Coster v Coster

[1970] AC 777 Protheroe v Protheroe [2023] NSWSC 188 Q v E Co (2021) 383 ALR 469; [2020] NSWCA 220 Shepherd v Doolan [2005] NSWSC 42 Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 Watson v Foxman (1995) 49 NSWLR 315 West v Mead [2003] NSWSC 161; (2003) 13 BPR 24, 431 Woods v McKinlay (No 2) [2021] NSWSC 1510 Category: Principal judgment Parties: David Alan James Coster (Plaintiff) Robyn Mary Coster (Defendant) Representation: Counsel:

S Hill (Plaintiff) N Bilinsky (Defendant)

Alex Irving Solicitor (Plaintiff) Everingham Solomons (Defendant) File Number(s): 2022/299016 Publication restriction: Nil

JUDGMENT

1. The defendant, Mrs Robyn Coster, is the registered proprietor of a 700 acre farming property near Tamworth, NSW, called Oakhampton. The plaintiff, Mr David Coster, is her son. Without intending any disrespect, I will refer to David and Robyn by their first names.
2. Robyn is 69 years of age and lives at Oakhampton, which she continues to work as a farming property. David is 47 years of age and is the middle child of the marriage between Robyn and Mr Alan Coster. That marriage ended acrimoniously when David was still at school. Until the middle of 2022 David had lived at home with his mother, on and off, for most of his life. At the time of the hearing he was living with his father.
3. The gist of the plaintiff's claim - at least at a high level of generality - is that he lived and worked on the farm with his mother his whole adult life in reliance on express promises, or perhaps a common assumption, that his mother would eventually give the farm to him. He claims that his reliance was detrimental and that it would now be inequitable to allow his mother to continue to own Oakhampton entirely. His pleaded case was that he was entitled to the entirety of Oakhampton, a claim from which he eventually retreated. He now seeks a declaration that 50% of the property is held on trust for him. His alternative case is that he and his mother were engaged in a joint endeavour which has come to an end without any attributable blame. In this respect, he claims that he is entitled in equity to a charge over Oakhampton to secure the contributions made by him to their joint endeavour, which, on the basis of an expert report, were said to be valued at $1,227,814.
4. Until the conclusion of the trial, the plaintiff also pressed other claims for relief. He contended that his mother's conduct was unconscionable within the meaning of the Competition and Consumer Act 2010 (Cth), Sch 2 - Australian Consumer Law. He also contended that he was entitled to relief under the unfair contracts provisions of the Industrial Relations Act 1996 (NSW). He also pressed claims in detinue and conversion over various chattels. These claims were not pressed in final submissions.

The plaintiff's claim

1. The plaintiff's more specific claims are best understood in the light of the basic facts for which he contends. Those facts were succinctly identified in his amended statement of claim filed 19 July 2023 as follows. "1. The plaintiff is the defendant's son. 2. The plaintiff was born [in] January 1977. 3. On about 5th June 1992 the defendant became the registered proprietor of a half share of the land described as Lot 84 in Deposited Plan 70521 and known as Ilfracombe, [XX] Bona Vista Road MENDOORAN NSW 2842 (Ilfracombe). 4. On about 19th March 1997, the defendant became the registered proprietor of the whole of the fee simple in Ilfracombe. 5. From about late 1992 to about the 26th September 2002, the defendant conducted the business of farming and grazing on Ilfracombe (the Farming Business). 6. In about late 1992 the plaintiff and defendant entered into an oral, express agreement pursuant to which (the Parties' Agreement): (a) The plaintiff agreed to work for the defendant in the Farming Business for little or no remuneration. (b) The defendant agreed that, if the plaintiff does so, she will eventually give Ilfracombe to him. 7. Between about late 1992 and about September 2002, relying upon the Parties' Agreement, the plaintiff worked for the defendant in the Farming Business on Ilfracombe for little or no remuneration. 8. In or about September 2002, the defendant sold Ilfracombe and purchased the land described as Lot 196 in Folio 755340 and known as Oakhampton, [XX] Old Winton Road, Somerton, NSW (Oakhampton). 9. The defendant's purchase of Oakhampton was funded or funded in part from the sale proceeds of Ilfracombe. 10. In contemplation of the defendant selling Ilfracombe and purchasing Oakhampton, the plaintiff and defendant entered into an oral, express agreement, the effect of which was to vary the Parties' Agreement so as to substitute Oakhampton for Ilfracombe (the Varied Agreement). 11. From about October 2002 to about the 28th July 2022, the defendant conducted the Farming Business on Oakhampton. 12. Between about October 2002 and the 28th July 2022, relying upon the Varied Agreement, the plaintiff worked for the defendant in the Farming Business on Oakhampton for little or no remuneration. 13. From about early June 2022 the relationship between the plaintiff and the defendant deteriorated. 14. On or about 28 July 2022 and again a few days later, the defendant, through the agency of her brother-in-law, Ray Brown, ordered the plaintiff off Oakhampton. 15. In August 2022, the defendant orally and expressly told the plaintiff that he will not be given Oakhampton or anything else. 16. The defendant remains the sole registered proprietor of Oakhampton."

Uncontroversial facts

1. Much of the relevant history was not in dispute.
2. The defendant was born in April 1955. In the early 1970s, she married Alan Coster. There were three children of that marriage: Sandra, born in 1974; David, the plaintiff, born in 1977; and John, born in 1979.
3. From the time they were married until 1979, Robyn and Alan lived on a dairy farm owned by Alan's parents in Denman, NSW. At some point, they purchased and briefly lived on a property in Gresford, NSW, but sold it within about a year. They then purchased another dairy farm in Denman called Kingston.

