3 This is an appeal by Christopher Barton Harrison ('Christopher'),[1] the son of the late Kenneth Humphrey Harrison ('Kenneth') and Joyce Jillian Harrison ('Jillian'), against orders made on 6 March 2012 in favour of the respondents Louise Helen Harrison ('Louise'), Sue Elizabeth Harrison ('Sue') and Kathryn Jean Harrison ('Kathryn'). Louise, Sue and Kathryn are daughters of Kenneth and Jillian, and brought a claim against Christopher based on proprietary estoppel concerning a farming property known as 'Hopefield' at Pyramid Hill in Northern Victoria.

4 Kenneth died on 17 April 2003. By his will dated 3 December 1998, he appointed Christopher as the executor and trustee of his estate. He devised to Christopher all of his interest in Hopefield, which interest was for probate purposes valued at $3,250,000, and the balance of his estate, valued at $101,000 for probate purposes, to Jillian. On 21 May 2004, Christopher was granted probate of Kenneth's will. Final distribution of the estate took place on 29 July 2008, when Kenneth's interest in the farming land was transferred to Christopher.

5 The Hopefield farm has been in the Harrison family for more than 130 years. It comprises 42 parcels of land, amounting in total to some 15,000 acres. Kenneth had three brothers, Noel, Clifford and John Harrison, each of whom survived Kenneth.

Two of the 42 parcels of land were held by John Harrison in his own name, and four parcels were held by Clifford Harrison. The remaining 36 parcels of land were held, in various combinations of co-ownership, by Kenneth and his brothers, as tenants in common. Despite this combination of ownership, I shall for convenience refer to Kenneth's interest in the property as 'Hopefield', and to the property as a whole as 'the Hopefield farm'.

6 Kenneth and his three brothers also owned, as tenants in common, a substantial quantity of water shares used to irrigate the farm. As a result of legislative changes in 2006, water rights were 'unbundled'. Under Kenneth's will, Christopher became the owner of 1,564.1 megalitres of high reliability water rights.

7 Louise, Sue and Kathryn claimed that after Kenneth's death in April 2003, Christopher promised and undertook to them that he would ensure that provision was made for them from Kenneth's estate. They claimed that they relied on his promises and undertakings, and as a result, refrained from making any application for provision under Part IV of the Administration and Probate Act 1958 (Vic) ('the Act').

8 The major issue in the trial over 19 days was whether Christopher made various promises to Louise, Sue and Kathryn between the date of Kenneth's death on 17 April 2003 and 25 October 2009. The trial judge divided that period into three parts: first, the period from the date of Kenneth's death in April 2003 until September 2005, when Louise sent an email to Christopher dated 13 September 2005; secondly, the period from September 2005 until the death of Louise's late husband Michael Skirka in April 2007; and thirdly, the period from April 2007 until 25 October 2009.

9 The trial judge was not satisfied that Christopher made any of the promises alleged by the respondents in the first period to September 2005, or in the second period to April 2007. He was satisfied on the facts that during the third period from April 2007 until 25 October 2009, Christopher made three representations to the respondents:[2]

(a) In April 2007, he told the plaintiffs, and Paul Somerville [the husband of Kathryn], that he would provide, from his father's estate, for Louise and her children, and that he would also make financial provision for the plaintiffs and their children, by setting up a trust.

(b) In January 2008, Christopher repeated to Susan his statement that he would set up a trust, from his father's estate, to support all the family members.

(c) Subsequently, during 2008 Christopher confirmed to Sue that he would abide by those promises.

10 The trial judge also found that when Christopher spoke to Sue on various occasions at the beginning of 2008 and during 2008 he knew that Sue would report the substance of the conversations to the other respondents.[3]

11 Each of the trial judge's conclusions as to the representations and promises made by Christopher was supported by a summary of the relevant evidence of each witness and comprehensive findings of fact.

12 By orders made on 6 March 2012 ('the orders'),[4] the trial judge declared that Christopher held on constructive trust for Louise, Sue and Kathryn, 15 per cent, 10 per cent and 5 per cent interests respectively as tenants in common with Christopher, as to 70 per cent, in Hopefield subject to the mortgages and encumbrances noted thereon. The trial judge ordered Christopher to do all things and execute all such documents as necessary to transfer the 15 per cent, 10 per cent and 5 per cent interests to Louise, Sue and Kathryn respectively as tenants in common with him as to 70 per cent of Hopefield subject to the mortgages and encumbrances noted thereon.

13 The trial judge also declared that Christopher held on constructive trust for Louise, Sue and Kathryn interests in the same percentages of 15 per cent, 10 per cent and 5 per cent respectively as tenants in common with him as to 70 per cent in the high and low reliability water shares recorded in the Victorian Water Register as owned by him. By the orders, Christopher was directed to do all such things and execute all such documents as necessary to transfer to Louise, Sue and Kathryn 15 per cent, 10 per cent and 5 per cent respectively of the total number of high and low reliability water shares recorded in the Victorian Water Register as owned by Christopher and of any future water allocation. Christopher was ordered to execute all documents and do all things necessary to provide a fresh mortgage to the National Australia Bank Ltd over the remaining 70 per cent of the high and low reliability water shares recorded in the Victorian Water Register.

14 The trial judge ordered the respondents to indemnify and adjust with Christopher any sum paid by him or claimed from him after the date of the transfer by any Shire or water authority in relation to any charges or outgoings incurred after the date of the transfers in respect of the land transferred to them or any of them, or from any water or other authority in relation to the water shares transferred to them or any of them.

15 By a notice of appeal dated 20 March 2012, Christopher appealed against the decision of the trial judge save as to the order as to costs. There are 30 grounds of appeal relied on by Christopher following the abandonment of ground 10.

16 The principal issues raised for adjudication in the appeal concerning the findings of the trial judge were whether they were contrary to the evidence or the weight of the evidence, and whether the trial judge failed to give any or any sufficient weight to parts of the evidence. Most of the grounds of appeal concern findings of fact.

17 The issues raised in the appeal were categorised by counsel for Christopher as:[5]

1. Whether the finding that Christopher made three representations should have been made
2. Whether Christopher knew, understood or intended Paul Somerville the husband of [Kathryn] and [Sue] his sister to be conduits of promises or representations made by him

1. Whether any expectation on the part of the [respondents] was engendered by the promises or statements, and if yes, what was it

1. Whether in April 2007, January 2008 and subsequently in 2008 Christopher knew that that the [respondents] were contemplating bringing proceedings in respect of their father's Will
2. Whether the [respondents] relied upon the three representations as promises in April 2007, in January 2008, and subsequently during 2008 in deciding not to institute legal proceedings in respect of their father's estate until after 29 July 2008
3. Whether the [respondents] suffered detriment as a consequence of the failure of Christopher to adhere to his promises
4. The relevance of Part IV of the Act
5. Whether Christopher on 25 October 2009 resiled from the promises and in this regard whether the promises were subject to a condition that equity did not require performance before the date when Hopefield farm was sold or divided
6. Whether the promises, and the expectations engendered by them, were of a proprietary nature, which brought this case within the principles of the doctrine of proprietary estoppel
7. The relief to be granted; the measure of equity requisite to address and vindicate the alleged unconscionable departure
8. The evidence of the witnesses; general matters

18 The issue described in category A was further divided in the submissions into the three classes of representations found by the trial judge to have been made:[6]

A(1) The representations found to be made in Hobart in April 2007.

A(2) The alleged representations made to Sue in January 2008 at 214 Sullivans Road, Strathfieldsaye.

A(3) Subsequently, during 2008, [Christopher] confirmed to [Sue] that he would abide by those promises.

19 It is convenient to address the grounds of appeal and the arguments advanced on behalf of the appellant under the categories or subcategories adopted by Christopher in the submissions.[7] I will also refer to the grounds of appeal listed in the submissions, and sought to be pressed under each category or subcategory.

20 At the hearing of the appeal, Mr Higgs SC appeared with Mr Shepherd for Christopher, and sought leave to rely on a new argument described in a further outline submission as the 'Loss of Chance Submission'.[8] The respondents did not object to the amendment of the particulars of grounds 11-12, 14-17 and 28 inclusive of the grounds set out in the notice of appeal so as to embody particulars relating to this submission, and the notice of appeal was amended accordingly.

Whether representations or promises were made and what were they

(1) The representations found to be made in Hobart in April 2007.

Grounds of Appeal 1, 2, 22, 23, 25, 29 and 30.[9]

21 The trial judge found that in April 2007, Christopher told the respondents and Paul Somerville that he would provide, from his father's estate, for Louise and her children, and that he would also make financial provision for the respondents and their children, by setting up a trust.[10]

22 In making this finding, the trial judge first summarised the evidence of each witness who gave evidence as to what had been said between the parties in April 2007. His Honour then analysed the evidence and the conflicting accounts, giving extensive consideration to background facts and circumstances before concluding that he was satisfied that the representations were made to the respondents.

23 Louise gave evidence as to the April 2007 conversations:[11]

The relationship only improved after the death of Louise's husband on 8 April 2007. On the next day, Christopher arrived, together with her mother and her sister Sue. ... During the following week, Christopher said to Louise that he would help to provide for her sons and her. He said he would set things up for the whole family, and he would do whatever he could.

24 Sue gave evidence as to her April 2007 conversations with Christopher:[12]

Sue gave further evidence that, in April 2007, after Louise's husband Michael was killed, Christopher spoke about setting up trusts for them to support the children. That conversation took place in Tasmania between Kathryn, Sue and Christopher. They discussed the fact that Louise's husband did not leave any life insurance. Christopher said that when things get sorted, 'We would be able to look at setting up some trust funds'.

Mr Shepherd also cross-examined Sue concerning the further particulars provided by the plaintiffs as to the conversations, in which they stated that Christopher had made promises to them to make provision for them out of their father's estate. She stated that the occasions, specified in the particulars, were not all of the conversations which she recollected. She further confirmed that she had a conversation with Christopher, in which she was talking about a trust, in the period after her brother-in-law Michael died. In those conversations, Christopher was talking of looking at trusts. Initially, he talked about a trust for Louise's children, and then a trust for the other members of his family. Later, in 2007, when Christopher returned from Tasmania, he told Sue that he was looking at setting up trusts for the rest of the family.

25 Christopher had a conversation with Paul Somerville whilst driving to Rosebery in April 2007 to collect the personal effects of Michael Skirka:[13]

During that drive, they discussed the devastating effect which Michael's death would have on Louise on her two infant sons. Christopher stated that he would look after Louise, and that she would not have to worry about money. They then discussed the issue relating to Andrew[14], and Christopher indicated that the issue was almost resolved, but that the need to fund payment of Andrew's demands was creating financial pressure on the farm. Christopher stated that once that issue was resolved, he would look after his sisters and his mother. He spoke about dividing the farm into four parts. Christopher stated that the division of the farm would be complicated, with the land and with the water to be separated into four parts, and that it would take time.

Subsequent to that discussion, Paul related to Kathryn what Christopher had said to him. Kathryn said to him that she was reassured by what her husband told her, and, in particular, she was relieved that Christopher would honour his promises to her. Some time later, Paul also told Louise of his conversation with Christopher. In particular, he told her that Christopher had said that she (Louise) would not have to worry about money again, and that he would look after her. In response, Louise was pleased, but remained somewhat sceptical.

26 Paul Somerville was cross-examined and re-examined as to this conversation with Christopher:[15]

Paul denied that Christopher stated only that he would give moral support to his sister Louise. Rather, Paul, stated that Christopher said to him, during that trip, that Louise need not worry about money and that he (Christopher) would look after her. He also stated that, during that conversation, Christopher said that the issue relating to Andrew was almost resolved, but there would need to be some new borrowings, in order to pay Andrew out. He referred to the fact that Andrew was either suing, or had sued, the farm, and that the farm would need to borrow money to satisfy the demand made by him. During that conversation Christopher stated that he had a 'plan' or a 'process' to divide the farm into four parts, which was something which would need to be sorted before he was able to provide financial assistance to his sister.

Paul confirmed that, after that conversation with Christopher, he reported it to Kathryn. In re-examination, he said that he could specifically recall what Christopher had said about providing financial assistance to Louise. Michael Skirka died two days previously, and he (Paul) was concerned about Louise's future, because Michael had been the primary breadwinner, and their two children were very young. The conversation, which he had with Christopher, reduced his concerns in that regard, because Christopher had assured him that Louise would not have to worry about money, because he and the farm would look after her.

27 Eliza Harrison ('Eliza'), a daughter of Sue, aged 19 years, and a university student, gave evidence of a conversation which took place in Tasmania after Michael's death in April 2007:[16]

Eliza had travelled to Tasmania on the previous night with Christopher, her mother Sue and her grandmother. At the time of the conversation, the adults were sitting around the dining room table, and she was sitting on a couch. Louise was crying, and Christopher put his arm around her to comfort her. There was discussion about what Louise would do, and whether she should move back to Victoria. She said that she did not wish to sell her house because she wanted to have it for her two young sons. Christopher told Louise that she should not worry about her financial situation, and that he would always help her out. In cross-examination, Eliza was definite that Christopher had told Louise not to worry, and that he would look after her in a financial sense. She stated that she had a good memory of the conversation, and, in cross-examination, she was able to recall other conversations, which took place at that time.

