Hardie v Milling

THE CURRENT DISPUTE 16The first plaintiff (David Hardie) is the son-in-law, and the second plaintiff (Tracey Hardie, nee Milling) is the daughter, of the defendant (Ken Milling). 17So far as is material, the Milling Family comprises the defendant, Mr Milling, his wife (Quona), their three adult children and their grandchildren by the plaintiffs. Mr and Mrs Milling Senior were married in about 1960. Their first child, James, was born in 1965. Their second child, the second plaintiff, Tracey, was born in 1966. Their third child, Duncan, was born in 1971. 18The plaintiffs were married in 1990. They have three children. The eldest, a girl, was born in February 1993. The second child, another daughter, was born in December 1996. The third child, a boy, was born in 1998. 19The Millings are a farming family with antecedents extending beyond the generations currently in conflict. Weeraman, in particular, was owned by the defendant's parents before it was owned by him. 20On the whole, the defendant has been a successful farmer. Of the properties he has owned over the years, it is necessary to mention only three. Weeraman is the centre of attention; in total, it comprises about 750 acres. Literally across the road from Weeraman is a larger property owned by the defendant's family company, Dhu-Robin Pty Limited; that property, also known as "Dhu-Robin", comprises approximately 4000 acres. A third property, known as "Kensington", is located approximately 30 kilometres away near Cassilis; its approximately 2,500 acres are owned by Dhu-Robin Pty Limited. 21It is not necessary to delve into the legal structure of the defendant's business interests (which involve at least one family company and a hint of family trusts) beyond noting that the defendant personally, and the defendant alone, is the registered proprietor of Weeraman. It is subject to mortgages for bank debts of the defendant and Dhu-Robin Pty Limited, and caveats lodged on the title by the plaintiffs in 2010. 22The name "Weeraman" is used by the Milling Family with different meanings in different contexts. 23Sometimes they use the name to signify the whole property, Lots 20, 110 and 118. 24Lot 20, which is not contiguous with Lots 110 and 118, is generally known as "the Top Block". Lots 110 and 118, which are contiguous, are generally known as "the House Paddock". They are sometimes referred to as "Weeraman", without inclusion of Lot 20. 25At other times, "Weeraman" has been used to refer simply to the residence (the homestead), and the surrounding living area, located on "the House Paddock" on, or in the vicinity of, the boundary between Lots 110 and 118. 26The informality attaching to the family's use of the name "Weeraman" is accompanied by another layer of informality. Participants in family communications appear, generally, to have shared common assumptions about what parts of what properties are referred to in conversations which, in terms, do not appear, to an outsider at least, readily to identify particular parts of the farm. 27Generally, irrespective of the identity of the legal ownership of particular land, the defendant has conducted a family operation (in former times nominally with his wife and, in comparatively recent times, actively with his son Jamie) extending over all the rural properties available to the Milling Family. 28Shortly after their marriage the plaintiffs, at the invitation of the defendant, lived for a time on "Kensington". Shortly before the birth of their first child, they moved to the Weeraman homestead, at the invitation of the defendant, to be nearer to Mr and Mrs Milling Senior. The Weeraman homestead is comparatively close to the Dhu-Robin homestead, approximately five kilometres up the road that separates the two properties. 29While living in the Weeraman homestead, the plaintiffs have raised their three children and, with the consent of the defendant, effected improvements to the House Paddock, in the vicinity of the homestead. 30Some of those improvements have been of a nature intended primarily to be enjoyed by the plaintiffs and their children in residence. Others have been of a more capital nature, likely to benefit any occupier or user of the property. Valuation evidence, adduced from a joint expert, confirms that fact. 31In a rough chronological order, the improvements effected to the House Paddock by the plaintiffs comprise: the laying out of an extensive garden by the second plaintiff and her mother (1992); the construction of a new shed ("the House Shed") in 1994; the installation of a water tank, providing a domestic water supply in about 1995; the installation of a cattle grid, coupled with a gate, at about the same time; extensions to the Weeraman homestead that doubled its size, in about 1997; an unsuccessful attempt to drill a new bore, on the site of an old bore, for the provision of a general water supply in 1997; the construction of a swimming pool in 1998; the construction of a machinery shed in 1999; extension of the garden, with a piped water supply system, in and following the year 2000; the successful sinking of a new bore in 2002; the installation of a tennis court, and a cricket practice net, in 2003; and sundry other improvements (including air conditioning in the homestead and shade sails over the pool) in subsequent years up to about 2006. 