Ilfracombe, 1992 to 2002

1. In 1992, Robyn and Alan also purchased Ilfracombe, a mixed-use grazing property of about 1,800 acres near Mendooran, which is a small village about 75km from Dubbo. The purchase price was $400,000.
2. Robyn and Alan purchased Ilfracombe so that they could run dry cattle (ie not dairy cows) and younger stock, as well as sheep. Alan was familiar with the area because he had been travelling to the Mendooran area for many years to buy grain. He was familiar with the paddock setup and the infrastructure on the property.
3. By 1992, Robyn and Alan's relationship was starting to break down. Robyn, David and John moved to Ilfracombe to live. Alan stayed at Kingston. Sandra, who turned 18 in 1992, moved out of home altogether.
4. Robyn and Alan conducted a farming business in partnership, however the evidence does not allow me to reach any particular conclusion as to whether Ilfracombe was a partnership asset. In any event, at the time of purchase Ilfracombe was held by them as joint tenants and that is how the title remained until their divorce in 1997. Title to Ilfracombe was at that point transferred to Robyn as part of a property settlement.
5. David left school in Year 10 and, from about 1994, took various jobs, including as a part-time yard hand with Cleve Olsen, a stock and station agent in Dubbo. David worked with Cleve Olsen on sale days, usually two days each week, earning about $120 per day. He also did general roustabouting in shearing sheds in the Mendooran area, as well as other casual work such as driving tractors here and there.
6. Robyn did not like Ilfracombe. Droughts were common. The family planted crops, although the extent of this activity was a matter of dispute. They ran both sheep and cattle, but generally tried to de-stock during periods of drought. During one drought, Alan gave Robyn about 130 round bales of hay to feed the livestock. Ilfracombe was not profitable. It was, as Robyn described, very marginal country. It was a long way from town and the road to town was poor. Robyn felt isolated living there.
7. Following school and into adulthood, David continued to live at Ilfracombe. The extent of David's contribution to work on the farm, both at Ilfracombe and later at Oakhampton, was one of the main areas of dispute, however on any view he did work on the farm at least to some extent while-ever he lived there.

Oakhampton, 2002 to present

1. In 2002, Robyn sold Ilfracombe and purchased Oakhampton. The circumstances in which this occurred were disputed and I will say more about these transactions in due course. Oakhampton is a much smaller property - around 700 acres - and is located about 250km north-east of Mendooran in Somerton, about 25km west of Tamworth.
2. In 2002 while still living at Ilfracombe, David began a relationship with a woman named Bridgette, who lived in Attunga near Tamworth. David would travel long distances from Ilfracombe to spend time with Bridgette. Oakhampton, on the other hand, is located very near to Attunga.
3. The fact that David was in a relationship with Bridgette in Attunga may have been one of the reasons that Robyn chose to move to that general area, but it was far from the main reason. Robyn wanted a smaller, more manageable and more viable property. By 2002, Sandra was living in Tamworth and John was at university in Armidale studying to become a teacher. Robyn wanted to be closer to them. She also wanted a property that was less isolated and closer to town. So far as Robyn was concerned, Oakhampton was a much better place for her to live in many respects.
4. Robyn used the proceeds of sale of Ilfracombe together with a bank loan of about $140,000 to purchase Oakhampton. The purchase price was around $620,000. The bank loan was secured by a mortgage over the property.
5. David and Bridgette rented a house not too far from Oakhampton, although David would often stay at Oakhampton. In 2004, David and Bridgette had twin boys and from then on David spent most of his time in Attunga, with Bridgette and the twins. He would return to Oakhampton from time to time.
6. Between 2003 and 2008, David's brother John also lived at Oakhampton for much of the time. John is a teacher and, at that time, was working in public schools in and around Tamworth. He had his own room in the house at Oakhampton. Robyn did not ask John to pay rent or board but John did often contribute to the household by bringing home groceries. John also assisted with farming tasks on Oakhampton from time to time.
7. In 2005, Robyn put Oakhampton up for sale, however it was passed in at auction.
8. David and Bridgette separated in 2007 and David returned to live at Oakhampton. After their separation, the twins would come to Oakhampton at times when David had custody of them, usually on weekends. They had their own room there.

Somerton Solar

1. In late 2020, Robyn received a call from Victor Bocioc, a representative of Oriens Energy, who expressed an interest in investigating the development of a solar farm in the Somerton area. Mr Bocioc travelled to Oakhampton to meet with Robyn and they discussed the prospect of acquiring Oakhampton for the purpose of the solar farm project. Emails were exchanged via David's email address because Robyn did not use email. Naturally, Robyn and David discussed the issue but I will deal with the question of what was said when I come to their evidence more generally. Robyn also discussed the issue with her solicitor.
2. On 7 April 2021, Robyn entered into a deed entitled "Option to Purchase Deed" with Somerton Solar Farm Pty Ltd (Somerton Solar), a company associated with Oriens Energy. Under that deed, Robyn granted a purchase option for a period of 24 months. Somerton Solar was required to pay a fee of $30,000 for the first year and $50,000 for the second year. There was a further fee of $50,000 to extend the option period. The exercise price was $7,000,000 if the option was exercised within the first year, $7,500,000 if exercised in the second year, and $8,000,000 if exercised during any extension period. The deed was terminable by Somerton Solar giving 20 days' written notice.
3. Somerton Solar did not exercise the option. Notice of termination was given in about April 2022.
4. Almost immediately after Somerton Solar terminated the option agreement, the relationship between Robyn and David suffered a downturn. The parties gave quite different accounts of how and why this occurred. I will deal with this issue later in these reasons. On any view of things, David left Oakhampton altogether in July 2022 and has not returned.

Robyn attempts to sell Oakhampton

1. In late 2022, Robyn sought to sell Oakhampton with a view to retiring from farming. She found a purchaser who was ready, willing and able to enter into a contract to purchase the property in October 2022. Correspondence from the solicitor for the proposed purchaser suggests that the purchase price would have been $3,500,000, however the sale did not take place because David lodged a caveat.
2. There is no real evidence of what the process was surrounding this proposed sale - no appraisals or the like were in evidence. The only conclusion I can draw is that by this time, David was intent on pressing his claim to Oakhampton.

Controversial facts

1. The foregoing chronological account does not address some important matters that were the subject of dispute, namely: 1. Whether Robyn made the alleged representations. 2. The extent of the farming activity on Ilfracombe and Oakhampton and the extent of David's contribution to it. 3. The circumstances surrounding the falling out between Robyn and David.
2. It is convenient to deal with those matters in turn, but only once I have made some general comments on the witness accounts on which my findings are based.