28 Kathryn gave evidence of a conversation with Christopher in April 2007 following Michael's death outside the front of Louise's house in Hobart on the decking:[17]

She said that, after Michael's death, there was a lot of discussion relating to the fact that Michael had not made a will, and that he did not have life insurance. Louise was expressing concern that she would not have sufficient money. On one occasion, Kathryn had a conversation with Christopher outside the front of Louise's house on the decking. They could see Louise inside the house, speaking on the telephone and crying. Christopher said to Kathryn that he was going to set up a trust for Louise's children, and that he would set up trusts for all of their children.

29 In cross-examination as to the events in April 2007 after Michael's death, Kathryn said:[18]

She reiterated that Christopher had said to her that he was going to set up trusts for the children of his sisters. She had felt angry at that time, because that was a change from his original promise. However, she agreed that she did not express that anger to Christopher. She said that their relationship was already damaged, and she did not wish to cause a further rift at that stage. She said that, after Paul had driven with Christopher to Rosebery to collect Michael Skirka's belongings, Paul reported to her, that Christopher had said that he would look after Louise. She confirmed, in cross-examination, that Paul did not say to her that Christopher had said that the farm was going to be divided into four parts, and that Christopher would make provision for her sisters and herself and her mother, once the assets of the estate had been separated. Kathryn also stated that, in 2007, that [sic] it became clear to her that Christopher was not going to honour his promise of looking after his sisters from the estate. However, her sisters persuaded her that Christopher would honour his promise, but she was really starting to have doubts about that by that stage.

30 Christopher gave contrasting evidence of the conversations in April 2007:[19]

In April 2007, when Christopher heard that his brother in law, Michael Skirka, had died, he travelled to Tasmania with his mother. He said that he did not hear any discussion at that time to the effect that Michael had not had life insurance. He denied having any discussion with Louise, relating to making provision for her, or other members of the family. Further, he denied having any discussions with Louise about establishing a trust for her children. Christopher stated, in his evidence, that he did not have the financial means to make further provision for his sister, or her children, or to establish a trust for them. Furthermore, Louise had a substantial house, and he understood that she was comfortably provided for.

Christopher further denied that, when he drove with Paul to Rosebery, he stated that Andrew's claim was close to resolution. In fact, shortly before the death of Michael Skirka, Christopher had received notice that a writ had been lodged in the Supreme Court. Christopher stated that he did not say to Paul that he would care for Louise, and that she would not have to worry about money. In his evidence, Christopher stated that at that time he did not trust Paul, since he was the husband of his sister Kathryn, from whom he was then estranged. Christopher further denied saying to Paul that the farm was being divided into four parts because the water rights had been unbundled. At that stage, the farm was not in the process of being divided into four parts, and it has not been divided since.

31 In cross-examination, Christopher denied making a promise to Louise in April 2007, that he would provide financial assistance for her and her two sons after her husband's death.[20] He stated that he was not contemplating a division of the farm in April 2007.[21]

32 Ms Kirsty Orr, the partner of Christopher, said that she attended Hobart on the day of Michael Skirka's funeral. She did not hear any statement made by Christopher concerning looking after Louise financially. However, she accepted that she was not at Christopher's side all of the time when she was in Hobart. She said that she had never heard Christopher speak of setting up a trust for his sisters or the children of his sisters.[22]

33 The trial judge considered the conflicting evidence as to the promises and representations made by Christopher at length. He said as to the credibility of witnesses:[23]

As the above summary of evidence demonstrates, the plaintiffs, the defendant and Paul Somerville each gave evidence in chief, and were cross-examined, at substantial length. I had the opportunity to observe them closely while they were giving their evidence. Each of them, as well as the other witnesses, including Eliza Harrison, Kirsty Orr and John Harrison, gave their evidence, and responded to cross-examination, in a forthright and credible manner. I could not detect in the demeanour of any of the witnesses any deliberate attempt to fabricate their evidence, or to mislead the court. Having had the opportunity to observe each of the witnesses carefully, I came to the conclusion that each witness was endeavouring to relate what that witness sincerely believed to be his, or her, honest recollection of the events, which were related in their evidence.

Ultimately, it is necessary for me to examine the particular promises or representations alleged to have been made by the defendant to the plaintiffs, and the circumstances in which those promises or representations were alleged to have been given. It should be understood that, in preferring the account of either one side or the other in respect of a particular promise or representation, I would not, thereby, be finding that the other side had deliberately concocted his or her evidence. As I cautioned the parties at the commencement of this case, the most that a judge, in such a position, can do, is to make findings on the balance of probabilities, based on the evidence which is put before the court. That is the task which I must now undertake.

34 He commented on the conflicting accounts between the witnesses for the parties:[24]

The accounts given by the plaintiffs on the one hand, and the defendant on the other hand, are, of course, diametrically opposed, in respect of the critical events, which are the subject of this proceeding. It would, however, be wrong for me to prefer the accounts given by the plaintiffs and their witnesses, simply by dint of the weight of the number of the witnesses, who supported the plaintiffs' case. This is particularly so, because of the closeness of the relationship between the three plaintiffs, and the very real risk that they may have, unintentionally, affected each other's recollections of the events which are the subject of this case. I hasten to add that there was no evidence that they have deliberately endeavoured to confabulate the accounts which they gave before me. Rather, a number of differences, in detail, in their accounts gave me confidence that that was not the case. However, it would be unrealistic not to expect that there has been, between them, some discussion about the events and circumstances, which have brought about the present dispute, and thus there is, at least, a realistic possibility that they may have, in some regards, unintentionally affected each other's recollections. It is for that reason that I do not consider that I can determine the current dispute on the basis of the number of witnesses who supported the plaintiffs' case, as distinct from the fact that the defendant's evidence (with a couple of exceptions) stands unsupported by any other witness.

35 As to the failure by any party to call Jillian to give evidence, he said:[25]

An additional difficulty, in determining the factual issues in this case, arises from the fact that Jillian Harrison was not called as a witness. Jillian was, in many respects, intimately involved in a number of the events with which this case is concerned. However, she is elderly, and does not enjoy good health. It would have been most unfortunate if she had been required to become involved, as a witness, in the dispute between her adult children. Theoretically, she was available to both sides to be called as a witness. However, realistically and understandably, both sides elected not to call Jillian. It was sensibly agreed that I should not draw an inference, based on the principle stated in Jones v Dunkel, arising from the fact that she was not called.

36 The trial judge then gave extensive consideration to a number of background facts which he considered were important in determining on the balance of probabilities that Christopher made the promises and representations alleged by the respondents and whether they relied on those promises and representations to their detriment.[26] First, he was satisfied on the balance of probabilities, that the evidence given by Christopher, as to the timing, and nature, of the demand made by Andrew Harrison was correct.[27] He was satisfied that Andrew Harrison did not make any financial demand on the farm, or on any member of the family, for recompense for the work which he had performed on the farm, until August 2005.[28]

37 Secondly, on a date about which there was some controversy, the superannuation fund known as VicSuper expressed an interest in the farm.[29] The trial judge was satisfied that the VicSuper expression of interest was not made to the Harrison family until about June 2007. Whilst Kathryn and Sue had accurately recalled the substance of the proposal, they had misremembered the time period in which the proposal was made by VicSuper.[30]

38 The third issue, relating to the timing of an event, concerned the date upon which Christopher ceased to work on the farm. The trial judge accepted Christopher's evidence that he remained working on the farm until November 2006. Early in the next year, he obtained employment with the Victorian Irrigators Council for whom he worked until July 2007.[31]

39 After considering factual differences about dates, the trial judge turned to a second background circumstance which his Honour considered to be important to the issues which he had to resolve. This concerned the relative financial positions of Christopher and of the respondents. It was said that it was unlikely that Christopher would have made the promises attributed to him by the respondents, because, at the time, he did not have the financial means with which to fulfil those promises.[32] At the same time, at least until 2007, the respondents were each in a relatively comfortable financial position, and were not in need of any financial provision from the estate of their father.[33]

40 Another background circumstance, considered by the trial judge concerned the position at the Hopefield farm as a whole, and of the farming operation, between 2003 and 2009.[34] Whilst Christopher had previously dedicated his working life to maintaining the viability of the farm, and working it, by late 2006, he was no longer working on the farm. He was in dispute with Ian Harrison. The resolution of the issues relating to Andrew created financial pressures on the farm. It was evident that Christopher was, at least, entertaining some interest in either the division or sale of the Hopefield farm.[35]

41 The fourth background circumstance concerned the nature of the relationship between the respondents on the one hand, and Christopher, on the other hand, between 2003 and 2009. The trial judge found that it was evident that they enjoyed a close and harmonious relationship at least until some time in 2005, and that in that year, both Kathryn and Louise began to express some disenchantment with the fact that they had been left out of their father's will. There were emails and conversations in 2005 and 2006 between Kathryn, Louise and Christopher where the institution of legal proceedings by the sisters concerning the estate was discussed. The trial judge found that in about 2006, Kathryn and Louise discussed the possibility of bringing legal proceedings, and when Sue told Christopher he became angry in response. The result was that Christopher ceased to have any significant contact with Kathryn and Louise until the death of Michael Skirka in April 2007.[36]

42 Christopher gave evidence that in late 1998 or early 1999 he informed the respondents of the nature of Kenneth's will, and gained an assurance from them that they were satisfied with the dispositions made by Kenneth in that will. However, the trial judge was not satisfied on the balance of probabilities that these conversations did occur. He also held that this conclusion did not mean that Christopher had either consciously or unconsciously fabricated the conversations about which he gave evidence.[37]

43 In making his finding that promises were made by Christopher after the death of Michael Skirka in April 2007, the trial judge considered the changes in background circumstances that had occurred compared to the two earlier periods that he had considered. Those changed circumstances were: [38]

(a) Christopher ceased work on the Hopefield farm in November 2006, and, in early 2007, obtained alternative employment. By then, he had become fixed in his decision not to return to working on the farm.

(b) In December 2006, he had instructed his solicitor to send a letter to Ian Harrison and his uncles seeking a division or sale of the land. Christopher was prepared to contemplate the division of the Hopefield farm, and would have foreseen that the unity of the Harrison family was so fractured, that it was unlikely that the farming operation, which had previously endured for some six generations, would continue in the future.

(c) In June 2007, an expression of interest was received from VicSuper. A discussion paper was prepared by Christopher identifying the advantages of a sale of the Hopefield farm as a whole. It was implicit in his discussion of the advantages that he was contemplating that the alternative solution for the Hopefield farm would be the division of the property into quarter shares.

(d) By April 2007, the dispute with Andrew Harrison was coming to a head. A writ was filed in the Supreme Court on 4 April 2007. By the time that Christopher attended in Hobart, he was aware, and had agreed to a mediation process in order to resolve Andrew's claim. The dispute with Andrew was resolved one month later with Noel Harrison paying $1.3 million to Andrew.

(e) The death of Michael Skirka left Louise with two small children. Michael Skirka had been a successful geologist, and his death left Louise financially vulnerable, particularly as Michael Skirka did not have any life insurance. The death acted as an 'emotional circuit breaker' bringing the family together at a time of crisis.

44 The trial judge accepted the evidence of the respondents, Paul Somerville and Eliza that a number of promises and representations had taken place in Hobart immediately after the death of Michael Skirka:[39]

(a) Christopher had said to Louise that he would help to provide for her sons and her, and that he would set things up for the whole family.

(b) Sue stated that Christopher spoke about setting up trusts for Louise to support Louise's children, and to support all of his siblings' children including his own.

(c) Kathryn said that in a conversation which she had with Christopher at the front of Louise's home, Christopher stated that he would set up a trust for Louise's children, and that he would also set up trusts for all of their children.

(d) Paul Somerville stated that in a trip to Rosebery, Christopher said that he would look after Louise financially, and that, when the issues relating to the farm were sorted, he would look after his sisters and his mother.

(e) Kathryn stated that Paul reported to her, after the trip to Rosebery, that Christopher had told Paul that he (Christopher) would look after Louise.

(f) Eliza gave evidence as to a conversation she heard take place in Louise's house, in which Christopher said that Louise should not worry about money matters, and that he would always help her out.

45 The trial judge accepted Paul Somerville's evidence that during the road trip to Rosebery, Christopher stated that he would provide financial assistance for Louise, and that when the issues relating to the Hopefield farm were properly sorted, he would make financial provision for his sisters and mother.[40]

46 Counsel for Christopher advanced a number of criticisms of the trial judge's findings as to the representations found to have been made in Hobart in April 2007. These criticisms were the same as, or similar to, arguments put to the trial judge during the trial. Counsel submitted in substance that:[41]

(a) Christopher's financial position had not improved since 2005, and he had not taken a transfer of the Hopefield farm land or water rights. The farming business was already conducted through the Hopefield Trust by a trustee, and encumbered by mortgage. It was improbable that because Michael Skirka had died that Christopher would make promises to provide not just for Louise and her sons, but also for Kathryn and Sue and their children by setting up a trust.