32The second plaintiff's garden is not to be dismissed as insignificant, or less significant than other improvements on Weeraman. It matches that of her mother on Dhu-Robin. Both are show-quality gardens. Establishment and extension of the second plaintiff's garden was, as the defendant must have known, a significant expression of the plaintiff's expectations of permanency. 33The second plaintiff says, and her father does not really dispute, that she took up her father's invitation to move to the Weeraman homestead, and to remain there during the formative years of her own family, in the belief that her father had encouraged, and continued to encourage, her to make a "house" into a "home". 34In the course of giving his evidence the first plaintiff articulated his expectation of benefit to himself and his family in terms of assurances by the defendant that "Weeraman" would, in due course, be transferred or left to the second plaintiff rather than to himself. He is not a primary claimant to a beneficial interest in "Weeraman". Any claim he asserts in these proceedings must be viewed as supportive of, and ancillary to, that of the second plaintiff. His expenditure of money, time and effort in effecting improvements on the Weeraman House Paddock was in aid of his wife's inheritance. His expectations of benefit are derivative, through her birthright 35In the course of giving their evidence both the second plaintiff and the defendant acknowledged, albeit from different perspectives, a common understanding that the second plaintiff and her family would never, willingly, be evicted from the Weeraman homestead by the defendant at any time during his lifetime. 36They have adhered to that common understanding despite the fact that their personal relationship, since a blow-up in 2010, has been so poor that members of the Weeraman household and members of the Dhu-Robin household have not been on speaking terms, and there has been no association between the plaintiffs' children and their grandparents. 37The defendant's legal team have, as might be expected of lawyers, qualified the clarity of their client's expressed understanding of the durability of his daughter's right of occupancy by pointing to the possibility that he might need, or be forced, to terminate that right of occupancy as a consequence of a deterioration in his economic position. 38I do not detect in the defendant, personally, any apprehension that his financial exigencies will force his daughter or her family off Weeraman before his death. 39Nevertheless, there is a limit on the comfort that can be taken by the plaintiffs from statements of benign intention on the part of the defendant. Albeit through his lawyers, and qualified by a prospective appeal to economic necessity, he reserves a right to evict the plaintiff at will. He maintains his claim to sovereignty over Weeraman. The rights he reserves to deal with Weeraman, in life and on death, are a denial of the plaintiff's claimed entitlement to security. 40A risk of the plaintiffs being evicted from Weeraman in the aftermath of these proceedings cannot be excluded. Since 1994 the defendant's farming, and other commercial, operations have increased the level of indebtedness charged on the Milling Family's land, including Weeraman. In all its manifestations, Weeraman is a subject of registered mortgages which, prima facie, might be expected to have priority over any equitable entitlements the plaintiffs might have in the property. 41The plaintiffs say that they effected improvements to the Weeraman House Paddock, commencing with the new shed in 1994, in reliance upon representations made by the defendant (from a time shortly before that shed was erected) to the effect that they could do what they liked on the property, provided that it cost the defendant nothing, because the defendant was "only going to be here (Weeraman) for another five years and after that [he would] be gone." They say that he repeated his promise of impending retirement, and conferral of title on the second plaintiff, in a conversation between himself and the first plaintiff in about 1999. 42The plaintiffs contend that the defendant intended them to believe that, within that timeframe of five years (which, they say, he subsequently extended from time to time until everything came to a head in 2010), he intended to transfer to the second plaintiff ownership of the whole of Weeraman (that is, Lots 20, 110 and 118). 43The defendant does not dispute that, from time to time he consented to particular improvements being effected to the House Paddock, as requested by the plaintiffs on a case-by-case basis, on the understanding that none of the costs of effecting improvements would be borne by him. 44However, he strenuously denies that he ever made any representation to the plaintiffs to the effect that he intended to retire from active involvement in farming operations or to give over to the plaintiffs the title to land, within a particular timeframe or (during his lifetime) at all. 45The defendant was born in 1936. In 1994 he was aged about 58. Within the five years or so following 1994 he, for a time, separated from his wife during a rocky period in their marriage. However he ultimately returned to the family home, and his commitment to the life of a farmer has never wavered - until, perhaps, age compelled him in recent years to slow down, and to hand over the reins to Jamie. 