Observations about the witnesses generally

1. Both Robyn and David deposed affidavits and were cross-examined. They each had different accounts of the disputed matters but, in their own way, each was a straightforward and direct witness. Neither witness was prone to making speeches, and they both made fairly candid admissions against interest in the witness box. For example, Robyn accepted that she had generally tended to underplay the extent of David's contribution to the farms over the years.
2. I had the impression that neither party was much interested in wasting my (or anybody else's) time, which was to their credit.
3. The representations on which David's case largely depend were made a very long time ago. The first representation was allegedly made in 1992, when he was just 14 or 15 years old. The second representation was allegedly made in 2002, some 22 years ago. David does allege a few other conversations with his mother in which the topic of his eventual ownership of Oakhampton was raised, but these are fleeting and also took place many years ago. Furthermore, David does not suggest that any other person was present when the key representations were made and he does not say that he ever repeated them to anyone or otherwise recorded or memorialised them in any way. There are therefore no contemporaneous accounts or documents to assist me in resolving the question of whose recollection is more reliable, although there are some documents that may throw at least some light on the issues.
4. It was also not submitted that either party was a generally unreliable or dishonest witness. Rather, each party submitted that the other's account on the key disputed issues was unreliable and that their own account should be preferred.
5. The authorities on how the Court should approach the evidence of statements made long before the evidence is given, of a witness whose account is not directly corroborated, where the witness would be a beneficiary of the Court's acceptance of the evidence, were helpfully collected by Black J in In the matter of Hillsea Pty Ltd [2019] NSWSC 1152 at [16]-[22]. I have had regard to all of the authorities referred to in those paragraphs but draw particular attention to the following.
6. In Watson v Foxman (1995) 49 NSWLR 315 at 319, McLelland CJ in Eq said: "… human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience."

Did Robyn make the 1992 representation?

1. David's evidence of the 1992 representation is as follows: "After my parents' separation, my mother spoke to me and said: 'We have to make a decision. Do we sell the farm and buy a house or do we keep going with the farm? What are we going to do' I replied: 'You will have no income in town. I say we keep the farm going. Otherwise we will have no income, and you will have no job' My mother replied: 'Alright. If you can help me then you will get the farm'".
2. Robyn flatly denies that this discussion took place.
3. It is inevitable that there must have been some discussion about the prospect of Robyn staying on Ilfracombe and continuing to farm at about the time of her separation from Alan. However, there are good reasons for concluding that any such discussion was not in the terms alleged by David and that, even if the general topic of farming and inheritance was touched upon, it could not have been (and, I find, was not in fact) understood by David to be a binding promise or representation that if he chose to stay home and work the farm, it would eventually be his. I reach this conclusion for the following reasons.
4. First, in 1992 Alan and Robyn were newly separated but not yet divorced. In the period 1992 to 1997, when they finally reached a property settlement, they were joint owners of Ilfracombe. It is unlikely that Robyn would have made any promise to her 14 or 15 year old son at that time as to ownership of Ilfracombe. Ilfracombe was not hers to give at that point.
5. Secondly, Robyn's circumstances in 1992 were quite strained. She had separated from her husband and was living on a farm which she did not particularly like in very marginal country with two sons still in school. It is unlikely that she decided at that point to make a promise to David in the terms he alleges. That promise, if made, would be one that would dramatically limit her ability to provide for herself and her other children and would completely limit her ability ever to retire off the farm. It is important to keep in mind that the alleged representations were all as to David's entitlement to the whole of the farm, not some share of it as he now accepts is an appropriate outcome (on his case). His evidence is that the whole of the farm was promised to him.
6. Thirdly, the parties did not behave in a way that suggested such a representation had been made, either in the period immediately after 1992 or indeed at any other time. David says that he would have liked to have become a mechanic and that he did not do so on account of his mother's exhortation that he should work the farm with her. But there is absolutely no suggestion that his mother or anyone else ever discouraged him from gaining that or any other trade qualification. Nor did his mother or anyone else ever discourage him from finding work, including full-time work, off the farm. In fact, when David was working in the sale yards at Dubbo, his mother would drive him there. This is not a case like Protheroe v Protheroe [2023] NSWSC 188, in which the plaintiff father positively discouraged his son from accepting a university offer. At [44] he was quoted as having said "do not expect [the farm] to be here for you when you get home." It is true that David did continue to do work at Ilfracombe and Oakhampton even when he was not living there and also when he was working full-time, but on any view (and as he accepted in the witness box) his commitment to the farm was much less at those times.

Did Robyn make the 2002 representations?

1. As I have just noted, when Robyn decided to sell Ilfracombe and purchase Oakhampton, David did not regard the move as being inconsistent with the 1992 representation. He accepted in cross-examination that, at the time, he thought his mother had the autonomy to buy and sell her property despite whatever had been said in 1992.
2. Robyn did however discuss the move with David. They looked at properties together and they must have discussed them.
3. David's evidence is that there were two relevant discussions with his mother about the sale of Ilfracombe and the purchase of Oakhampton. Ilfracombe was sold in September 2002. David's evidence is as follows: "Before Ilfracombe was sold, I spoke with my mother about the change of properties. I said: 'It suits me to move to Tamworth as my partner is there. Do we carry on with me working a farm there?' My Mother replied: 'If you keep working a farm, then you will get it.'"
4. David says they had a further discussion after Oakhampton was purchased. He was not specific about when the discussion occurred but thought it must have been in 2002 or 2003. His evidence is as follows: "I recall saying: 'I have other work lined up. Are you still agreeable to me working this place?' My Mother replied: 'Yes. This place will be yours if you keep farming it.'"
5. Robyn denies that they had these discussions. She says she did not consult David but did tell him they were moving. On her account, he said: "That's good. I'll be much closer to Bridgette."
6. I have a little difficulty with Robyn's account of what occurred in 2002. It seems unlikely that there was no consultation between her and David whatsoever because, at that point, he was living with her at Ilfracombe and had been helping her work the farm. David was 25 years old by this point. It seems quite likely that they did at least look at and discuss properties in the Tamworth area before Robyn decided which one she wanted to buy.
7. However, I am again not persuaded that Robyn made representations to David as to his eventual ownership in the terms alleged. By this point, Robyn and Alan had divorced and Ilfracombe was Robyn's only asset. Again, the representations were not made or repeated in the company of any other person, nor is there any contemporaneous note of them. David did not tell anyone at the time that the representations had been made. Nor did he act in a way that suggested such representations had been made. It is again important to recall what is in issue here, namely whether Robyn made a promise that David would eventually own the whole of Oakhampton. It is not David's case that his mother promised that they would eventually own the farm together; it is that she promised that if he worked the farm it would be for his eventual sole benefit. Furthermore, it is his case that she made this promise without also seeking any commitment from him that he would actually stay and work on the farm. David, in fact, never made such a commitment to Robyn. Had he done so I may have been more likely to find that Robyn made the alleged representations.