(b) The statements made to Louise by Christopher were to the effect that he would look after her financially. Louise did not understand what a trust was.

(c) Louise did not refer to the making of the promise by Christopher in emails sent by her around this time. Her explanation was that she did not need to because he was her brother and she trusted Christopher.

(d) Kathryn's evidence of what Paul Somerville told her after the car trip to Rosebery, and in her witness statement did not include reference to Christopher stating that he would make provision 'for the grandchildren'. Kathryn's evidence contradicted the evidence of her husband, Paul Somerville, in a number of respects. Her evidence was improbable, and his evidence was a replication of promises alleged to have been made to her by Christopher in April 2003 at a meeting in the kitchen of their mother Jillian's house. His evidence had included errors as to the date Andrew had made his claim, and as to the VicSuper offer.

(e) Sue's evidence - that when in Tasmania Christopher spoke about Louise's children and other family members - was disingenuous, contradicted by Kathryn's evidence, and not contained in any particulars of the Further Amended Statement of Claim ('FASC').

(f) The evidence as to the making of the representation to Paul Somerville during the car trip was improbable, and it was most likely that it had been reconstructed.

(g) Kathryn's evidence was more consistent with Sue's evidence as to what Christopher had said in Hobart and cast doubt as to Sue's evidence as to the conversations that had occurred.

(h) Paul Somerville's evidence that he discussed the VicSuper offer with Christopher during the journey to Rosebery on 10 April 2007 was inconsistent with that of Mr Tamblyn, the bank manager, and Christopher himself. The evidence given by them was that they first heard in June 2007 that VicSuper had an interest in the Hopefield farm.

(i) Eliza's evidence that in 2005 her Nanna and Chris were quite upset and quite angry about Andrew Harrison pursuing legal proceedings against the estate was incorrect because those proceedings were only commenced in April 2007.

(j) It was improbable that having been left the farm, and taken the burden of the financial accommodation that Christopher would then have promised to transfer any part of the Hopefield farm land or water rights to a trustee to hold on trust for his sisters.

(k) Kirsten Orr arrived at Hobart on the day of Michael Skirka's funeral in April 2007, and was with Christopher at various times. She did not hear any discussions about trusts or promises made in relation to Louise or financially looking after Louise, or of Christopher setting up a trust for his sisters.

(l) Christopher had intended to convey that he wanted to support Louise emotionally, but not to make provision from the estate and that he did not intend to convey the latter.

(m) The trial judge should have rejected the evidence of the respondents as unreliable witnesses.

47 At the hearing of the appeal, Senior Counsel for Christopher emphasised a number of matters. He contended that:

(a) There was a significant disparity between the amount of income received by Christopher of about $20,000 per year (which was treated as a loan against this capital in the farming business) and the amounts earned by his sisters. Sue was earning $93,500 per annum, Louise worked as the manager of a Rehabilitation Unit at Hobart Hospital, her late husband Michael was a geologist, and Kathryn was receiving $180 a day as a teacher, working part-time. Her husband was earning $42,000 a year.[42]

(b) Christopher's assets were modest, as against those of his sisters; [43]

(c) The Hopefield farm was basically worth $2.9 million, which was less than the $3.5 million, or something in that order, it was worth at Kenneth's death, unlike the assets of the sisters which had doubled or almost doubled;[44]

(d) If the Hopefield farm was sold, Christopher would lose income of $400 a week;[45]

(e) The VicSuper offer was irrelevant as it was not made until June 2007 after the promises and representations were said to have been made; and was rejected by the family;[46]

(f) The progress of the dispute with Andrew Harrison did not make it more probable that the representations would be made, as the payout of $1.3 million to Andrew Harrison would place a strain on the operations, even though it was to Noel Harrison's account;[47]

(g) It would have been madness for Christopher to offer to support his sisters who were far better off;[48]

(h) There was no written communication between the sisters or anyone else which corroborated the making of promises by Christopher such as were alleged;[49]

(i) The conversations between family members at Hobart in April 2007 were conversations where the family was grieving - there were always going to be offers of help, but the exchanges were not intended to strike up or give rise to legal obligations;[50]

(j) The various descriptions of the conversations between Christopher and the family were different and inconsistent;[51]

(k) The representations are dependent on the veracity and accuracy of the evidence of witnesses;[52]

(l) Whilst his Honour was correct when he was not prepared to simply accept that the representations alleged by each of the witnesses in the witness box were sufficient to discharge the onus, the respondents were struggling in trying to recall the conversations so much later;[53]

(m) Christopher was not more likely to have made the representations because of the changed circumstances;[54] and

(n) The only experience which the members of the family had with trusts was with the CBH Family Trust, which was a discretionary trust, and did not give any proprietary interest in land.[55]

48 On hearing an appeal, an appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'.[56] However, the appellate court has some disadvantages when compared with the trial judge.

49 Those disadvantages were summarised by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy:[57]

The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'. On the other, it must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.

50 Of the task of the appellate court, the same judges of the High Court said in Fox v Percy:[58]

Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of 'weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect'. In Warren v Coombes, the majority of this Court reiterated the rule that:

[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.

51 In Kelso v Tatiara Meat Co Pty Ltd,[59] a five member bench of this Court reviewed the majority judgment of the High Court in Warren v Coombes,[60] and earlier High Court decisions,[61] and the decisions of Powell v Streatham Manor Nursing Home[62] and Benmax v Austin Motor Co Ltd,[63] before concluding as to the majority judgment in Fox v Percy that:[64]

They recognised that the appellate court was required to weigh conflicting evidence and draw its own inferences and conclusions, which, as Warren v Coombes made clear, it could be as well placed as the primary judge to do where the facts were undisputed. Although, following Warren v Coombes, a trilogy of High Court cases (Jones v Hyde; Abalos v Australian Postal Commission and Devries v Australian National Railways Commission), had expressed a 'corrective', reiterating the traditional requirement to respect the advantages of the trial judge, especially where his or her decisions might be affected by the credibility of witnesses, their Honours made clear that a 'ritual incantation' about a witness's credibility did not excuse the appellate court from making its own assessment and forming its own conclusions, particularly where there were 'incontrovertible' facts to the contrary, and even, 'in some, quite rare cases', where there were facts falling short of 'incontrovertible'.

The majority in Fox v Percy did not, in terms, question the validity of the trilogy of cases reaffirming the need to respect the trial judge's advantages in relation to credit and seeing witnesses, and to make proper allowance for them. Indeed, they referred to many examples of such advantages (not confined to seeing witnesses) and concluded that it was only if, after having made allowance for them, that the appeal court may 'conclude that an error has been shown, [and] they are authorised, and obliged, to discharge their appellate duties in accordance with the statute'.

52 Dodds-Streeton JA,[65] with whom the other members of the Court of Appeal agreed, referred to the change of approach in Fox v Percy as stated by Kirby J in the later High Court case of CSR Ltd v Della Maddalena[66] in the following terms:[67]

Under the 'shift in instruction' in Fox v Percy, the correct appellate approach was, Kirby J said, to examine whether the reasoning of the primary judge rested on a credibility determination or inferences from facts which were undisputed or found by the trial judge, but:

Even in the case of expressed credibility findings, the statutory duty to conduct a real 'rehearing' remains. It may sometimes justify reversal of a decision by a primary judge who has 'failed to use or has palpably misused his advantage' or where 'incontrovertible facts or uncontested testimony' demonstrates the finding to be erroneous; or where they are 'glaringly improbable' and 'contrary to compelling inferences'.

However, where the conclusion of the primary judge depends on inferences drawn from undisputed facts or facts that have been found but can equally be redetermined by the appellate court, without relevant disadvantage, the duty of the appellate court is clear. It derives from the parliamentary enactment. It 'will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.'

53 Having reviewed the evidence, and the findings of the trial judge, I conclude that the trial judge's findings that the representations were made by Christopher to the respondents and to Paul Somerville in April 2007 were open to him and were well founded on the evidence for a number of reasons:

(a) The trial judge had, and was entitled to accept, the evidence of Louise as to what Christopher had said, as well as that of Sue and Kathryn that the promises and representations had been made.

(b) That evidence was supported, and corroborated by the conversation which took place between Paul Somerville and Christopher during the drive to Rosebery in April 2007.

(c) The evidence of Sue was corroborated by the evidence of Eliza as to what was said by Christopher in Tasmania in April 2007.

(d) Whilst Kristy Orr stated that she did not hear any statement by Christopher concerning looking after Louise financially, nor hear Christopher speak of setting up a trust for his sisters or the children of his sisters, she accepted that she was not at Christopher's side at all times.

(e) There was no evidence that the respondents had sought to confabulate the accounts that they gave, and there were differences of detail in the accounts that they gave.

(f) By the time the representations were made, Christopher had left the farm. He ceased working on the farm and left in November 2006 gaining employment with the Victorian Irrigators Council.

(g) By late 2006, Ian Harrison was in dispute with Christopher and Ian's brothers. By a letter from Ian's solicitor Peter Cahill dated 8 December 2006, a proposal had been put for the farm to be divided between the family members with the farming operation to be split up between them.

(h) Christopher was well aware that Louise and Kathryn were considering legal proceedings concerning the estate. Given that Christopher was attending the funeral in Hobart for Louise's husband, Michael Skirka, Christopher would have been alive to the fact that during his stay in Hobart there was likely to be discussion between members of the family as to the position in relation to Kenneth's estate and the possible threat of legal proceedings.

(i) Sue had been acting as the family intermediary, and was on better terms with Christopher than her sisters. It was likely that Sue would ask Christopher as to the situation with Kenneth's estate during the family's visit to Hobart for the purpose of consoling Louise and attending Michael Skirka's funeral.

(j) Given the tragic circumstances of Michael Skirka's death and the impact that this would have on the livelihood and well being of Louise and her young family, it was highly likely that the question of Kenneth's estate would arise in discussions between Christopher and his sisters.

(k) Christopher's asset position was substantial as he had received the vast bulk of Kenneth's estate with the balance $101,000 passing to Jillian. The value of Hopefield and of various other assets for probate purposes was $3.359 million with the one quarter share of the debt of CBH amounting to $112,270.[68] Family members were aware of this. It was natural that they would look to Christopher for financial support and assurance in the circumstances and even if the value of Hopefield, including its water rights, had reduced to $2.9 million since Kenneth's death in adverse market conditions.

(l) Whilst no written document or confirmation was prepared at the time, this is hardly surprising given the circumstances of the funeral and emotional nature of the family visit to Hobart, and given that the conversations took place between family members.

54 As to the other arguments advanced on behalf of Christopher concerning the representations found to be made in Hobart in April 2007:

(a) Christopher had inherited Hopefield. It was open to him to sell, divide or operate that property. He had ceased to operate the Hopefield farm, and it would not be surprising if he, as well as his sisters, were entertaining the sale or division of the Hopefield farm itself.

(b) It is clear that in April 2007 Louise was looking for assistance from Christopher in the circumstances where she had recently become a widow, and had two young children.

(c) The case on behalf of Christopher was that all that was discussed in April 2007 was 'emotional support' to Louise. It is very unlikely that all that was discussed was 'emotional support', and that no discussions of the financial position of Louise and her two young children took place. Any discussion of the financial plight of Louise would inevitably lead to a discussion of entitlements in Kenneth's estate.

(d) Christopher got on reasonably well with Paul Somerville. It is likely that they did discuss the situation of the Hopefield farm during the drive to Rosebery. It is very likely in such a conversation that the interest of the sisters in Hopefield would be discussed. It was entirely open to the trial judge to conclude that the representations said to have been made by Christopher to Paul Somerville in this conversation were in fact made.

(e) The trial judge heard from both Paul Somerville and Christopher at length. It was open to him to accept much of Paul Somerville's evidence whilst rejecting some parts of it. It was open to him to conclude that even if a part of the evidence as to the conversation with Christopher was mistaken, other parts of the evidence were probative and should be accepted.

(f) Whilst there are some differences between the evidence of Louise, Kathryn and Sue as to what was said in the conversations in April 2007, the trial judge concluded that each witness was telling the truth to the best of her recollection.

(g) Although division and sale of the Hopefield farm would give rise to the loss of an income stream of $400 per week to Christopher, investment of Kenneth's share of the proceeds of sale of a property estimated in value at $2.9 million or more would give rise to a significantly greater income stream.

(h) The payment of $1.3 million to Andrew Harrison was consistent with the substantial value of Hopefield - insofar as this payment constituted a burden on the farm it was to Noel Harrison's account and not to that of Christopher. The value of Christopher's interest in Hopefield itself was unaffected by the settlement with Andrew Harrison.