46For their part, the plaintiffs, with a conviction that equals that of the defendant, adhere to their evidence about the representations, understood by them as tantamount to promises, they attribute to the defendant. They appear to have persuaded themselves, but not at any time the defendant, that he had promised to transfer land to them in advance of his death. 47A resolution of the factual dispute between the parties, as to who said what and when about a "five year plan" must accommodate the fact, acknowledged by the defendant himself, that he is a man of few words. 48The evidence of his daughter, in particular, is that, because the defendant has always been given to making large statements in few words, she interpreted his oblique statements in 1994 and 1999 about his future intentions as a promise that "Weeraman" would be transferred to her, inter vivos, for the benefit of her growing family. 49The oblique character of the words attributed to the defendant invites consideration of the possibility of a classic miscommunication between the parties. The defendant "knew" what he intended to say, and not to say. The plaintiffs "knew" what they heard him say. What was, in fact, said on the one side and heard on the other side may have left an objective observer with doubts about whether the speaker and his audience were present on the same occasion. Each party's evidence, truthfully given, has been coloured, I am certain, by unrecognised perceptions of self interest. 50I proceed on the basis that the defendant may have said something like the words attributed to him in 1994, without reference to any words that could justify the plaintiffs' self-interested assumption that he had a "five year plan" for retirement, and without any objective significance other than that of a casual remark about the vicissitudes of life for a hard working man approaching his sixties. 51If and to the extent there was any subsequent discussion between the plaintiffs and the defendant along similar lines - which the plaintiffs suggest did in fact occur in about 1999 - I proceed on the basis that the parties' capacity for miscommunication remained intact. 52I do not accept that the defendant, ever, represented to the plaintiffs that he had an intention to retire, that he had a "five year plan" or the like as he moved towards retirement age, or that he intended to transfer land to the plaintiffs during his lifetime. 53The primary significance of the evidence given by the plaintiffs to the contrary of my findings is its probative value as evidence of the plaintiffs' state of belief. Rightly or wrongly, they believed that they had received from the defendant an assurance, which he subsequently confirmed, that "Weeraman" would be transferred to the second plaintiff within the foreseeable future. Nothing which the defendant, in fact, expressly said, could, of itself, justify such a state of mind. 54That is not, however, the end of the matter. What he said, and the way he said it (about his grant of permission to undertake improvements provided there was no cost to him), was sufficient, in its context, to excite in the plaintiffs a reasonable expectation that the second plaintiff would in due course inherit from the defendant at least the Weeraman House Paddock. By his invitation to the plaintiffs to live in the Weeraman homestead, and by his express acquiescence in development of both cottage and curtilage, as a means of providing a secure home for the second plaintiff, her husband and the three children of their marriage, the defendant encouraged the plaintiffs both to remain at "Weeraman", and to improve it, on the reasonable understanding, an assumption on their part: first, that the Weeraman House Paddock would be left to the second plaintiff in the defendant's will; and, secondly, that, in the meantime, she and her family could reside there with a secure right of occupancy. 55But for that encouragement, they would not have spent their money, time and effort effecting improvements to the House Paddock, and they would not have remained on Weeraman for as long as they have. They would have moved to another location well before now. The first plaintiff's plans for development of his business as a contractor - which the defendant accommodated on the Weeraman House Paddock - would have inevitably drawn the plaintiffs away from Weeraman, if not compelled them, literally, to move on to other pastures. 56Whether or not (as the plaintiffs believe) their occupancy of the Weeraman House Paddock was consciously contemplated by the defendant as conferral upon them of the role of "caretakers" of that part of Weeraman, it was convenient to the defendant to have them on site and, commensurably, a burden on them. Without an assurance of future title to Weeraman, or at least to the House Paddock, they would have relieved themselves of that burden, and their frustrated ambitions, by moving off the property. 