Other evidence about the alleged representations

1. David also pointed to other evidence in support of his claim that his mother had promised him the farm. For example, he called Alan Coster (his father and Robyn's ex-husband) as a witness who claimed that Robyn had said to him "David is going to get the place" on several occasions over the years. He claims that this was said in telephone calls or when he was visiting Ilfracombe and that it was said in the context of "talking about work David was doing on the farm".
2. David also called Mrs and Mr Killen. Kath Killen is Alan Coster's sister. Wayne Killen is her husband. Mrs Killen claims that in 2003, in a telephone discussion, Robyn said "I am leaving Oakhampton to David. I have some other money for Sandra and John."
3. Mrs Killen also recounts a discussion she claims to have had with Robyn in about 2019 or 2020. According to her, they had the following discussion: "To my recollection we had taken our caravan on that trip and we stayed that night at 'Oakhampton'. After dinner we visited with Robyn and the topic of succession came up again. Robyn said 'I have been thinking, what will I do with the farm. If I die David should get it - he has worked so hard. If I have to sell it will be 50% each for me and David.' To the best of my recollection I replied with words to the effect: 'Well David has certainly done a lot of work for the farms. He has given the best years of his life to the properties.' Robyn said: 'I can leave John and Sandra some money I have so they have something.'"
4. Mr Killen recalled similar discussions. He claims that, in 2003, Robyn said: "I have done a will leaving the farm to David. Sandra and John will get the cash. Sandra has a job and a house, and John has his work. David has nothing."
5. He also claims that Robyn said to him in about 2020: "David will get the farm."
6. David also called Mrs Naomi Munro. Mrs Munro was married to Robyn's brother, Bill, who died in 2007. Mrs Munro recalls a conversation from 2004 in which she claims that Robyn said that "David will be looked after in the end. He will be getting the farm. John is a teacher. David is the one who stayed at home."
7. She also recalls a conversation at a time when Sandra was apparently having some relationship issues in which Robyn supposedly said: "Sandra is having issues with Clayton…I will have to help Sandra out if she leaves Clayton. David will get the farm but I will have to make sure I help Sandra out."

The extent of farming activity and of David's contribution to it

1. The parties devoted a large amount of time and effort to the question of just how much farming activity took place on Ilfracombe and Oakhampton and how much David and Robyn each contributed to it.
2. For example, David's evidence was that Ilfracombe ran about 1,200 ewes and 200 mixed cattle. Alan's opinion was that it ran about 120 breeders (cattle) and about 1,200 sheep. David explained that "when you are running 120 breeders, after keeping some heifers you would have available for sale in any one year about 100 young cattle for sale and some aged cows."
3. Robyn's evidence was that numbers would fluctuate with the season but that she typically had about 140 cattle and 400 sheep on Ilfracombe at any one time. According to Robyn, on average she sold about 50 cattle and about 10 bales of wool each year.
4. The evidence as to all of these issues was prepared and tested in cross-examination at a time when David still advanced his primary case as pleaded, which was that Robyn was now entitled to no ownership interest whatsoever in Oakhampton. It was only in final submissions after the close of evidence that David retreated to his present claim, which is as to half the farm. I am also conscious that much of the evidence and argument going to the extent of David's involvement in the farm proceeded on the mistaken understanding by David (reflected in his opening written submissions) that Robyn's case was that "David did no work", which was and is an incorrect understanding of her case.
5. It is not in these circumstances necessary to resolve all of the myriad disputes between these parties as to precisely who did what farm work, when it was done and the intensity with which the work was accomplished. It is however appropriate to deal with a couple of broad areas of dispute.

Cropping

1. According to Robyn, as already mentioned, crops were planted at Ilfracombe on only a few occasions. They planted oats or barley for grain or stock fodder. She says that at no point would they have planted more than 100 acres in one season. On both occasions, her recollection is that she paid their neighbours - who had better machinery and more knowledge - to plant and spray the crops but that David did the preparatory work in ploughing and getting the fields ready for planting. However, she accepts that it is possible that in one year, David did the planting.
2. On the other hand, David said in his first affidavit that he planted crops such as oats and wheat every year at Ilfracombe. He said he planted around 200 acres a year and that on occasion he planted up to 400 acres. He described the significant physical labour involved in these activities. He said that in one year, they planted Saia oats and sold 10 tonnes in one sale. The oats had been bagged into 40kg bags and when the truck turned up to collect it, David and the driver loaded the 10 tonnes by hand.
3. In a later affidavit in response to Robyn's evidence that they only rarely planted crops on Ilfracombe and Oakhampton, David said that grain was planted "every year on Ilfracombe and Oakhampton apart from a few years when it was so dry there was no point." He said there was no crop in 2019, for example.
4. I have no reason to generally disbelieve either party, but they cannot both be correct about these issues. For her part, Robyn accepted that she did have a tendency to downplay the amount of work that David had done. On the other hand, she never disputed that David did do farming work at Ilfracombe and then at Oakhampton over the whole of the relevant period.
5. I accept Robyn's evidence as to the extent of cropping on both Ilfracombe and Oakhampton. Her evidence is generally corroborated by a number of witnesses who were well placed to make dispassionate observations about what was occurring on the properties, particularly Oakhampton, over the years.
6. Mr Ray Brown is married to Robyn's sister and was a frequent visitor to both Ilfracombe and Oakhampton, especially after 2010. He and his wife would visit several times a year and stay for about a week at a time. He described his own farming experience, which was far more extensive than that of either Robyn or David. He expressed the view, which appears to me to be well founded, that Oakhampton has never been run to its full capacity during the entire period Robyn has owned it. He also points out that Oakhampton is relatively small and not of a size to warrant a full-time employee.