(i) It was obvious that Louise, Kathryn and Sue had a possible claim on the estate of their father Kenneth, and would naturally be interested in the disposition of the family's principal asset - Hopefield. It is equally likely that their interest in that property would be discussed with Christopher.

(j) It was understandable that the sisters did not put their claims in writing following Christopher's assurances. He was their brother and his sensitivity on this issue caused family estrangement for two years. It is reasonable that the sisters would wish to avoid further difficulties.

(k) The conversation that took place in Hobart occurred at a time when the family was assembled. It was natural for conversations as to the support of Louise and her two children and the disposition of family assets to have occurred, at or around this time, and to have extended to the distribution of the assets in Kenneth's estate.

(l) Whilst the sisters may have had little or no experience with trusts, Christopher had experience with the CBH Family Trust, and may well have considered a trust arrangement to be an appropriate and convenient way to confer an interest, and provide financial protection to other family members.

55 After considering the whole of the evidence and the reasons for decision of the trial judge, I have come to the same conclusion that on the balance of probabilities, the April 2007 representations were made by Christopher. I am not satisfied that any of the grounds of appeal relating to the trial judge's findings as to the representations found to be made in Hobart in April 2007 are made out. I am not satisfied that any of the findings of the trial judge as to the representations made in Hobart in 2007 are incorrect, or were not available to him. I am not satisfied that any of the trial judge's findings as to the representations made in April 2007 were contrary to the evidence, or the weight of evidence, or that the trial judge failed to give consideration to any of the matters listed in the grounds of appeal. To the contrary, the trial judge carefully summarised and analysed the evidence given at the trial. I am satisfied that the trial judge's findings as to the representations that were made by Christopher in April 2007 and as to the substance of those representations are correct, and should be upheld.

(2) The alleged representations made to Sue in January 2008 at 214 Sullivans Road, Strathfieldsaye.

Grounds of Appeal 3, 4, 5, 6, 7, 20, 22, 23, 24, 25 and 29.[69]

(3) Subsequently, during 2008, the appellant confirmed to Sue that he would abide by those promises.

Grounds of Appeal 5, 29 and 30.[70]

56 The trial judge summarised the evidence concerning the representations said to have been made in January 2008, and late in 2008 commencing with Sue's evidence:[71]

The next conversation of note is that which took place in the rumpus room of the Sullivan Road premises, to which Sue had moved in early 2008. Sue's evidence is that, on that occasion, Christopher made further promises of setting up trusts, and of providing financial support for her and Eliza, and for the family. In particular, she said that, on that occasion, Christopher was taking photographs of her new baby. Sue's then husband, Glen, and Kirsty, were present at the house, but they were in another room. Sue stated that she spoke to Christopher about trusts, because she did not understand what they meant. Christopher responded that, when the farm split up, he would set up a trust from it, which would work like the Myer's trust, and from which all family members would benefit. Sue, in her evidence, also stated that Christopher and she spoke about Eliza's wish to go to university, and Christopher stated that he would help to provide for Eliza's university fees. Sue explained that she had previously heard Eliza talking to Christopher on the telephone about that matter, and that Christopher and Eliza were very close.

In cross-examination, Sue stated that she said to Christopher that her sisters did not believe him, and she asked 'Are you going to provide for us?' to which he responded 'Yes'. It is not entirely clear from the evidence whether Sue, in that passage, was referring to the conversation in the rumpus room, or another conversation in 2008. In further cross-examination, she stated that, in the conversation with Christopher in the rumpus room, Christopher had said 'You do not understand, it was a business transaction, dad has trusted that I would look after things'. She said that Christopher talked about providing a sum of $30,000 for each of the grandchildren. He said that Eliza would shortly be able to receive $30,000, because she was starting university in two years' time. In further cross-examination, Sue stated that, in fact, Eliza was present for some of the conversation. She agreed that she had not referred, in her evidence in chief, to Eliza being present for the conversation, and she said that she felt under stress when she was giving her evidence in chief.

57 Eliza also gave evidence of the conversation with Christopher in early 2008. The trial judge found:[72]

Sue's evidence gained some support from Eliza Harrison. She stated that she was present on the occasion on which Christopher attended the premises at Sullivan Road in order to take photographs of her youngest brother Lachlan. Eliza had a clear recollection of Christopher stating, on that occasion, that he would provide financial support for her when she went to university. Eliza had a reason to recall the conversation, because, at that time, she was focused on showing to Christopher an offensive email, which she had received from her own father.

On the other hand, Christopher denied making to Sue the representations alleged in her evidence. Further, Kirsty had a good recollection of attending at Sue's premises that day, and she was firm in her denial that Christopher and Sue, in her presence, had discussed the matters stated by Sue in her evidence. Kirsty's recollection was that she remained in Christopher's company for the entire visit, save when Christopher went outside to have a cigarette on his own.

58 The trial judge commented as to the accounts given by the respective witnesses:[73]

The conflict in the witnesses' evidence is difficult to reconcile. As I have already stated, judging on their appearance in court, and the manner in which they gave their evidence, each witness presented as sincere and honest. Having given the matter careful consideration, I am, however, satisfied, on the balance of probabilities, that Christopher did give some assurance, on that occasion, to Sue that when the Hopefield farm was divided, he would set up a trust, from their father's estate, in order to make financial provision for their family. I am also satisfied that, in that context, he made mention of having available funds, with which to assist Eliza in her university course.

Although Kirsty Orr had a clear recollection of being in Christopher's company for the duration of the visit, it is nevertheless quite possible that Sue did have a conversation, with her brother, which was not in Kirsty's presence, at that time. The conversation related by Sue, in her evidence, was fairly short in duration. The main purpose of Christopher's visit was to photograph Lochlann [sic], and to make a social call to his sister. I doubt that such a conversation would have taken particularly long. It is quite feasible that Kirsty may not have been present, or within hearing, during that conversation, notwithstanding that her recall is that she was in Christopher's company for nearly all of the visit.

59 As to the family context of the conversations, the trial judge found:[74]

It is clear that, by early 2008, Louise and Kathryn were becoming sceptical about the undertakings made by Christopher to them at about the time of Michael Skirka's death. On the other hand, Sue, who was still on amicable terms with Christopher, clearly did not wish to become involved in a legal dispute with her brother. It is understandable, therefore, that, at that time, she would have been broaching with Christopher whether he was prepared to proceed with the suggestions which he had made, previously, about setting up a trust. Although Eliza was not due to attend university for another two years, it is also understandable that Sue would have been pleased for Christopher to set up such a trust in time to enable Eliza to obtain financial assistance for her university fees.

60 Sue's position at this time was strongly influenced by the lack of confidence in Christopher on the part of Kathryn and Louise:[75]

During 2008, the relationship between Christopher, on the one hand, and Louise and Kathryn, on the other hand, remained strained. Kathryn and Louise had lost faith that Christopher would make provision for them out of their father's estate. However, Sue remained in contact with Christopher. In cross-examination, Sue said that, during that time, she confronted Christopher, and said to him 'My sisters don't believe you but you are going to provide for us aren't you?' and he responded 'Yes'.

61 There is no doubt that in early 2008, a conversation took place between Christopher and Sue in the rumpus room of premises at 214 Sullivans Road, Strathfieldsaye, to which Sue had moved in early 2008. According to Sue and Eliza, Christopher made further promises of setting up trusts, and of providing financial support for her and Eliza, and for the family. Christopher was taking photographs of Sue's new baby, Lachlan. Sue spoke about Eliza's wish to go to university, and Christopher stated that he would help to provide for Eliza's university fees. Sue referred to the fact that her sisters did not believe Christopher when he said that he would provide for them.[76] She said that she confronted Christopher to the effect that her sisters did not believe him, seeking confirmation that he would be providing for Sue and for them. According to Sue, Christopher gave that confirmation.

62 In her evidence, Eliza referred to the same occasion, and clearly recalled that Christopher stated that he would provide financial support for her when she went to university.[77] The trial judge was satisfied on the balance of probabilities that Christopher did state, to Sue, in January 2008, that he would set up a trust, from their father's estate, in favour of his sisters and their children.

63 By this time, Kathryn and Louise were giving serious consideration to pursuing legal proceedings against the estate. Sue was still trying to dissuade them from doing so, by obtaining assurances from Christopher that he would make provision for them. This is illustrated by emails of 8 and 9 September 2008, in which Christopher stated that he was disinclined to talk to Kathryn, because he understood that Kathryn and Louise were issuing legal proceedings against their father's estate.[78]

64 The trial judge was satisfied that when Christopher spoke to Sue at the beginning of 2008, he was aware that Sue would report the substance of the conversations to Kathryn and Louise. Sue stated that she told Christopher that she would be telling Kathryn and Louise what he told her. Sue's purpose was to gain an assurance from Christopher as to his intentions which she could convey to her sisters so as to placate them. Christopher knew that his sisters talked regularly amongst each other, as was the case.[79]

65 In the submissions, counsel for Christopher challenged the trial judge's findings as to the representations made to Sue in January 2008 and subsequently in 2008 that he would abide by those promises. It was submitted in substance that:

(a) Louise and Kathryn did not plead or particularise a representation made to them in January 2008. Kathryn did not plead or particularise a representation made after 10 December 2005. Sue did provide particulars of a promise in or about January 2008, but the particulars of the promises varied from those in her witness statement.[80]

(b) Whilst the trial judge did not accept that Christopher made any undertaking that funds would be available to the grandchildren soon, the trial judge should have rejected Sue's other evidence about the conversation which took place in the rumpus room, including Sue's evidence that he would set up a trust.[81]

(c) It was improbable that Christopher would promise to set up a trust 'to be owned by everyone', and that any sum would be paid to the grandchildren based on the circumstances of the Hopefield farm and Christopher's circumstances.[82]

(d) Kirsten Orr's evidence concerning the meeting on 19 January 2008 was that the visit to the Sullivans Road property was predominantly to take photographs of Sue's children and that Eliza was not present during the one to one and one half hours she was there.[83]

(e) Christopher's evidence as to the meeting in January 2008 was also that Eliza was not present. He denied any of the alleged representations and said that there was not any way that he could have arranged for each of the grandchildren to receive $30,000.[84]

(f) Louise did not give evidence of any direct discussion with Christopher in 2008 concerning any promises.[85]

(g) Sue did not in her evidence in chief refer to her daughter Eliza being present in the house, and only whilst under cross-examination referred to her presence during the conversation in the house whilst under cross-examination.[86]

(h) The evidence of Eliza Harrison differed from that of Sue as to the dialogue between Eliza, Sue and Christopher. There were differences in recollection as to who referred to Eliza attending university during the conversation.[87]

(i) Eliza gave evidence that the meeting was in February 2008. However, the photographs of baby Lachlan bore the date 19 January 2008, and the evidence of Kirsten Orr was to the effect that the meeting was in mid January 2008. This made it probable that Eliza was not living at the Sullivans Road property on 19 January 2008. She accepted under cross-examination that it was possible that Kirsty Orr was there but she could not remember.[88]

(j) There were differences between the evidence of Sue, Louise and Kathryn about whether and what Sue had reported about this meeting to Louise and Kathryn, and about what was said in conversations in 2008 and 2009.[89]

(k) The trial judge failed to give weight to Sue's evidence that Christopher had not in January 2008 committed to doing more than 'looking at ways to provide for everyone'. The expression 'would look at' appeared in particulars to the FASC.[90]

66 As to the third representation accepted by the trial judge to the effect that during 2008, Christopher confirmed to Sue that he would abide by 'those promises', it was submitted on behalf of Christopher in substance that:

(a) This representation was not opened, pleaded or particularised, and was not the subject of evidence in chief by Sue;[91]

(b) The evidence and the pleadings did not enable the trial judge to fix the date of the alleged third promise, and it could not on the evidence be found to have been made before 29 July 2008;[92]

(c) This was critical as the final distribution was made on 29 July 2008; [93]

(d) Christopher denied in his evidence that a question was put to him by Sue or that he said the words alleged whilst Sue's evidence of the conversation was uncertain in time and place;[94]

(e) The court made no finding as to the date of the 'incident with' Sue, and the evidence of Kathryn and Louise did not establish the relevant 'incident'.[95]

67 After reviewing the evidence and the trial judge's findings as to the representations said to have been made to Sue in January 2008, I am of the view that his findings were available on the evidence and were well based:

(a) The trial judge was entitled to accept the evidence of Sue that the representations were made.

(b) Sue's evidence was to the effect that she spoke to Christopher about trusts and he explained how a trust would work. She also spoke about Eliza's wish to go to university, and Christopher stated that he would help provide for Eliza's university fees.

(c) Sue gave evidence that Eliza was present for some of the conversation.

(d) Eliza gave evidence as to the occasion when she was present and on which Christopher attended at the premises at Sullivans Road in order to take photographs of her youngest brother Lachlan.

