is clear that on a number of instances he tried to break away from the family and make a life and career of his own. These episodes have been described and I accept them. Each time, however, he was reeled back to the family fold by the demands or entreaties of his mother and these, with the sense of obligation which he felt, were enough for him to accept the parental assurances that he would be made a co-owner of the lands with them.

286 I am satisfied that these assurances were given on the occasions particularly described by the plaintiff but that there was, generally speaking, repeated references or allusions to them - many times when Ross Consolaro expressed dissatisfaction at being expected to work for relatively low wages or return. There is really no other reason why he would have persevered in continuing to work as he did. It also has to be recalled that although he had paid for the land and the construction of his family home at Vine Street, he had no title to the land and therefore could not sell it or mortgage it had he wished to make an independent career of his own away from the family. He was very much tied to the land with little other economic choice and this became an even greater tether as time wore on, contributing to his sense of grievance and the occasional acrimony with his parents. That he got into this position at all can be explained only because of his reliance upon his parents' promises.

287 The representations which he has identified in his statement of claim and which I am satisfied have been proved, include the representations made in 1970 when the plaintiff was working for H & R Martin & Sons and was asked to come back and work at the vineyard property. Similar representations were made in 1971 when he sought to work at Midland Brick but was diverted from that employment by his mother's entreaties. Representations to the same effect were made in 1972 which expressly referred to the farm at Walyunga. All those were made before Ross and Judith Consolaro purchased an interest in the vineyard land by paying the $3,000 in April 1976 and thereafter paid for the construction of their home on that land.

288 I accept that representations to the same effect were made to Ross Consolaro by his mother in about 1992 when he was persuaded to come back and work at the farm so that Rodney Consolaro could go and work at Swan Settlers. I am also satisfied that Ross raised the matter with his father shortly after his mother's death in 1993 and was told that the father would keep his promises and that he should proceed to continue to work at the Walyunga land and particularly at the sandpit.

289 Not only is this account of events credible when viewed from the point of view of Ross, it also makes sense if looked at from the perspective of Mr and Mrs Phillip Consolaro. They needed help and assistance in doing a whole variety of farm work, mechanical work and carting for the family operations but could not afford to pay proper wages for it. The only hope of having the work done to allow the family enterprises to continue as they hoped they would was to have somebody perform that work on sub-economic terms. No one but a close relative could be expected to do this and the only incentive which could be offered to a relative was a promise of eventual participation in the benefit derived from the retention of the ownership of the property. The parents had no other currency which they could offer to their son and it was obvious that a tangible inducement was necessary to persuade him to work on the family enterprises in a manner which would be far less remunerative for him and his family than paid external work.

290 I do not consider that there can be a precise determination of the exact amount of work which Ross Consolaro, or for that matter Rodney Consolaro or others, performed in the various family activities from about 1964 until 1995. Too much time has gone by, there are few reliable records, and the mutual family hostilities have since become so intense that the oral accounts which have been given are not fully objective. Nevertheless, I consider that the plaintiff did work on the various enterprises largely as set out in exhibit 4, notwithstanding that there may be some overstatements in that attempted reconstruction. In other words, I am satisfied that Ross did work continually on family operations for all periods from the early 1960s up until 1995, notwithstanding that for the periods which he has identified he was also engaged in business for his own personal remuneration.

291 Ross Consolaro's increasingly strident demands for a subdivision of the vineyard land to give him security for his home and for better remuneration became increasingly irritating to his parents in the years before Mrs Winnie Consolaro's death. However, the blame for this cannot be solely attributed to the plaintiff. His wife and children were in an extremely delicate position when it came to their interest in the house and land at Vine Street upon which they were living and which had not been subdivided or transferred to them. The plaintiff obviously recognised the extreme vulnerability of his position when he learned that some thought might be given by his parents to selling or leasing part of the land to the Omex Oil Company for a fuel station. His apprehensions were not unjustified because, without him knowing it, his parents had mortgaged the whole of the property repeatedly since he had built the house to finance the overall family operations including the acquisition of Deepdale. The plaintiff was right to fear that his father would not respect his interest in the vineyard property because, after the mother's death, Mr Phillip Consolaro, as sole owner by survivorship of the Vine Street property, attempted to sell the whole of the land (including the area where Ross' home was located), to third party purchasers. It was only Ross Consolaro's caveat that saved him from the potential of losing the land altogether but the father was irritated that the sale was held up and that he had to pay rent to the purchaser until the subdivision had gone through and the balance of the land could be transferred.