Livestock

1. I have already referred to the parties' competing accounts of how much livestock was run on each of Ilfracombe and Oakhampton. A difficulty with resolving this issue is that the amount of livestock at any one time was variable. Cattle and sheep were bought and sold with some regularity. Furthermore, the numbers would change as calves and lambs were born each season. Even the amount of livestock recorded as trading stock in the accounts may not be a reliable indicator of the number.
2. I have not been able to determine with any degree of certainty how much livestock was present on either Ilfracombe or Oakhampton. However, not much turns on this issue. The more pressing issue is whether David was involved in looking after the livestock that was there (and if so, the extent to which David was involved) and whether or not the properties were being run to their full capacity.
3. In this respect, I do accept David's evidence that he did much of the physically demanding work at both Ilfracombe and Oakhampton that was not done by contractors. So much was not in dispute. So far as the cattle was concerned, he did the kinds of tasks he claims to have performed, such as marking (castrating) cattle, tagging cattle, pulling calves if cows were in difficult calving, driving the tractor and so on. For the sheep, he marked and tagged lambs, assisted ewes with lambing if required, crutched sheep from time to time and so on. He also did a fair amount of general farm maintenance.
4. However, he did not do all of it. Robyn also did some of this physical work, as Mr Brown attests. He accompanied her whilst tagging cattle and drenching sheep. I also accept Robyn's evidence that David did not work with the same formality or dedication that one would expect of an owner or even an employee.
5. Mr William Northey, a lifelong shearer who did the shearing at Oakhampton between 2014 and 2022, gave evidence in relation to this issue.
6. Mr Northey was well placed to make observations about farming activity on Oakhampton. He is 70 years old and has lived and worked on sheep stations for most of his working life. He is currently a store manager at a woolbrokers, Fox and Lillie, in Tamworth. He has shorn on hundreds of properties of various sizes and of varying qualities. He has also owned his own properties and run sheep.

General farm work

1. It is relevant to again refer to the evidence of Mr Brown and Mr Sharpe that Oakhampton was not run to its full capacity and was not run with anything like the vigour of a commercial undertaking. Mr Sharpe's opinions in that regard are limited to the period since 2020, but Mr Brown was in a good position to observe the general operations during the whole of Robyn's period of ownership.
2. In his evidence, Mr Weller observed that machinery at Oakhampton, such as the tractor and other heavy equipment, usually sat outside in the weather and was rarely used. There were accumulating amounts of scrap steel, chemical drums and old machinery lying in the grass around the sheds. Mr Sharpe, as noted above, made similar observations about the machinery lying in disuse.
3. It is also relevant to note the evidence of Mrs Wing and Mr Weller, to the effect that crops were not regularly or extensively planted on Oakhampton.
4. Robyn also pointed out, and I accept, that the work on both Ilfracombe and Oakhampton was sporadic and, apart from checking livestock, watering systems and fencing, there were long periods where not much work was required.
5. However, there was usually at least some kind of work to be done. There was evidence that David had performed fencing work on Oakhampton over the years. David's case is that he did this work. Robyn says there was usually not that much work to be done, but that when there was, such as the fencing, she usually helped.
6. Mr Weller was familiar with the fencing work which David referred to. He saw it being completed and observed both Robyn and David physically working on it. He also points out that the total amount of new fencing work which he observed was in two sections, one of about 200-300 metres and another of about 300-400 metres. He estimated that those sections, together, would take about four days to complete.
7. I find that there was fencing work performed on Oakhampton over the years but that it was not extensive and that both Robyn and David physically performed it.
8. Robyn also managed the farm. It was Robyn who had accounts with the local agents, although Robyn and David were both involved in livestock sales. Robyn managed all of the finances and taxes. David, it seems, knew very little about those aspects of the business.

Conclusions as to the extent of farm work and David's contribution to it

1. In the light of the matters addressed above, it is possible to draw some general conclusions as to the extent of farm work performed on both Ilfracombe and Oakhampton and David's contribution to it.
2. The overall workload at Ilfracombe and Oakhampton was more than Robyn and David could handle on their own, not because of the size of the farming operation but because they simply did not have the machinery or skills to do it. It is for this reason that Robyn employed contractors for tasks such as shearing, planting and spraying.
3. At the same time, the farm work that the two of them did do was not terribly intensive as farming work goes. Neither farm was worked to capacity. They were rarely profitable. Farm work never prevented David from seeking out work elsewhere, including working two days per week at the sale yards and doing odd jobs such as roustabouting in the local shearing sheds whilst he lived at Ilfracombe. Nor did it prevent him taking full-time jobs for years at a time, which he did during many years in which he lived at Oakhampton. In those periods when he did take full-time work, I infer that there was simply less farm work done at Oakhampton overall. He did help keep Oakhampton running during those periods, but more so did his mother, together with the various contractors whom his mother engaged, as well as his brother.

The circumstances under which David left Oakhampton

1. The question of why David eventually left Oakhampton is relevant to the issues in dispute because it bears on the question of whether it would be unconscionable for Robyn to assert her legal title to Oakhampton in the face of David's equitable claims. It has particular relevance to his claim that he contributed to a joint endeavour which came to an end "without attributable blame".
2. David's submission was that he "was ejected from Oakhampton by Robyn". It is important to note his evidence in support of this submission with some care.
3. David's evidence is that once Oriens Energy made their offer for Oakhampton in 2020, he and his mother had the conversation set out at [80] above. He says that subsequent to that conversation, Robyn travelled to Hawks Nest to inspect houses. He says she found a house she liked and advised David that she wanted to buy it. According to David, he said: "No. You cannot buy until the sale goes ahead. We cannot afford the loan on a house if this place does not sell."
4. David then says: "After that, the relationship between my mother and me soured."
5. David also says that he was unable to do "all the usual amount of work I used to do" because of the back injury he had sustained: see [35] above. He says he had fallen behind on fencing maintenance and that his mother "did not agree to" buying materials for him to complete it. He says there were issues with stock getting through the fences and that Robyn was blaming him for it.
6. Critically, he next says that on about 28 July 2022, he was at the farm when his uncle, Mr Brown (whose evidence I have already referred to) approached him and said: "You are to get off this place. Do not come back."
7. David says that he left but assumed that "whatever the problem was would resolve" so he came back a day or two later and "started mowing the lawns". He says that, on this occasion, Mr Brown again approached him and said: "Get out. You are not welcome here any more."
8. David says that he left in his car with little more than the clothes on his back and a few tools.
9. I cannot accept David's account of why he left Oakhampton and the circumstances in which he left. Entirely left out of David's account is that in April 2022, Somerton Solar terminated the option agreement, so the prospect of selling Oakhampton for $7,000,000 or more had vanished. His mother was not at that point seeking to purchase a property without having first sold Oakhampton, as David claims. I also cannot accept that there was ever any discussion of the two of them "affording" a loan on a house as his evidence suggests. There was never any prospect of them purchasing a house together.