57It is not without significance that: first, the defendant himself accepts that he has, at all material times, intended the plaintiffs to feel secure in the residence on his land that has become their home and that, despite a fracture in the family, he adheres to that intention at least; and, secondly, the defendant himself accepts that, until the parties fell out in 2010, it was his intention to leave to the second plaintiff, in his will, at least the Weeraman House Paddock (comprising Lots 110 and 118). 58The evidence does not permit a finding that the defendant ever encouraged the plaintiffs to believe, or that it was reasonable for the plaintiffs to believe: (a) that Lot 20 would find its way into the ownership of the second plaintiff, either by an inter vivos transfer or by a testamentary disposition; or (b) that any rights of occupancy that the second plaintiff, or the plaintiffs jointly or severally, might have would extend to the conduct of farming operations (whether by way of running stock or engaging in cropping activities) on any part of Weeraman. 59A point of friction between the plaintiffs and the defendant, over many years before 2010, was that the first plaintiff wanted to sow crops on Weeraman, and his periodic requests to the defendant for permission to do that were consistently denied. 60The fact that the first plaintiff made such requests, and the fact that such requests were denied, demonstrate the defendant's exercise of sovereignty over farming operations on Weeraman, and the plaintiffs' acknowledgement of that sovereignty. 61The defendant is perceptive enough, himself, to have noticed the plaintiffs' ambitions over Weeraman farming land. To the extent he may have overlooked them, complaints from Jamie brought them to his attention. Jamie had a justified apprehension that the first plaintiff was out to build an empire on his father-in-law's land. In a voice louder than a whisper, he warned his father of this more than once, much to the annoyance of the first plaintiff. 62The defendant could not but have been on notice that his encouragement of the plaintiffs to make their home on Weeraman had been, and was continuing to be, taken by them as an assurance of ongoing security of residence and, in due course, title to their home environs. 63It is true that, before the outbreak of civil war within the family in 2010, the first plaintiff, from time to time, provided services to the farming operations of the defendant (including services provided on Weeraman) but, as a general proposition, it is equally true he did so for reward in the ordinary course of his business as a farming contractor. 64Things got out of hand in 2010 when the first plaintiff, requested by the defendant to sow a crop in three paddocks on Weeraman on the account of the defendant, unilaterally and without warning to the defendant sowed an extra two paddocks. In reporting to the defendant, after the event, he sought to justify his insubordination on the basis that he had sown the two additional paddocks to provide funds for the plaintiffs to meet their childrens' school fees. That was disingenuous. More was at stake than school fees. The first plaintiff sought to lay a claim of present entitlement to farm Weeraman land. The defendant, understandably, took umbrage. 65The plaintiffs, in their turn, took offence at the defendant's rebuff. They took legal advice about their rights and, having taken that advice, they lodged a caveat against the title to Weeraman (Lots 20, 110 and 118): Caveat AF514895. It was verified, not inappropriately, on "Empire Day" (24 May) 2010. 66That move was matched on the defendant's side by a decision to make a new will (dated 7 June 2010) cutting the plaintiffs and their children out entirely, and providing for the defendant's sons (Duncan and Jaimie) to inherit Lots 110 and 118. 67The decision of the defendant to disinherit the second plaintiff was a decisive repudiation of the assumption that he had until then encouraged the plaintiffs to make, that the defendant would transfer land to the second plaintiff in due course, and that the plaintiffs and their children would, in the meantime, enjoy security in their occupancy of the Weeraman homestead and surrounds. As these proceedings have demonstrated, he may never have had a present intention to evict the plaintiffs from Weeraman, but he has at all material times reserved a right to do so at will. 68If the Court were to dismiss the plaintiffs' claims for relief in these proceedings, there would remain a risk - which could emerge in the form of any supposed necessity - that the plaintiffs could hereafter be evicted and, as the second plaintiff has been prospectively, emphatically disinherited. That risk is, to the plaintiffs, a threat. It is a real threat, neither imagined nor remote. 69The defendant has always treated the second plaintiff with a generosity marked by indulgence, but the plaintiffs have pushed him further than he wants to go. A perceived necessity to assert control over the farm could, in his mind, justify him in going back on any assurances, by word or conduct, earlier given to the plaintiffs about their relationship with Weeraman. 