(e) Given that by early 2008, Louise and Kathryn were becoming sceptical about undertakings made by Christopher at about the time of Michael Skirka's death, and given the ongoing discussions between the three sisters, it is reasonable to conclude that Sue was the only one of the three on amicable terms with Christopher who would ask him whether he was prepared to proceed with the suggestions he had made previously about setting up a trust.

(f) Sue did not want to become involved in a legal dispute with Christopher. It is entirely likely that she would ask him at the first opportunity about the representations he had earlier made to Sue and her sisters and Paul Somerville.

(g) Although Eliza was not due to attend university for another two years, it is not surprising that she and Sue were concerned to see that a trust was established in time to enable her to obtain financial assistance for her university fees.

(h) Whilst the dispute with Ian Harrison had been resolved, Christopher was still estranged from Ian. He was not considering becoming actively involved again in the farming operations. He had not conducted farming operations at the Hopefield farm since 2006.

(i) Given Christopher's estrangement from Ian Harrison, it was consistent with his own interests to consider a division of his share of Hopefield from the remainder of that property.

68 As to the submissions made on behalf of Christopher relating to the third representation accepted by the trial judge:

(a) The substance of the third representation was that he would abide by the promises made in April 2007, and repeated in January 2008;

(b) It is immaterial that the evidence as to the particular conversation which the trial judge accepted many have been elicited in cross-examination and may not have been identified in the particulars provided by the respondents;

(c) Whilst the trial judge did not make a finding as to the precise date of the conversation, he found that it occurred during 2008, and that Christopher was aware that Sue would report the substance of the conversation to Kathryn and Louise;

(d) The third promise was simply a confirmation by Christopher that he would comply with his promises made in April 2007 and January 2008;

(e) The promises made in April 2007 and January 2008 were the operative promises;

(f) Those promises were made before the distribution date of 29 July 2008;

(g) Whilst Christopher denied in his evidence that a question was put to him by Sue, or that he said the words alleged, it was open to the trial judge to prefer Sue's evidence as to this conversation for the reasons that he gave.

69 As a result, I am not satisfied that any of the grounds of appeal relating to the second and third representations made by Christopher in January 2008 or subsequently during 2008 that he would abide by his earlier promises are made out. I am not satisfied that any of the trial judge's findings as to the second and third representations were contrary to the evidence, or the weight of evidence, or that the trial judge failed to give consideration to any of the matters listed in the grounds of appeal. To the contrary, the trial judge carefully summarised and analysed the evidence given at the trial. I am satisfied that the trial judge's findings as to the second and third representations that were made by Christopher and as to the substance of those representations are correct, and should be upheld.

Whether Christopher knew, understood or intended Paul Somerville and Sue to be conduits of promises or representations made by him

Grounds of Appeal 2, 25, 29 and 30.[96]

70 The trial judge held that Christopher was aware at the beginning of 2008 and during 2008 that Sue would report the substance of the conversations to Kathryn and Louise. He accepted Sue's evidence that she told Christopher that she would be telling Kathryn and Louise what he told her. Christopher acknowledged in his evidence that he knew his sisters talked regularly amongst each other, as was the case. As a result, the trial judge found that when, in January 2008, and subsequently in 2008, Christopher made to Sue, the representations that the trial judge found that he made, he did so in the knowledge that Sue would communicate the substance of the representations to Louise and Kathryn.[97]

71 In addition, the trial judge was satisfied that when he made representations to Paul Somerville in April 2007, Christopher understood that Paul would repeat those representations to his wife, Kathryn, and that it was likely that she, in turn, would inform Louise and Sue about them.[98]

72 The main criticisms raised on behalf of Christopher are:

(a) The evidence of Paul Somerville did not establish that he told Christopher in April 2007 that he would relate to his wife Kathryn matters discussed between them;[99]

(b) There was no understanding by Christopher that Paul Somerville would repeat the representations to his wife, Kathryn;[100]

(c) Christopher denied that Sue had made it clear to him that she was brokering deals or transferring conversations to his sisters;[101]

(d) After Christopher was told by Sue in late 2005 that Kathryn and/or Louise had sought legal advice Christopher was estranged from Kathryn and Louise;[102]

(e) Given the estrangement between Christopher on the one hand, and Kathryn and Louise on the other, and given that Kathryn was encouraging her other sisters to seek legal advice, and in fact sought legal advice herself in 2008, it was unlikely that Christopher would make any promises to Sue, or authorise Sue to communicate the promise to them;[103]

(f) There was no conduit link established on the evidence between Paul Somerville to Kathryn, and then to Sue or Louise;[104]

(g) The evidence of the estrangement in 2008 made it improbable that Christopher knew and intended that Sue would convey the substance of the promises made in 2008 to Kathryn and Louise.[105]

73 In my view, the findings of the trial judge were correct. Some of the salient circumstances are:

(a) The sisters had been left out of Kenneth's will. It was highly likely that they would discuss this amongst themselves, with Paul Somerville and other family members.

(b) The distribution of the estate had been discussed at Hobart in April 2007 following Michael Skirka's death. It was very probable that the affairs of the estate and the outcome of the discussions would be of continuing interest and concern to family members.

(c) According to his own evidence, Christopher spoke to both Kathryn and Sue together about the will in late 1998 or early 1999 when they were visiting Freedom Fields.[106] He then spoke to Kathryn and Paul at Axedale in early January 1999.[107]

(d) Christopher gave evidence that when he was with his sister Sue at his home at Durham Ox in 2005, Sue told him that Kathryn was encouraging her sisters to seek legal advice in respect to making a claim on their father's estate.[108] It is obvious from this conversation that Christopher knew that his sisters were consulting and acting in a coordinated way.

(e) Christopher also gave evidence that he did not trust Paul Somerville in April 2007 when they drove to Rosebery, since he was the husband of Kathryn, from whom he was estranged.[109] It is apparent from this evidence that he personally expected that what he said to Paul would be repeated to Kathryn.

(f) In the emails of 8 and 9 September 2008, Paul Somerville encouraged Christopher to communicate with Kathryn, and Christopher stated that he was disinclined to do so, because he understood that Kathryn and Louise were issuing legal proceedings against their father' estate.[110]

74 The trial judge found that Paul Somerville did enjoy a good relationship with Christopher at least over some of the time. When they travelled by car to Rosebery together, Christopher was aware that Paul would inform his wife Kathryn as to what was said about his intentions for Kenneth's estate.[111] It would have been remarkable if it were otherwise.

75 Christopher not only must have expected that Paul Somerville would report what was said in the road trip to Kathryn, but also that she would in turn report it to Louise and Sue. He would have been aware, or consider it highly likely that what he said to Paul Somerville would be reported to the other members of the family.

76 Having regard to the family situation and circumstances, it would be expected that the respondents and Paul Somerville would have discussions amongst themselves, and review what was said by Christopher to any one of them. Christopher was well aware that they had regular discussions amongst themselves.[112] He acknowledged as much in his own evidence when he said that he treated Kathryn and her husband as one and the same at the time of the car trip.[113]

77 Given the above, I am satisfied that the trial judge's findings that Christopher knew that Paul Somerville and Sue would pass the promises and representations made by Christopher onto other family members was well founded and consistent with what Christopher knew and expected having regard to the relationships that existed between the respondents, and Paul Somerville.

78 I am satisfied that the trial judge's findings that Paul Somerville and Sue would inform other family members of what Christopher said was the correct conclusion to draw from the facts in evidence, and the family circumstances and relationships, and that there is no substance in the grounds of appeal which seek to challenge the findings of the trial judge to this effect.

Whether any expectation on the part of the respondents was engendered by the promises or statements, and if yes, what was it

Grounds of Appeal 7, 8, 20, 23, 24(c), 29 and 30.[114]

79 The trial judge was satisfied that Christopher represented to the respondents and to Paul Somerville in April 2007 that he would make provision for Louise and her sons, and for each of his other sisters and their children.[115] In January 2008, as the trial judge also found Christopher told Sue at the property at Sullivans Road, Strathfieldsaye that when the Hopefield farm was split up, he would set up a trust from Kenneth's estate for the benefit of family members.[116] This was confirmed subsequently during 2008.[117]

80 The arguments advanced on appeal as to 'expectation' are similar in a number of respects to arguments put to the trial judge. The main arguments on behalf of Christopher are in summary:[118]

(a) It is said that it had been represented by each of Louise and Kathryn in an email dated 13 September 2005 that they did not want the farm.[119]

(b) It is said that Louise's evidence is disingenuous, and that her expectation did not change from 13 September 2005.[120]

(c) It is contended that the expectation could not be higher than the exercise of an unfettered discretion by a trustee in relation to the payment of income from the farm.[121]

81 In my opinion, these arguments are misconceived. Even though the promises may have varied from time to time, or were lacking in specificity as to the nature of the interest to be conferred, or extended on some occasions to the creation of trusts for the grandchildren, as well as the respondents, it is well established that proprietary estoppel may apply even though the promises lack sufficient certainty to be an enforceable contract, or even a loose arrangement.[122]

82 Given the representations held to have been made in April 2007, and in 2008, there is good reason for equity to intervene to ensure that justice is done, and the expectations induced by Christopher are fulfilled despite the fact that the representations were uncertain in some respects, or varied somewhat from occasion to occasion.

83 It is also apparent that the statements said to have been made in 2005, do not have any bearing on the expectations induced by representations made in April 2007 and 2008. It is the expectations induced as a consequence of the April 2007 and 2008 representations with which equity is concerned.

84 I agree with the conclusion of the trial judge that expectations were induced by the representations and that those expectations are sufficient to attract the operation of equity despite some uncertainty or lack of clarity.[123] The submissions put on behalf of the appellant, and the related grounds of appeal fail accordingly.

Whether in April 2007, January 2008 and subsequently in 2008 Christopher knew that that the respondents were contemplating bringing proceedings in respect of their father's Will

Grounds of Appeal 9, 29 and 30.[124]

85 The trial judge found that a period of estrangement between Christopher on the one hand and Kathryn and Louise on the other hand commenced after Louise sent the email dated 13 September 2005. Christopher stated that he withdrew from significant contact with Kathryn and Louise when in late 2005, Sue told him that they were contemplating bringing legal proceedings against their father's estate.[125] The estrangement occurred from the time Christopher became aware of the prospect of legal proceedings.

86 Sue also gave evidence that she had had conversations with Christopher in 2006, when she informed him that Kathryn and Louise were contemplating bringing legal proceedings.[126] The trial judge considered that it was quite feasible that when Sue told Christopher that Kathryn and Louise were contemplating legal proceedings, Christopher and Sue did discuss the disposition, which Christopher had made in his will in respect of his interest in the farm.[127]

87 Christopher said in his evidence that during the car trip to Rosebery with Paul Somerville he was wary of speaking to Paul about family financial matters, because, in the previous year, Sue had told him that Kathryn was contemplating legal proceedings against the estate.[128]

88 In the email from Christopher to Paul Somerville and Kathryn dated 9 September 2008, Christopher refers to 'a number of phone calls from Sue and Mum saying that Kate and Louise had sort [sic] legal advice and have started litigation proceedings involving Dads old estate ...'. The email proceeds to state that a family meeting would put him 'under distinct legal disadvantage. The fact that my sisters have started litigation and or been counseled [sic] legally prior to such a meeting would be unfair.'[129]

89 In response, Paul Somerville assured Christopher by email dated 9 September 2008 that whilst Kathryn had sought legal advice of a general nature last week to get an understanding of 'her legal rights', she had not 'started litigation proceedings [sic] in any shape or form'.[130] The email states that 'Kate and Louise still want to catch up to talk about the farm. Talk is good, litigation bad!'

90 As to the state of Christopher's knowledge of the prospect of legal proceedings, the trial judge found:[131]

At the time at which he made those promises, Christopher knew that the plaintiffs were contemplating bringing proceedings in respect of their father's will.

91 It is clear that Christopher at all times at least from 2005 was aware of the prospect of legal proceedings. This awareness was heightened by the fact that Andrew Harrison had in fact issued legal proceedings concerning the Hopefield farm in April 2007 resulting in Uncle Noel paying Andrew Harrison $1.3 million to resolve this dispute in May 2007.[132]

92 There is no substance in the submission on behalf of Christopher that the trial judge's findings about his knowledge of the prospect of legal proceedings were wrong. This submission and the related grounds of appeal must fail.

Whether the respondents relied upon the three representations as promises in April 2007, in January 2008, and subsequently during 2008 in deciding not to institute legal proceedings in respect of their father's estate until after 29 July 2008

Grounds of Appeal 8, 23, 24(c), 29 and 30.[133]

93 The trial judge found that Louise relied on the representations made in April 2007, January 2008 and subsequently in 2008 and as a result desisted from instituting proceedings in relation to Kenneth's estate:[134]

I am satisfied, on the evidence, that the promises, which I have found were made by Christopher in April 2007, in January 2008, and subsequently during 2008, did play a relevant role in inducing each of the plaintiffs, not to institute legal proceedings in respect of their father's estate until after 29 July 2008. Louise stated that, after her husband died, she accepted the promises made to her by Christopher in April 2007. Subsequently, her mind changed when Christopher began to withdraw from her. In 2008, Kathryn and she were considering taking legal action, but Sue continually reassured them that Christopher would stand by his word, and that they should trust him.