The plaintiff's claims

1. As I have already noted, in final submissions the plaintiff addressed his claims together in an omnibus way, treating them all as "estoppel-based" claims. There was an efficiency about that approach because so much of what was in dispute was factual, not legal, but it remains appropriate to consider each asserted claim separately in the light of the foregoing factual findings.

Common intention constructive trust

1. It is convenient to deal with this claim first, as logically it arises first in time. A common intention constructive trust can arise where, at the time of the acquisition of property, there was a mutual intention of the parties that the property would be held jointly, whatever the legal title of the property, and the party lacking in legal title acts to his or her detriment on the basis of that intention, typically by contributing to the purchase price or by paying holding costs: see generally Green v Green (1989) 17 NSWLR 343; see also Pettitt v Pettitt [1970] AC 777, Gissing v Gissing [1971] AC 886 and Woods v McKinlay (No 2) [2021] NSWSC 1510 at [232].
2. Such a constructive trust is based on "the actual intention of the parties. The law does not impute a presumed intention to the parties based upon what the Court considers fair and reasonable persons in the position of the parties would have intended had they turned their minds to the issue": Shepherd v Doolan [2005] NSWSC 42 at [34].
3. Doubts have been expressed as to the survival of common intention constructive trusts as a separate species of trust claim. Parker J, in Woods v McKinlay (No 2) at [235], suggested that its distinction from a joint endeavour constructive trust was not especially watertight. Leeming JA, sitting at first instance, suggested that the common intention constructive trust may no longer survive separately from an entitlement in estoppel: see Bijkerk Investments Pty Ltd v Bikic [2020] NSWSC 1336 at [116]-[119], although his Honour declined to decide the issue and instead proceeded on the basis that, as White J (as his Honour then was) held in Michael Gregory Jones as Liquidator of SBH Australia Pty Limited (In Liq) & Anor v Joseph Cummins [2018] NSWSC 606 at [76], that: "One recognised class of case in which equity will intervene is where the parties have agreed that the claimant should have an interest in the property acquired by the other and has acted to his or her detriment on the basis of that agreement."
4. I will proceed on the basis of the principles identified by Ward CJ in Eq in Bassett v Cameron [2021] NSWSC 207, as set out in Koprivnjak v Koprivnjak [2023] NSWCA 2 at [24]: "1. equity may intervene to prevent the unconscientious denial by the legal owner of another party's rights where the parties agreed, or it was their common intention, that the claimant should have an interest in the property owned by the other, and the claimant acted to his or her detriment on the basis of that agreement or common intention; 2. it is sufficient that the parties intend that the claimant should have a beneficial interest or some form of proprietary interest (as opposed to there being a common intention that the parties have a specific share of the property); 3. a less stringent test applies to the requirement of detriment once the common intention has been established, citing Green v Green (1989) 17 NSWLR 343 at 357 per Gleeson CJ (with whom Priestley JA agreed); and 4. a common intention constructive trust may arise after the acquisition of the relevant property if the evidence establishes that the relevant common intention was formed at some later time."

Common assumption constructive trust; Constructive trust arising from reliance on an induced assumption

1. These are the second and fourth of the plaintiff's claims described at [6] above. They can fairly be described as claims based on estoppel.
2. I proceed on the basis that the particular species of estoppel in issue is a proprietary estoppel by encouragement. That is, the estoppel was said to arise from a promise concerning proprietary interests in land, and from an actual representation made by Robyn, rather than Robyn knowingly acquiescing to any assumption she knew David held (so-called "proprietary estoppel by acquiescence").
3. In Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 the plurality said at [2]: "In Giumelli v Giumelli, it was said that the category of equitable estoppel that is usually traced back to the decisions in Dillwyn v Llewelyn and Ramsden v Dyson is now a 'well recognised variety of estoppel as understood in equity', which affords relief 'found in an assumption as to the future acquisition of ownership of property ... induced by representations upon which there had been detrimental reliance by the plaintiff'".
4. Meagher JA pointed out in DHJPM Pty Ltd v Blackthorn Resources Ltd (2011) 83 NSWLR 728; [2011] NSWCA 348 at [44] that: "Because there are separate doctrines which apply to common law and equitable estoppel and because of the different characteristics which give rise to the different species of equitable estoppel, it is necessary, as the judgments in Waltons Stores v Maher, Silovi v Barbaro and Austotel v Franklins demonstrate, to attend carefully to the identification of the assumption or expectation which the object of the estoppel is said to be estopped from denying or asserting. This also directs attention to the relevant doctrine which must then be applied in a disciplined and principled way: Cobbe v Yeoman's Row Management Ltd [2008] 1 WLR 1752; 4 All ER 713 at [16], [28], [46]."
5. It is also relevant to note the distinction between proprietary estoppel by encouragement and proprietary estoppel by acquiescence, a matter which Ward P considered in Kramer v Stone (2023) 112 NSWLR 564; [2023] NSWCA 270 at [79]-[82]: "However, relevantly, for the present case, there also remains a recognised distinction between the two forms of proprietary estoppel (see Milling v Hardie [2014] NSWCA 163 (Milling v Hardie) at [50]-[52] (Macfarlan JA, with whom Beazley P agreed); Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 (Sidhu v Van Dyke) at [2], [77] (French CJ, Kiefel J, as her Honour then was, Bell and Keane JJ); Priestley v Priestley [2017] NSWCA 155 (Priestley v Priestley) at [7]-[8] (Macfarlan JA); MGL at [17-100]). The line of authority concerning proprietary estoppel by encouragement derives from Dillwyn v Llewelyn (1862) 4 De GF & J 517; 45 ER 1285 (Dillwyn v Llewelyn) and the dissenting judgment of Lord Kingsdown in Ramsden v Dyson (1866) LR 1 HL 129 at 170-171 (Ramsden v Dyson), that judgment cited approvingly by the Privy Council in Plimmer v The Mayor, Councillors and Citizens of the City of Wellington [1884] 9 AC 699 (Plimmer). Ramsden v Dyson itself is the authority from which the separate line of authority concerning proprietary estoppel by acquiescence derives. The foundation for an estoppel by encouragement, as summarised by Kitto J in Olsson v Dyson (1969) 120 CLR 365 at 378; [1969] HCA 3 (Olsson v Dyson) by reference to the decision in Dillwyn v Llewellyn, is conduct which induces a change of position for the worse in reliance thereon. In Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84 (Delaforce v Simpson-Cook), Handley AJA at [21], expressed an estoppel by encouragement as one that may arise 'when an owner of property has encouraged another to alter his or her position in the expectation of obtaining a proprietary interest and that other, in reliance on the expectation created or encouraged by the property owner, has changed his or her position to [his or her] detriment'. The equity does not arise through the mere attempt or promise to make a gift to another of a proprietary interest. As Mason CJ and Wilson J noted in Waltons Stores v Maher at 406, there needs to be 'something more' which amounts to unconscionable conduct on behalf of the representor."