70The defendant is now 77 years of age, or thereabouts. Rightly or wrongly, his sons (prospectively, executors of his deceased estate and beneficiaries of Lots 110 and 118) are at loggerheads with the second plaintiff and her family. The defendant is proceeding upon the basis that he can and will, by death at least, deprive the second plaintiff of the security he has spent the last 20 years encouraging her and her family to believe was theirs on the Weeraman property. 71No evidence was adduced, on either side of the record in these proceedings, from Duncan; but Duncan did accompany his parents to Court throughout the hearing and, even if he remains well disposed towards the plaintiffs, the undisguised animosity between Jamie and the first plaintiff would be sufficient, in light of the defendant's current will, to disturb the plaintiffs' quiet possession of the Weeraman homestead if not (as the defendant intends) their ouster from the property. 72The evidence establishes to my satisfaction the elements of an estoppel operating against the defendant, requiring him to adhere to the assumption of the plaintiffs (referred to in paragraph 54 above) that the Weeraman House Paddock would pass to the second plaintiff on the death of the defendant and that she and her family would be able to reside there, with security of occupancy, in the meantime: Delaforce v Simpson-Cook (2010) 78 NSWLR 483 at 491 [41]-[44]. 73The defendant's repudiation of that assumption - expectation - of entitlement on the part of the plaintiffs since the breakdown of his relationship with them in 2010 warrants equitable intervention to protect them against unconscientious conduct, on his part, evidenced by that repudiation and his ongoing threat to give effect to it. The plaintiffs have devoted themselves, their money and labour to life and improvements on Weeraman, and they have foregone life elsewhere. The defendant cannot, in good conscience, deny them the security of tenure and title he has, to their detriment, encouraged them, over many years, to expect. 74Prima facie, the Court should enforce the reasonable expectations which the defendant has encouraged in the plaintiffs: Delaforce v Simpson-Cook at 78 NSWLR 492 [55] - 497 [93], esp at 494 [63] and 497 [92]. 75It will be necessary for the Court to mould any relief to be granted to the plaintiffs to allow for ongoing farming operations by the defendant on the Weeraman House Paddock. However, subject to that necessity, the relief to be granted to the plaintiffs should give effect, by way of a constructive trust, to the reasonable expectations encouraged in them by the defendant: Giumelli v Giumelli (1999) 196 CLR 101 at 111-113, especially at [5]-[6] and [10]; Delaforce v Simpson-Cook (2010) 78 NSWLR 483 at 485 [3] and 493 [57] et seq. There are no counter-veiling equities or hardship considerations standing in the way of such relief. 76I have given consideration to the possibility that, in all the circumstances, the appropriate form of relief would be one limited to an order for equitable compensation, with a charge against Weeraman. The quantum of an award of compensation could be fixed by reference, inter alia, to an assessment of the value of the Weeraman House Paddock or capital improvements on it. 77The parties tendered in evidence the valuation report of a joint expert (Exhibit P2), with valuations as at 19 January 2012, from which objective estimates of value (albeit more than a year out of date) could be made. In reading that report, allowance would have to be made for the fact that the expert's valuation of "Weeraman", as distinct from improvements, includes Lot 20 as well as Lots 110 and 118. Nevertheless, there is an evidentiary foundation available for an assessment of compensation. 78There are several reasons for not embracing compensation as a remedy. First, the plaintiffs and their children continue to regard "Weeraman" as their home and, subject to his very important reservation of rights to bring their occupancy of Weeraman to an end at a time of his choosing, the defendant appears content to allow them to remain in occupation of the House Paddock for an indefinite time. Secondly, an award of compensation could probably only effectively be made upon a determination of the plaintiffs' occupancy of the Weeraman House Paddock, which has not yet occurred and which may not, in fact, occur any time soon. Thirdly, no award of monetary compensation would be likely, fully, to compensate the plaintiffs (or, more particularly, the second plaintiff) for displaced expectations, or to compensate them as well as orders designed to deliver on those expectations. Fourthly, an award of compensation could impose a disproportionate financial burden on the defendant by requiring him, peremptorily, to rearrange his affairs in order to satisfy the award. 79I put to one side, but notice, the possibility that, once these proceedings have determined the nature and scope of the plaintiffs' disputed entitlements, there remains a possibility of reconciliation within the Milling Family. Stranger things have happened. Hope springs eternal. The fact that, despite the inevitable tensions of contested litigation, family members have been able to continue living in close proximity with one another is worthy at least of passing notice.