94 The trial judge also found that Kathryn relied on the representations:[135]

Similarly, Kathryn stated that she also relied on the promises made to her by Christopher. She did seek informal advice when she updated her will in June 2007. However, the advice which she obtained was cursory, and was no more than a 'kerbside' expression of opinion by the solicitor while she was leaving his office. She said, in cross-examination, that during 2007, she became doubtful that Christopher would honour his promise. However, her sisters, and in particular Sue, convinced her that Christopher would honour his promise, and accordingly she desisted from pursuing her legal rights at that stage. Subsequently, when she made preliminary telephone contact with a solicitor in 2008, she was dissuaded from proceeding further, by Sue, who told Kathryn that she had been talking to Christopher, and he had told her he would honour his promise to provide for his sisters.

95 As to Sue, the trial judge held:[136]

It is clear that, of the three sisters, it was Sue who had the most amount of confidence in the promises given to her by Christopher. When Louise and Kate lost contact with Christopher, in the latter part of 2007 and early 2008, Sue became the conduit between her sisters and Christopher. As I have found, during that time, he made to Sue promises that he would make provision for his sisters. As a result, she was convinced, and persuaded her sisters, that Christopher would honour his promises. It was only when Christopher made it plain that he would not do so, in October 2009, that she decided to seek legal redress in respect of her father's estate.

96 The trial judge accepted that the promises that Christopher made to his sisters played a material part in persuading them not to issue proceedings for relief in respect of their father's estate until after 29 July 2008 when the estate was finally distributed:[137]

Based on the foregoing evidence, which I accept, I am satisfied that the promises, which I have found Christopher made to his sisters, played a material role in persuading the plaintiffs not to issue proceedings, for relief in relation to their father's estate, before the estate was distributed on 29 July 2008. There may well have been other factors which, also, contributed to the decision by the plaintiffs not to embark on litigation in respect of their father's estate at that time. In particular, they would, naturally, have been reluctant to have taken a step, which would be likely to cause an irretrievable rift in the relationship with Christopher. However, it is clear that during that period Kathryn, and to a, perhaps, lesser extent, Louise, were both contemplating taking legal action in relation to their father's estate. They were dissuaded from doing so by a number of factors, but particularly by Sue's reassurance, which she had received from Christopher, that he would make provision for them out of the estate. It was only when it became clear to Sue, on 25 October 2009, that Christopher would not be making any such provision for her sisters or herself, that she realised that it was futile to rely on his assurances.

Accordingly, I am satisfied that the promises, which I found that Christopher made to the plaintiffs, were a relevant factor in inducing them not to commence legal proceedings, in respect of their father's estate, until after 29 July 2008, when the estate was finally distributed.

(a) The email of 13 September 2005 made it clear that Louise and Kathryn did not want the farm;[138]

(b) It was a rational hypothesis that the sisters did not want to commence legal proceedings because of the cost and risk of litigation;[139]

(c) Christopher was motivated when he made the promises in April 2007 by a sincere desire to assist his sisters in the aftermath of a family tragedy and did not seek to dissuade them from commencing legal proceedings;[140]

(d) It was in June 2007 that Kathryn sought legal advice because of her concern that there was a change in the promise;[141]

(e) In the case of Louise, the evidence did not establish that she was dissuaded;[142] and

(f) It was not reasonable for the respondents to be induced by the promises so as to refrain from commencing legal proceedings.[143]

98 In my view, the findings of the trial judge as to reliance were open to him and almost inevitably followed from his acceptance of the evidence of the respondents. Promises were made to them and to Paul Somerville in April 2007, and in January 2008. These promises were confirmed by Christopher to Sue during 2008. Sue communicated the statements made in January 2008 and during 2008 to Louise and Kathryn.

99 Louise said that she accepted the promises made to her by Christopher in April 2007. Her mind changed when Christopher failed to act on the promises. In 2008, Kathryn and Louise were considering taking legal action, but Sue continually reassured them that Christopher would stand by his word, and that they should trust him.

100 Kathryn also relied on the promises made to her by Christopher. When she updated her will in 2007, she obtained cursory or 'kerbside' advice from her solicitor. Again over time, Sue persuaded her that Christopher would honour his promises. In 2008, she was dissuaded from proceeding further by Sue, who had been in contact with Christopher.

101 Of the sisters, it was Sue who had the greatest level of confidence in the promises given by Christopher. She was one who persuaded her other sisters not to take legal action against their brother. It was only when Christopher made it plain that he would not do so in October 2009 that she lost confidence.

102 For these reasons, the submissions made on behalf of Christopher that there was no basis on which the trial judge could conclude that the respondents relied on the representations fail. The grounds of appeal relating to these submissions must also fail.

Whether the respondents suffered detriment as a consequence of the failure of Christopher to adhere to his promises

Grounds of Appeal 19, 24(a)-(c), 29, 30 and 31.[144]

103 In Grundt v Great Boulder Pty Proprietary Gold Mines Ltd,[145] Dixon J described the detriment that was necessary if an estoppel was to be enforceable:[146]

That other must have so acted or abstained from acting upon the footing of the state of affairs assumed that he would suffer a detriment if the opposite party were afterwards allowed to set up rights against him inconsistent with the assumption. In stating this essential condition, particularly where the estoppel flows from representation, it is often said simply that the party asserting the estoppel must have been induced to act to his detriment. Although substantially such a statement is correct and leads to no misunderstanding, it does not bring out clearly the basal purpose of the doctrine. That purpose is to avoid or prevent a detriment to the party asserting the estoppel by compelling the opposite party to adhere to the assumption upon which the former acted or abstained from acting. This means that the real detriment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumption were deserted that led to it. So long as the assumption is adhered to, the party who altered his situation upon the faith of it cannot complain. His complaint is that when afterwards the other party makes a different state of affairs the basis of an assertion of right against him then, if it is allowed, his own original change of position will operate as a detriment.

104 This concept of detriment is applicable to proprietary estoppel,[147] as well as other forms of estoppel.[148]

105 The trial judge comprehensively considered whether the respondents acted to their detriment in reliance on the representations which he found were made by Christopher, such as to entitle them to relief in equity under the principles of proprietary estoppel.[149]

106 During the trial, submissions were made by counsel for Christopher as to the nature of the relevant detriment. Whilst initially, it was submitted that the relevant detriment was the loss of opportunity by the respondents to make a claim for provision under Part IV of the Act - in final address, his position changed. Counsel for Christopher submitted, as did counsel for the respondents, that the appropriate characterisation of the detriment was the loss of the entitlement of the respondents.[150]

107 The trial judge was satisfied that as a result of the representations made in and after April 2007, the respondents were persuaded not to seek to institute any proceedings in respect of Kenneth's estate before it was finally distributed on 29 July 2008. If the respondents had sought to make a claim during that period, the trial judge found they would have been required to make an application for an extension of time under s 99 of the Act.[151]

108 The trial judge carefully considered and analysed whether the respondents would have been successful in obtaining an order extending the time within which to bring a claim under Part IV of the Act, if they had made such an application between April 2007 and July 2008.[152]

109 After considering the relevant factors which relate to an application for an extension of time under s 99 of the Act, the trial judge was persuaded that a court would have acceded to an application to extend time. The salient factors were:

(a) Each of the respondents had an arguable claim to relief under Part IV of the Act;[153]

(b) The factors relating to Christopher's livelihood, and to the primary asset of the farm, had significantly altered, in a manner which substantially undermined the rationale for the disposition made under Kenneth's will;[154] and

(c) No prejudice to Christopher had been demonstrated by reason of the delay despite the passage of close to three years.[155]

110 Following his conclusion that an extension of time would have been granted under s 99 for the making of an application under Part IV of the Act, the trial judge then undertook a detailed review of the respondents respective entitlements arriving at the conclusion that each of the respondents would have been successful although to varying degrees had they brought a claim under Part IV of the Act, if such a claim had been commenced by each of them between April 2007 and July 2008.[156]

111 Counsel for Christopher contend that the detriment must arise from an established failure of Christopher to do what the respondents alleged he promised to do, namely to settle a trust for the respondents into which he would in future transfer property and under which a trustee would pay the respondents income earned from time to time. It was submitted that it is not reasonable that the detriment was a loss of the entitlement to that which would have been granted under Part IV.[157]

112 I do not agree. The consequence of the failure to fulfil the promises and representations which were made to the respondents in and after April 2007, was that they did not take legal proceedings against the estate under Part IV of the Act. Had Christopher met the promises made in and around April 2007, the trial judge was satisfied that no proceedings against Kenneth's estate would have been undertaken by the respondents. It was the promises made by Christopher that persuaded the respondents not to seek to institute any proceedings in respect of Kenneth's estate before it was finally distributed.[158]

113 A second argument advanced on behalf of Christopher is that Christopher should have been able to assume given that six months had expired since the grant of probate that there would be no challenge to the will.[159]

114 This argument is also without foundation. The respondents had the opportunity of seeking an extension of time under s 99 for the making of an application under Part IV of the Act. There is no reason why they were disbarred under Part IV of the Act from making a claim albeit that they would each need an extension of time. There is no reason why the detriment sustained by the respondents should not have been their failure to seek an extension of time for and make a claim under Part IV which they did not pursue because of the promises and representations made to them on and after April 2007.

115 In Delaforce v Simpson-Cook,[160] Allsop P described the importance of keeping a party to a representation or encouragement previously made as all the stronger where the encouragement or representation has been relied on by a party to abandon a course of conduct that could possibly have led to a different outcome. In that case, a court case was abandoned, whilst in the present case proceedings which were in contemplation, and could have been undertaken were not undertaken. His Honour said:[161]

The importance of keeping a party to a representation or encouragement previously made is all the stronger where, as here, the encouragement or representation has been relied upon by a party to abandon a course of conduct that could possibly have led to a different outcome. This can be described in the language of loss of a chance that is not fanciful or unrealistic, or in the language of proceeding thereafter on the basis of a new or changed convention or conventional basis. Such expression of the matter is not different to how Dixon J put the matter in Grundt v Great Boulder Proprietary Gold Mines Ltd [1937] HCA 58; (1937) 59 CLR 641 at 674-675. For instance, if, as here, in reliance upon a representation or encouragement, a court case is abandoned and the representation or encouragement is later sought to be resiled from, the party to whom the representation or encouragement was made and in whom the expectation was raised is left in the position not only of the loss of the entitlement to pursue his or her rights in the case in the past, but also is likely to be in the position of being unable to demonstrate what would, or even may, have happened in the case, it being an alternative, complex and now hypothetical body of human conduct. That the party encouraged cannot show that he or she would have been better off in the posited alternative reality is not fatal to the making out of the estoppel. Indeed, the inability to prove such things reveals a central aspect of the detriment: being left, now, in that position. Of course, if it is self-evident or can be clearly demonstrated that the case was fanciful or otherwise doomed to fail, there may be no real detriment; but that was not the case here. The respondent gave up her right to propound her case in the Family Court on the faith of the deceased's representation. It was not self-evident, or otherwise clearly demonstrated, that she could not have been successful in securing her rights to the subject property after the death of the deceased.

116 The present case illustrates the position that arises when court proceedings which could have been commenced are not commenced because of a promise or representation. The parties who rely on the promise or representation are left in the position where their opportunity has been lost, and may find it very difficult to demonstrate what would or may, have happened had they had the opportunity to conduct their case, vindicate their position or claim their rights.

The relevance of Part IV of the Act

Grounds of Appeal 11-17 inclusive.[162]

117 In order to determine whether any of the respondents had suffered any detriment, the trial judge considered whether each respondent had a claim under Part IV of the Act. The trial judge found that each of the respondents would have had a claim under Part IV of the Act had she made an application to the Court between April 2007 and July 2008.

Section 91(1) of the Act provides that the court may order that provision be made out of the estate of a deceased person 'for the proper maintenance and support of a person for whom the deceased had responsibility to make provision'. Thus, the jurisdiction to make an order, under s 91, depends, first, upon the court being satisfied that the deceased had a responsibility to make provision for the plaintiffs from his estate, and, secondly, upon the court being satisfied that the will of the deceased does not make adequate provision for the proper maintenance and support of the plaintiff.

The 'responsibility' of a deceased, referred to in s 91(1), has been characterised as a moral, as distinct from a legal, duty. The question whether the deceased had such a duty to the plaintiff, and whether the deceased discharged that duty, is determined by reference to the perspective of a hypothetical wise and just testator. A classic statement of that test is in the judgment of the Privy Council in Bosch v Perpetual Trustee Co Limited:

Their Lordships agree that in every case the Court must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father.