292 Without intending to seem insensitive to Mr Phillip Consolaro with his present age and infirmities, it is clear that he did not respect his children's rights. He regarded himself, with his wife's approval, entitled to make any decision whatever about the farming properties and he treated his children as being obliged by honour, to accept whatever he did and to trust in his wisdom and justice for the decisions which he would make. However Mr Phillip Consolaro was not able, and is not able, to make such wise and impartial decisions because of the obsessive and mistaken attitude which he has about the plaintiff's conduct particularly regarding the building of the plaintiff's home at Vine Street and about his eviction of Ross Consolaro in 1995 from any participation in the sand business at Walyunga. Even now during this trial, there was no attempt to justify the decision taken by the father to evict Ross from the sand mining operations. There was an aggrieved acceptance that the legal position had been vindicated by the payment of $100,000 but no appreciation of the major disruption which this had caused or that the eviction was unjustified. This is just one of several aspects which demonstrates that the defendant sees events only through his own distorted lens and that his resentment towards the demands of the plaintiff are due, to a large degree, not to any lack of merit, but because of the defiance, and lack of respect which he believes the plaintiff's demands reveal. It is a very sad story indeed but whatever the family animosities may be and however insensitively the plaintiff may have behaved to his mother and father, in the later years, I consider that he has demonstrated an equity which should be made good in view of the years which have passed, the opportunities which the plaintiff has foregone and all the work which he has done for meagre returns on the family properties.

293 The plaintiff approaches this case not on the basis that there should be some kind of quantum meruit equity which recognises the value of his contributions to the land over the years. That false complexion of the plaintiff's claim is one which the defendant has tried to meet by much evidence designed to dilute the extent and value of the work performed by the plaintiff on the properties. Rather, the plaintiff's claim is that specific assurances were made, firstly, that his name would be placed on the family titles as an equal owner with his parents, and that it was these which were relied upon and engendered an expectation that the plaintiff would become, in effect, a tenant in common to the extent of one equal third undivided share in the properties.

294 By 1992 when another of the representations was made by Mrs Winnie Consolaro and Ross came back to the land exchanging jobs at Swan Settlers with Rodney, the Deepdale farm had been sold and all that was left was the property at Vine Street and the farm at Walyunga. The representations then made were referable to a third interest in both those properties. By the time Mrs Winnie Consolaro died and there were discussions between Ross and his father in late 1993 or early 1994 about continuing the sand mining operation, and when the father said that the promises would be honoured, the representation was obviously referable to the Vine Street property and to Walyunga.

295 Since then all of Vine Street, except for Ross and Judith Consolaro's subdivided block, has been sold. A small part of Walyunga had previously been subdivided and given to Louise Cepo and her husband. However the plaintiff does not seek to make anything of this or to claim any greater interest than a one equal third share in Walyunga. Had that promise been fulfilled before Mrs Winnie Consolaro died then Walyunga would have been registered in the names of Mr and Mrs Phillip Consolaro, presumably as joint tenants as to two one-third undivided equal shares and Ross Consolaro as a tenant in common of one equal undivided third share. In that eventuality Mr Phillip Consolaro would have acquired his wife's one-third joint interest by survivorship on her death and would be entitled to be registered as a tenant in common with Ross Consolaro as to two undivided equal shares with Ross having the remaining one-third undivided equal share. It is on this basis that the claim for a one-third share has arisen and is maintained.

296 A question arises as to the mortgage encumbrance on Walyunga which presently exists. That is the mortgage to Westpac Banking Corporation No C945764. Whether that is an encroachment on the equity claimed or not, the plaintiff does not seek to maintain that the defendant should be solely liable for that mortgage or that adjustment should be made on the footing that he is. The plaintiff is content to take a one-third undivided interest as tenant in common subject to the mortgage and, if anything, this is a concession on his part. Nor does he seek any relief in relation to the small area of five acres which has been excised and given to his cousin Louise Cepo and her husband.

297 I am satisfied that the plaintiff has made out his claim and that he is entitled to a declaration and orders to the effect that the defendant, Phillip Consolaro, holds the whole of his interest in the Walyunga property, subject to existing encumbrances, in trust for himself as to two undivided third shares as tenant in common and as to one undivided share as tenant in common in favour of his son Ross Joseph Consolaro. If necessary, orders can be made requiring the execution of any transfers or other instruments necessary to allow the plaintiff to become registered for his one-third interest in that land or, at the plaintiff's election, to be paid compensation equal to a one-third value of the land, less encumbrances, at the time when such compensation is to be calculated and paid.

298 I will hear from the parties as to the precise form of orders, declarations or other relief which should be made to give effect to this decision.