ORDERS TO BE MADE 80The parties have asked for an opportunity to consider their position generally, upon publication of these reasons for judgment, before any final orders are made. 81I am content to allow them that opportunity. There remains a prospect, I suppose, that the Milling Family may come to an agreement about succession plans that transcends the possible in these proceedings. 82This judgment cannot anticipate what, if any, entitlements the plaintiffs or other members of the Family might have on an application for family provision relief under Part 3 of the Succession Act 2006 NSW on the deaths of Mr and Mrs Milling Snr, to take the most obvious example of life's ever present, contingent certainties. 83The scope of this judgment is confined to dealing with a claim in estoppel. The defendant is, however, on notice that, rightly or wrongly, his daughter continues to have hopes, and designs, towards acquisition of the Top Block (Lot 20) on his death. I refrain from comment on her prospects in that connection. On my findings, her claim to Lot 20 cannot be allowed, in these proceedings, over opposition from the defendant. 84Sufficient for the day to record that, subject to such (if any) submissions that might be made following publication of this judgment, the relief to which the plaintiffs presently appear to be entitled, and correlative orders to which they must submit, is of the character of the following draft orders (which I foreshadow but do not now make): "1. ORDER that the order made by Associate Justice Hallen on 8 March 2012 approving a release of rights under Part 3 of the Succession Act 2006 NSW be set aside. 2. DECLARE that the Defendant holds the property known as "The House Paddock, Weeraman", near Leadville in the State of New South Wales (being Lots 110 and 118 in Deposited Plan 750766 and being the whole of the land comprised in Auto Consol 15114-40) on trust for himself and his daughter, the Second Plaintiff, on the following terms: (a) During the lifetime of the Defendant: (i) the Second Plaintiff (by herself and her invitees) has, free of any liability for payment of a licence fee or for any rates, taxes or outgoings - other than charges for telephone services to which she may subscribe - charged on the property, an irrevocable, non-exclusive licence to occupy (and, at her discretion and at her own cost, improve) as a residence for herself and her immediate family, and for incidental purposes, that area of the property circumscribed by a notional boundary line enclosing the homestead, the water tank, the house shed, the machinery shed, the swimming pool, the tennis court, the cricket practice net, the gardens and the bore presently erected as improvements on the property, together with access to, from and in the vicinity of that area as may be reasonably required to permit the Second Plaintiff to enjoy quiet possession of the defined area. (ii) subject to the Second Plaintiff's entitlement to occupy the property pursuant to the licence referred to in (i), and on the basis that he is bound to pay or bear liability for any and all rates, taxes or other outgoings (including moneys secured by mortgage) charged or chargeable on, or referable to, the property other than any charges for telephone services provided to the Second Plaintiff or her invitees, the Defendant is entitled to enjoy quiet possession of the whole of the property and the rents and profit thereof. (b) On and from the death of the Defendant, the Second Plaintiff is entitled, for her own absolute use and benefit, to possess and enjoy the whole of the property (ie, Lots 110 and 118), and to have legal title to the whole of the property (Lots 110 and 118) vested in her free of any encumbrance now or in the future charged against the property by or on the account of the Defendant and Dhu-Robin Pty Limited jointly and severally, subject only to: (i) a reservation in favour of the Estate of the Defendant of an entitlement to harvest and to remove any crops standing on the property, and any stock, equipment or other chattels owned by the Defendant located on the property at the time of death of the Defendant; and (ii) an obligation on the part of the Second Plaintiff to grant to the registered proprietor for the time being of Lot ... (being part of the property known as "Dhu-Robin") and Lot 20 in Deposited Plan 750768 (known as "Top Block, Weeraman") an easement to draw water from the bore presently erected on "the House Paddock, Weeraman". 3. ORDER, subject to further order, that the Defendant by himself, his servants and agents be restrained from interfering with the second plaintiff's quiet enjoyment of the right of occupancy identified in paragraph (a)(i) of the aforesaid declaration. 4. DECLARE that the plaintiffs have no right, title or interest in Lot 20 in Deposited Plan 750766. 5. DECLARE that the first plaintiff has no right, title or interest in Lots 110 and 118 in Deposited Plan 750766. 6. ORDER that the plaintiffs withdraw caveat AF514895: (a) from the title of Lot 20 in Deposited Plan 750766; and (b) so far as it asserts any claim by the first plaintiff to a beneficial entitlement, from the title of Lots 110 and 118 in Deposited Plan 570766." 85If otherwise appropriate to the occasion, these draft orders require closer consideration in at least two respects. First, there needs to be identification (in draft order 2(b)(ii)) of a title reference relating to the property known as "Dhu-Robin". Secondly, consideration needs to be given to the form of draft order 6, having regard to provisions of the Real Property Act 1900 NSW governing caveats, their amendment and withdrawal (including ss 36, 74L, 74M, 74MA, 74O, 74Q and 74R) and the practice of the Registrar General. 86No question of costs has yet been argued. I reserve that question, as well as the larger question of the form of substantive orders to be made in disposition of the proceedings.

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: 11 April 2013