Representation

1. As I have found, I am not at all persuaded that Robyn made the key representations on which David's case fundamentally relies. I have dealt with the evidence and stated my findings concerning this issue at [54]-[94] above.
2. I also found that David would not have understood anything said by his mother, whether to him or anybody else, as to ownership of either Ilfracombe or Oakhampton to be a statement that David might come to own either property during her lifetime. In saying this, I do not mean that I accept his evidence that Robyn made statements to him about him inheriting the farm or coming to own it in the future. Rather, if I am wrong to reject this part of David's evidence, and instead Robyn did tell him that he was going to "inherit the farm" or that he would "eventually" own it, David would still not have understood those statements to be statements that she did not intend ever to retire or otherwise sell the farm. He would not have understood her to be saying anything other than that he would inherit the farm in her will if she still owned it.
3. In this regard, I particularly note the evidence which David gave in cross-examination about how he understood the alleged representations in 2002 at the time his mother was selling Ilfracombe and buying Oakhampton. It was pointed out to him that he did not at that point raise any issue about the alleged representations and what it meant for his interest in either property. It was suggested to him that he did not in fact understand those representations in the way he was claiming, namely as a promise that she would not ever sell the farm. The evidence included the following: "Q. What I want to suggest to you is this, that in terms of your expectations, it was only ever one of you hoping that one day your mother would leave the property to you because you're the one who was staying at home on the property with her? A. Yes, I was doing the work to keep her. Q. What I want to suggest to you is it was only the case of you hoping that she'd leave the property to you one day because you were the one at home working with her? A. Yes."
4. I do not understand David in these passages of evidence as conceding his whole case. But he did accept that in 2002 he understood what his mother had said was as to her testamentary intentions, not as to any entitlement he might have during her lifetime. This evidence supports the conclusion, which I have reached, that David did not understand anything his mother relevantly said about him owning the farm as a promise that she would not sell either Ilfracombe or Oakhampton in her lifetime.

Assumption and inducement

1. The matters just referred to make it strictly unnecessary to consider the remaining elements of the plaintiff's estoppel case. However, I will indicate the conclusions I would reach about each of those matters.
2. So far as assumption and inducement are concerned, if I am wrong about whether Robyn made the representations and whether David understood them as promising him an interest in (as opposed to inducing a hope that he would inherit) Ilfracombe or Oakhampton, I would be inclined to accept that he did assume that he would have such an interest as a result of those representations. If Robyn really did promise him, as a 14 or 15 year old, that if he worked on the farm then it would be his and if he really did assume that that meant there would come a day when he could evict his mother from the farm, then I would accept that the assumption was induced by the representation.

Reliance

1. In Q v E Co (2021) 383 ALR 469; [2020] NSWCA 220, it was pointed out at [88] that authority requires the party relying on the estoppel to demonstrate that they would have acted differently in the absence of the relevant encouragement. Reference was made to Sidhu v Van Dyke at [66], [67] and [69]. It is therefore necessary to consider what would have happened if the representation or encouragement had not been made. A consideration of this question may also disclose whether the party relying on the estoppel has suffered any detriment by reason of their reliance: see Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 at 674-675; [1937] HCA 58.
2. In the present case, I would find that David did not rely on any representation made by his mother as to ownership of her property in the relevant sense. The evidence does not demonstrate that any of David's life decisions are explicable by his assumption that if he worked Ilfracombe and Oakhampton, then Oakhampton would be his. To the contrary, he has demonstrated fairly consistently that he regards his mother's farm as a place he can fall back on when other endeavours do not work out. He has not demonstrated that there was ever a time when he decided that he would make a serious go of farming as a life decision and that he did so in reliance on something said by his mother.
3. It is true that David has, in fact, always worked on his mother's farm, both at Ilfracombe and Oakhampton. But it is equally important to note that he has, with limited exception, always lived at home rent and board-free or at least relied on his mother as someone to fall back on, even when he had full-time work. He accepted that for so long as he lived at home, it was therefore only appropriate that he should contribute to the running of the farm, just as his brother did while living there.
4. It is also relevant to note the scale of the farming operations in this context. As I have explained, neither Ilfracombe nor Oakhampton was farmed to its full potential and neither was farmed with the vigour or application that one might expect from a commercial operation. That is not a criticism of either Robyn or David, but it is a matter that assists me in reaching a conclusion about whether David ever relied on representations in the way he contends. That is because I assume that someone who has been promised complete ownership of a farming property on the condition that they work the farm might be expected to apply themselves to working the farm in a way that David generally did not.