119 Counsel for Christopher contend that the initial findings made by the trial judge as to the entitlement of the respondents under Part IV were in error.[164] Those findings were:[165]

In the next section of this judgment, I shall analyse the question of the entitlements of the plaintiffs to provision from their father's estate, if they had instituted an application, under s 99 of the Act, before the distribution of the estate on 29 July 2008. However, as shall become evident, I am satisfied that each of the plaintiffs would, at the least, have had an arguable claim for such relief. Certainly, any such claim could not be characterised as 'hopeless'. At the time of their father's death, Sue was a single mother with limited assets. Kathryn had three young children, two of whom were pre-school age. Her husband was earning a good income, and she herself was a trained teacher. They had a comfortable net asset position. However they were by no means wealthy. Paradoxically, the claim for provision of Louise, at the time of her father's death, would have probably been the weakest claim. She was then married, and her husband and her were each earning a good income. However, as my analysis in the next section shall disclose, her claim under Part IV, at that time, could not be described as hopeless.

The question whether, in 2007 to 2008, an application for extension of time on behalf of the plaintiffs would have succeeded, is not susceptible of a simple answer. However, weighing the factors, to which I have referred above, I am persuaded that a court would have acceded to such an application. In particular, in my view, the salient factors were, first, that each of the plaintiffs had an arguable claim to relief under Part IV of the Act. Secondly, as I have demonstrated, the factors relating to Christopher's livelihood, and to the primary asset of the farm, had significantly altered, in a manner which substantially undermined the rationale for the disposition made in Kenneth's will. Thirdly, it has not been demonstrated that there would be any prejudice to Christopher, if the application for extension of time had been allowed at that time. Although the delay by April 2007 would have been close to three years, and the plaintiffs would not have demonstrated any proper reason for failing to bring an application within time, or earlier, nevertheless I consider that the other factors, to which I have just adverted, would be sufficient to persuade a court to grant the applicants an extension of time in all the circumstances.

In that way, the nature and constitution of the estate of Kenneth is a particularly complicating factor in determining whether, at the time of his death, Kenneth did have a responsibility to make provision for the plaintiffs in his will. However, on balance, I am satisfied that, notwithstanding the difficulties to which I have just referred, Kenneth did have such a responsibility to his three daughters. At the time of his death, his estate was substantial. His obligation to leave a significant part of it to Christopher would not, I consider, have excluded entirely his co-existent obligation to make some provision for the three plaintiffs. While, ultimately, such provision could only consist of a limited interest by them in the Hopefield property, nevertheless I do not consider that that factor negated the responsibility, which he had, to make some provision for them, in order to provide each of them with some financial security against future vicissitudes and misfortune. Accordingly, I do consider that each of the three plaintiffs were persons, in respect of whom Kenneth Harrison had a responsibility to make provision for their proper maintenance and support, under s 91(1) of the Act.

As I have already noted, that question is to be determined by taking into account the circumstances of the plaintiffs, and the defendant, at the time of the hearing. Strictly speaking, in the context of the present case, the question would be answered by reference to the circumstances of the parties, at the time at which a trial of an application, commenced between 2007 and 2008, would have taken place. I would expect that, in the ordinary course, such a trial would have taken place in about 2009. However, there is no suggestion that the circumstances of any of the parties are materially different now to what they would have been over the last two to three years. That being so, it is appropriate that I answer the question by reference to the current circumstances of the parties.

120 Counsel for Christopher contend that the findings of the trial judge as to each of the respondents was also in error. Those findings were:[166]

Taking those matters into account, it is clear that Louise's current situation is the most needy of all the three plaintiffs. She has managed to accumulate a reasonable asset base. However, the loss of her husband, and the severe disability of her younger son, are such that I consider that the duty of a wise and just testator would be to make some further provision for her, in order to provide both herself, and, ultimately, Hamish, with a measure of security. Given the nature of the estate, such a provision would consist of Louise being granted a 15 percent interest, as tenant in common, in the share which Kenneth held in the Hopefield property and the attached water rights.

Sue has a larger income than Louise, but she has significantly less assets. Her children are healthy, but she has sole responsibility for them. The fact that she is not working full time is not, as Mr Shepherd submits, purely a matter of 'choice', but, rather, it is the product of the need for her to balance her responsibilities to her children with the need to earn a sufficient income to maintain herself and her children. In those circumstances, in my view, a court would order further provision for Sue, on a Part IV application, consisting of a 10 percent interest, as tenant in common, in the share of Kenneth's estate in the Hopefield property and the attached water rights.

The financial position of Kathryn is significantly healthier. Her husband is earning a good income, and Kathryn and her husband have a reasonably good asset base. Nevertheless, her children are young, and her husband does suffer from a congenital heart condition. In those circumstances, I would consider that a court, on a Part IV application made on behalf of Kathryn, would make an order, the effect of which would be that she would have a 5 percent interest, as tenant in common, in the share of Kenneth's estate in the Hopefield property and the water rights.

121 The principal arguments advanced on behalf of Christopher may be summarised:[167]

(a) The claim by each of the respondents should be characterised as 'hopeless' rather than being found to be arguable;[168]

(b) The grant of an extension of time created prejudice for Christopher;

(c) Because the respondents had accepted promises to be paid income that was to be honoured by a sale or division of the Hopefield farm, they should be taken as being precluded from an application to extend time even though the promises were not honoured; and

(d) A court would not have ordered further provision for the respondents on a Part IV application.

122 Each of these arguments was put to the trial judge, and rejected by him. The claims by each of the respondents were not hopeless, but substantive for the reasons extensively given by the trial judge. Each of the claims is carefully assessed in the judgment.[169] The grant of an extension of time did not create prejudice for Christopher. He had made promises and representations to each of the respondents which had the effect of delaying any claims that they might have brought against the estate. Claims were not brought against the estate because the respondents acted on the basis that the promises and representations made to them by Christopher would be fulfilled. Under s 91(4)(h) of the Act, the financial resources and needs of an applicant under Part IV are assessed at the date of the hearing. The respondents are not, and should not be, precluded from making an application to extend time because they acted on the basis of promises and representations which were later not honoured or fulfilled. The trial judge thoroughly considered the circumstances of Kenneth's estate, the effect of the provisions of his will, and the moral claims of each of the respondents. I do not see any reason to differ from his assessment, not least given that he had the advantage of hearing evidence from the parties and other witnesses during a lengthy trial.

Whether Christopher on 25 October 2009 resiled from the promises and in this regard whether the promises were subject to a condition that equity did not require performance before the date when Hopefield farm was sold or divided

Grounds of Appeal 18, 25, 26, 27(a)-(b), 29 and 30.[170]

123 On 25 October 2009, Christopher and Sue had a conversation that was an endpoint in their relationship. Christopher made it clear to Sue that he would not be making any provision for his sisters from their father's estate. At this point, Sue decided to join her sisters in claiming against Christopher.

124 Sue's evidence as to the conversation of 25 October 2009 was summarised by the trial judge:[171]

Sue said that she only changed her mind about that matter on 25 October 2009. On the previous day, her sisters had spoken to her, and they had stated that they did not consider that Christopher would fulfil his promise. Sue asked her sisters to give her another opportunity to talk to Christopher, because she still trusted him. On the next day, Sue visited Christopher's home in company with her mother. Christopher and Kirsty had friends visiting them at the time. Sue and her mother spoke to Christopher. Sue told him that their sisters were seeking legal advice, and she asked if he would be prepared to put 50 percent of their father's estate into their mother's name, so that it would be protected. Christopher responded by becoming very angry. He said that he would prefer to take the matter through the courts, and spend every last cent of the estate on litigation, rather than give his sisters anything. He also said that he would use every 'bit of dirt' he had on Sue and her sisters. Sue then went inside and spoke to Kirsty, who responded by saying that she (Sue) just needed to focus on the outcome which she wanted.

Sue and her mother then left Christopher's place. After she had dropped her mother at her home, Christopher telephoned her on her mobile telephone. He told Sue that she did not understand, because the issue was very complicated, and that he might need to buy a farm for himself.

Sue was cross-examined extensively concerning the final meeting which she had with Christopher on 25 October 2009. She denied that she stated to Christopher that her mother was making a claim against the estate. Rather, she tried to persuade him to put 50 percent of the interest in the farm in their mother's name, in order to protect their mother, and to protect the share of her sisters and herself. It was at that stage that Christopher stated that he would prefer to take the matter through the legal courts than to give his sisters any money. She said that she was very distressed by her brother's attitude, and that she was in tears when she left his house with her mother. She stated that she had asked Christopher to put the interest in the farm in their mother's name so that, if anything happened to him, her mother, her sisters and she would be looked after, and their interests would not be susceptible to a claim by Christopher's children. She said that that was not the first occasion upon which she had raised that possibility with Christopher. Hitherto, he had stated that such a proposition was untenable.

125 Christopher's version of these conversations differed in a number of respects:[172]

Christopher gave evidence concerning the occasion, upon which Sue and his mother attended at his home at Durham Ox in November 2009. On that occasion, Christopher and Kirsty had friends staying with them. Sue telephoned him, and requested that he meet with her. Christopher agreed to that request, because Sue sounded agitated on the telephone. When Sue arrived, she and her mother met Christopher on the back veranda. Susan stated that her sisters were going to take Christopher to court. She said 'I think we can stop them if you transfer 40 percent of the farm into mum's name'. She stated that such a step was necessary, in order to protect the farm against Christopher's ex-wife, Jacqueline. Christopher responded by asking Susan to leave, which she did. He denied saying to Sue that he would prefer to spend all the money on legal costs, rather than let them have a cent of it. Christopher denied that Sue went inside and spoke to Kirsty at that time. He also denied telephoning Sue after she had left, and telling her that he might want to purchase another farm for himself.

Christopher was also cross-examined about the occasion, upon which Sue and his mother attended at his home in Durham Ox in November 2009. He denied that, when Sue asked him to consider putting a percentage of the farm into his mother's name, he replied by saying that his sisters were being greedy, and that he would rather that the matter proceed through the courts and spend every last cent on legal costs, than give his sisters anything. He also denied saying that he would use 'every bit of dirt' which he had on his sisters. He reiterated that, when his sister Sue spoke to him, he asked her to leave. Sue remained outside, and Kirsty spoke to her there. Christopher also denied that Sue said to him that she was going to join her sisters, if he did not negotiate by putting some of the property into their mother's name. Christopher stated that he had the impression that Kathryn and Louise were contemplating legal proceedings against him, and not Sue. He also reiterated his denial that he had telephoned Sue after she left, and told her that he might need to buy a farm.

126 The trial judge made findings as to the conversations on 25 October 2009:[173]

There were some differences in the evidence of Christopher and Sue relating to the last conversation which they had on 25 October 2009. Mr Waddell, counsel for the plaintiffs, did not seek to rely on any aspect of Sue's evidence as constituting an implied admission by Christopher of any antecedent promises made by him. It is not necessary for me, therefore, to resolve the differences between Christopher and Sue relating to that conversation. If it were necessary for me to do so, I would be satisfied that, after Sue left Christopher's house, he made telephone contact with her, and told her that the situation was complicated because he might need to buy a farm for himself. However, Mr Waddell did not seek to make any point from that aspect of the meeting.

The relevance of the conversation of 25 October 2009 is that it constituted an end point for Sue. Up to that stage, she had hoped that Christopher would adhere to the promises, which he had made to her, and to which I have just referred. On that day, he made it plain to her that, contrary to his previous assurances, he would not be making any provision for his sisters from their father's estate. As a result, Sue resolved to join her sisters in making a claim against Christopher.

127 In these conversations, the trial judge concluded that, in these conversations, Christopher resiled from his promises and representations made in April 2007 and 2008:[174]

Secondly, on 25 October 2009 Christopher made it plain to Sue that he would not be making any provision for her, or her sisters, from the farm. I am satisfied that, when he spoke to Sue, he well understood that she would relate, what he told her, to Kathryn and Louise. In that conversation, Christopher made it plain that he would not, in any circumstances, be providing for his sisters from his interest in the farm. Subsequently, he continued to deny that he made the promises, which are the foundation of the plaintiffs' claim in this case. In those circumstances, the defendant has unequivocally evinced an intention not to adhere to the promises which he made to his sisters, and on the basis of which they desisted from seeking relief under Part IV of the Act, before the final distribution of the estate. Accordingly, the plaintiffs are not precluded from seeking relief under proprietary estoppel, on the basis that the promises made to them by Christopher were subject to conditions, which have not yet been fulfilled.

128 The submissions made on behalf of Christopher concerning these findings were in substance:[175]

(a) If promises were made, Christopher had not resiled from them as at 25 October 2009.

(b) The plaintiffs through Sue made a counteroffer that Christopher transfer property to them through Jillian.

(c) Sue's conduct was consistent with a willingness to further negotiate rather than insist on past promises.

(d) The respondents were required to do equity and not put a counteroffer. Christopher was entitled to robustly reject any counteroffer.