Detriment

1. David submits that he relied to his detriment on his mother's representations by working Ilfracombe and then Oakhampton for 30 years for no remuneration. It was argued that this meant he "suffered detriment weekly". Reference was also made to his back injury and the fact that he had "lost" his working years to Ilfracombe and Oakhampton.
2. He also points to other matters. He submits that he made financial contributions to the farms through purchasing tools and equipment.
3. The difficulty with all of these matters is that they do not necessarily grapple with the question of what his position would be if his mother had never made the alleged representations. It is true that David has contributed 30 years of labour, in varying degrees of intensity, to working on Ilfracombe and Oakhampton. But he has lived at home, rent-free and without paying for board, almost the entire time. He has also drawn unemployment benefits for nearly that whole period. He has never purchased a car and rarely paid for fuel. He has taken work off the farm when it suited him. He has never pursued a trade, despite having opportunity (and an apparent wish) to do so. When he did work, he seems not to have saved.
4. It has been recognised that matters such as the kind David points to can in an appropriate case amount to detriment in the relevant sense: Protheroe v Protheroe at [240]. However, as I have already mentioned: "There can be no real detriment if the party asserting the estoppel would have been in the same position in any event": Sidhu v Van Dyke at [92].
5. If the representations for which David contends were in fact made, then I would need to consider what would have happened if they had not been made. In that event, I would find that David's life would not have looked much different to the life he has in fact led. He would have pursued work as and when suited him (as he has done); he would otherwise have collected unemployment benefits (as he has done); he would have come and gone from his mother's home as it suited him (as he has done); he would have largely depended on his mother for board and lodging when he was not in employment (as he has done); he would have purchased the occasional tool or piece of equipment for use on the farm (as he has done); and he would have contributed to farm work for so long as he was living with his mother (as he has done).

Unconscionability

1. It follows from the conclusions I have expressed above that I do not consider it unconscionable for Robyn to assert her title to Oakhampton. If it were necessary to consider whether it would be unconscionable for her to insist on her title in circumstances where she had actually made the alleged representations, I would reach the same result because I would not consider that David had demonstrated that he had relied to his detriment on any such representations.
2. For these reasons, David's estoppel claim must fail.

Joint endeavour constructive trust

1. In Muschinski v Dodds (1985) 160 CLR 583 at 620; [1985] HCA 78, Deane J explained that: "…the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do."
2. Deane J also noted at 622 of Muschinski v Dodds that "there commonly lies a need to take account of a practical equation between direct contributions in money or labour and indirect contributions in other forms such as support, home-making and family care."
3. The reasoning of Deane J on this issue was approved by all members of the High Court in Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59. At 148, Mason CJ, Wilson and Deane JJ described the principled basis for actions based on a failed joint endeavour as being: "the general equitable principle which restores to a party contributions which he or she has made to a joint endeavour which fails when the contributions have been made in circumstances in which it was not intended that the other party should enjoy them."
4. The particular elements that must be established to support such a claim were identified by Parker J in Woods v McKinlay (No 2) at [231] as follows: "(1) the formation of a joint endeavour between the parties; (2) the acquisition of property pursuant to that joint endeavour; and (3) the premature termination of the joint endeavour, leaving one part [sic] with a legal interest which that party was not intended to enjoy beneficially in those circumstances".
5. This was approved by the Court of Appeal in McKinlay v Woods [2024] NSWCA 122 at [84].
6. Parker J's formulation as set out in [203] above was also adopted by the Court of Appeal in NSW Trustee and Guardian v Togias (2022) 110 NSWLR 86; [2022] NSWCA 225 ("Togias") at [62]. It was also noted in Togias that there was a lack of clarity as to when and why particular circumstances will give rise to proprietary, rather than personal rights, and that this "absence of clarity is more acute where, as here, the contributions relied on for the existence of a constructive trust are indirect and primarily of a non-financial character": at [61]. In that respect, the Court adopted the view of Campbell J in West v Mead [2003] NSWSC 161; (2003) 13 BPR 24,431, where his Honour stated, at [58], that, in order for a constructive trust to arise, "one needs to have a joint relationship or endeavour, and an asset acquired in the course of, and for the purposes of, that joint relationship or endeavour." His Honour continued, at [59], to say that a plaintiff needs to establish: "…that there is indeed a joint endeavour between the parties, in which expenditure is shared for the common benefit. It is also necessary to identify what the scope of that joint endeavour is. It is a question of fact, for any couple, what the scope of the joint endeavour they are engaging in is. Further, for any couple, the scope of the joint endeavour they are engaged in might change from time to time. If, within the scope of a joint endeavour which lasts for years, an asset is acquired, as a result of contributions both parties have made, and for a purpose of the ongoing joint endeavour of the parties, this gives rise to the presumption that the beneficial interest ought to be shared equally. That presumption can be displaced if one party is able to show that the contributions, both financial and non-financial, to that asset should be regarded as unequal. In practical terms, this way of proceeding will place the onus of attributing a value to non-financial contributions on the person who asserts that the title should be held unequally."

Other matters

1. It is appropriate to note one other substantive issue that was the subject of evidence and argument.
2. Until final submissions, David pressed a case in detinue for the return of a large amount of farming tools and equipment and various domestic items which, he said, he had purchased over the years and which were still located at Oakhampton. In final submissions, his counsel informed the Court that those claims were not pressed but that David's evidence as to having purchased those tools and equipment remained relevant to take into account when determining his other claims. That is, they represented part of his contribution to the joint endeavour and they also represented some detriment for the purposes of his estoppel claims.
3. It is unnecessary to determine the detinue claim. However, I accept that David did often purchase tools and, occasionally, farming equipment for use on Oakhampton. However, that circumstance does not alter my conclusion that their joint endeavour was one that did not involve the purchase of Ilfracombe or Oakhampton. The items in question were generally small and often second-hand. The fact that he purchased them shows that he was engaged in the limited joint endeavour which I have described. His purchase of these items does not demonstrate that the joint venture was of the grand scale for which he contends, namely one whereby they were both working to acquire Ilfracombe and, later, Oakhampton for their mutual benefit.

Conclusions and orders

1. It follows that the amended statement of claim will be dismissed. In the ordinary course, I would order the plaintiff to pay the defendant's costs, however I have not yet heard from the parties on this issue so I will order them to make short written submissions on the point.
2. The orders of the Court will therefore be: 1. The amended statement of claim is dismissed; 2. The defendant is to file and serve submissions of no more than five pages as to costs on or before 12 September 2024; and 3. The plaintiff is to file and serve submissions of no more than five pages as to costs on or before 26 September 2024.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 August 2024