(e) The statements Christopher made to Kathryn and Sue in Hobart, and the statements which he made to Sue at the property at Sullivans Road, Strathfieldsaye were expressed subject to the condition precedent that the Hopefield farm be sold or subdivided.

129 I do not accept these submissions. First, in his conversation with Sue on 25 October 2009, Christopher made it clear that he would not be making any provision for his sisters, that he would prefer to take the matter through the courts, and spend every last cent of the estate on litigation, rather than give his sisters anything. By what he said in the conversation with Sue on 25 October 2009, he resiled from his earlier promises and representations made in 2007 and 2008.

130 Secondly, whilst Sue advised that the sisters were seeking legal advice, and asked if Christopher would be prepared to put 50 per cent of their father's estate into their mother's name so that it would be protected, this did not constitute a counteroffer nor did it mean that Sue or her sisters were in any way departing from their acceptance of the promises and representations that had earlier been given. Rather, at this time, Sue still trusted Christopher, and was looking for his fulfilment of his earlier promises and representations. It was only when her approach on behalf of herself and her sisters was rejected in the forthright and uncompromising terms that it was that she realised that Christopher had no intention of meeting his earlier promises and representations. What Christopher said constituted a refusal to perform his earlier promises and representations in the strongest and bluntest terms.

131 Thirdly, contrary to the submission made on behalf of Christopher, he had made promises and representations to his sisters and to Paul Somerville with the result that the sisters had refrained from bringing proceedings in the court concerning their father's estate. He was not at liberty to reject their approach for him to fulfil his promises as was suggested by Sue. He was not entitled to dismiss their approach to him for him to put into effect his past promises and representations.

132 Finally, what Christopher said to Sue showed a clear intention not to be bound by his earlier promises and representations. His summary dismissal of Sue's approach and proposal showed that he did not intend to transfer any share of Hopefield to them, whether or not this was to be achieved by the sale or subdivision of the property. There was no qualification on his part, or expressed intent to divide and transfer part of the property, or to sell Hopefield, and hold shares in the assets for them. Rather, his statements and intent were clear - the sisters were not to receive any interest in Hopefield, or share in the proceeds of sale at all.

133 In my view, the findings of the trial judge as to the conversation of 25 October 2009 and later telephone conversation that day were clearly correct.

Whether the promises, and the expectations engendered by them, were of a proprietary nature, which brought this case within the principles of the doctrine of proprietary estoppel

134 The trial judge held that the representations made by Christopher to each of the respondents between April 2007 and July 2008 were to the effect that he would make provision for them (and their children) from that part of the estate of Kenneth Harrison which was bequeathed to him, namely Kenneth's interest in Hopefield and its associated water rights. As a result of those promises, the respondents each expected that they would obtain an interest in that property. The promises made, and the expectations engendered by them were of a proprietary nature, which brought the case within the principles of the doctrine of proprietary estoppel.[177]

135 On behalf of Christopher, it is submitted that the representations were made before Christopher had a personal proprietary interest in the land and water. It was not until 29 July 2008, when he made a transfer in his representative capacity as executor and thereby transferred the land to himself personally, that he held a proprietary interest in the land and water. Before that date, Christopher held the estate of the deceased in a representative capacity and not personally, and it was his duty to uphold the will in his capacity as executor.[178]

136 Whilst Kenneth's estate was undistributed as at April 2007 and remained undistributed as to Christopher's share until 29 July 2008, Christopher's entitlement to Kenneth's interest in Hopefield and associated water rights was undoubted under the provisions of Kenneth's will. The extent of Kenneth's interest in Hopefield and the water rights was identified and defined, and there was no suggestion that the debts or other liabilities of the estate were of any significance apart from the mortgage of the Hopefield farm to the National Australia Bank Limited and certainly not of such magnitude as it might affect Christopher's expectation that he would receive the whole of Kenneth's interest in Hopefield and water rights. In addition, Christopher held the estate of the deceased in a representative capacity and its distribution to himself beneficial was under his control as executor. Although Hopefield was yet to be distributed by Christopher, as the executor, to himself as the beneficiary entitled to Hopefied under Kenneth's will, he had effective control over the distribution of Hopefield and its water rights.[179]

137 Christopher was the executor of Kenneth's estate. He alone was entitled under Kenneth's interest in Hopefield and associated rights. He had inherited his father's interests in Hopefield. From the time that they became aware of the contents of Kenneth's will, all family members were well aware of the position. There is no reason why equity in the form of proprietary estoppel should not apply to the promises and representations found to have been made by Christopher to his sisters.

The relief to be granted; the measure of equity requisite to address and vindicate the alleged unconscionable departure

Grounds of Appeal 28(a)-(c).[180]

138 Cases of proprietary estoppel differ from equitable estoppel in that the remedy in cases of proprietary estoppel is founded in the understanding of the parties and the expectation that has been encouraged.[181] By contrast, equitable estoppel is concerned with what needs to be done in order to avoid detriment to the party who has relied on the assumption induced by the party estoppped.[182]

139 In Donis v Donis, Nettle JA stated:[183]

Each of the appellants' arguments is to some extent premised on the idea that equitable estoppel 'permits a court to do what is required in order to avoid detriment to the party who has relied on the assumption induced by the party estopped, but no more'. That idea finds support in some of the judgments in Waltons Stores (Interstate) Ltd v Maher and Commonwealth v Verwayen and in particular in the observations of Mason CJ in Verwayen that:

...equitable estoppel will permit a court to do what is required in order to avoid detriment to the party who has relied on the assumption induced by the party estopped, but no more.

As the more recent decision in Giumelli v Giumelli shows, however, there is no such restriction in cases where the expectation which is encouraged is the acquisition of an interest in property. In such cases the remedy relates to the understanding of the parties and the expectation that has been encouraged. Prima facie the estopped party can only fulfil his or her equitable obligation by making good the expectation which he or she has encouraged. The estopped party, having promised to confer a proprietary interest on the party entitled to the benefit of the estoppel, and the latter having acted upon the promise to his or her detriment, is bound in conscience to make good the expectation. It follows that the detrimental reliance that supports the estoppel need not constitute in any sense a consideration moving to the party bound. It is a unilateral element of the estoppel and not the price paid for it.

The prima facie position will yield to individual circumstances. Principle and authority compel the view that where a plaintiff's expectation or assumption is uncertain or extravagant or out of all proportion to the detriment which the plaintiff has suffered, the court should recognise that the claimant's equity may be better satisfied in another and possibly more limited way. Thus, as was also said in Giumelli v Giumelli, before granting relief the court is required to consider all of the circumstances of the case, including the possible effects on third parties, and to avoid going beyond what is required for conscientious conduct or would do injustice to others. But that does not mean that the court is required to be 'constitutionally parsimonious' or that it is necessary for there to be substantial correspondence between expectation and the monetary value of the detriment suffered, or which but for the relief to be accorded would be suffered. The object of the exercise is to do equity and for that purpose 'detriment' is no narrow or technical concept. It need not consist of expenditure of money or other quantifiable financial disadvantage so long as it is something substantial. The requirement must be approached as part of a broad inquiry as to whether departure from a promise would be unconscionable in all the circumstances.

140 The principles which govern the grant of relief in a proprietary estoppel by encouragement case were set out by Handley AJA in Delaforce v Simpson-Cook:[184]

A proprietary estoppel by encouragement may be established where the conduct of the party estopped did not define the expectation: Plimmer v The Mayor, Councillors and Citizens of the City of Wellington (1884) LR 9 App Cas 699 at 713; Flinn (at 738-739, 742 and 743); Gillett (at 226 per Robert Walker LJ). '[T]he quality of the assurances which give rise to the claimant's expectations' is an important factor: Jennings v Rice [2003] EWCA Civ 159; 1 P & CR 100 at 112 and 114 per Robert Walker LJ repeating what he said in Gillett (at 225): 'the quality of the relevant assurances may influence the issue of reliance [and] reliance and detriment are often intertwined', which was approved by the Privy Council in Henry v Henry [2010] UKPC 3; 1 All ER 988 at 995 and 1000.

Relief depends very much on the facts and, as the Privy Council said in Plimmer (at 714), 'the Court must look at the circumstances in each case to decide in what way the equity can be satisfied.'

This statement has frequently been approved: Chalmers v Pardoe [1963] 1 WLR 677 at 682; Crabb v Arun DC [1976] Ch 179 at 188 and 193; Giumelli (at 113 and 125). The Court does not exercise an unfettered discretion but adopts a principled approach: Giumelli (at 123-124 and 125); Gillett (at 225) and Jennings (at 112).

It has been said that the Court should frame the relief to enforce 'the minimum equity to do justice to the plaintiff': Crabb (at 198 per Scarman LJ). This principle has frequently been applied in England: Yaxley v Gotts [2000] Ch 162 at 175; Gillett (at 235 and 237); and Jennings (at 110, 113); however, as Robert Walker LJ said there it 'does not require the Court to be constitutionally parsimonious, but ... recognise[s] that [it] must also do justice to the defendant'. The minimum equity principle was applied in The Commonwealth v Verwayen per Deane J (at 441) and per Brennan J (at 429 and 430), but since Giumelli is probably not the law in this country. It was only mentioned once, and then only in passing in the speeches in Thorner v Major [2009] UKHL 18; 1 WLR 776. This was to the statement of issues in the Court of Appeal (at 792).

Relief may be moulded to recognise practical considerations such as the need for a clean break: Pascoe v Turner [1978] EWCA Civ 2; [1979] 1 WLR 431 at 438-439; Giumelli (at 113-114 and 125); Gillett (at 237); Jennings (at 115). The Court must also take into account the impact of its orders on third parties and any hardship or injustice they would suffer: Giumelli (at 113-114 and 125); Flinn (at 749 and 750).

Relief may be refused or reduced if the plaintiff's equity has been diminished by later events. In Sledmore v Dalby [1996] EWCA Civ 1305; 72 P & CR 196 the Court held that the plaintiff's equity based on his improvements had been fully amortized over 18 years of rent free occupation. Subsequent events may also enlarge the plaintiff's equity as in Crabb (at 189 and 199) where the defendant's repudiation of the expectation had landlocked the plaintiff's land for five years.

Relief may also be limited where the enforcement of the plaintiff's expectation would be out of all proportion to the detriment: Jennings (at 104, 111 and 115). This is particularly so where the expectation was not defined and the Court has a broader discretion (at 114). A gardener had looked after an elderly widow and been promised that 'he would be alright' and 'this will all be yours one day'. He was awarded £200,000, and the Court of Appeal rejected his claim to the house and contents worth £435,000.

The Court should, prima facie, enforce a reasonable expectation which the party bound created or encouraged: R Meagher, J Heydon and M Leeming, Meagher, Gummow and Lehane's Equity: Doctrine and Remedies 4th ed (2002) Sydney; Butterworth LexisNexis at 567-568. In Ramsden v Dyson (1866) LR 1 HL 129 at 170 Lord Kingsdown said: 'If a man ... under an expectation created or encouraged by the landlord that he shall have a certain interest [acts to his detriment] upon the faith of such promise or expectation ... a Court of equity will compel the landlord to give effect to such ... expectation' (Lord Kingsdown's principle). In Chalmers (at 681-682), the Privy Council said that if such an estoppel is established 'a court of equity will prima facie require the owner ... to fulfil his obligation'. In Attorney General of Hong Kong v Humphreys Estate (Queen's Gardens) Ltd [1987] AC 114 at 121 Lord Templeman said:

The authorities expound and illustrate the principle upon which a litigant who is led to believe that he will be granted an interest in land and who acts to his detriment in that belief is enabled to obtain that interest.

In Giumelli, the joint judgment (at 123) quoted with approval this statement of Deane J in The Commonwealth v Verwayen (at 443):

Prima facie, the operation of an estoppel by conduct is to preclude departure from the assumed state of affairs. It is only where relief framed on the basis of that assumed state of affairs would be inequitably harsh, that some lesser form of relief should be awarded.

The prima facie entitlement to which his Honour had referred would be qualified if that relief 'would exceed what could be justified by the requirements of conscientious conduct and would be unjust to the estopped party'.

In Sledmore (at 203), Roch LJ, delivering the principal judgment, approved the statement in P V Baker, P St J Langan (eds) Snell's Equity 29th ed (1990) London, Sweet & Maxwell at 573 derived from Griffiths v Williams (1978) 248 EG 947 at 949 per Reginald Goff LJ, and In re Basham [1986] 1 WLR 1498 at 1510 per Nugee QC:

The extent of the equity is to have made good, so far as may fairly be done between the parties, the expectations of A which O has encouraged.

Sledmore was followed in Mobil Oil Australia Ltd v Wellcome International Pty Ltd (1998) 81 FCR 475 at 517-518.

... there is a category of case in which the benefactor and the claimant have reached a mutual understanding which is in reasonably clear terms but does not amount to a contract. ... In such a case the court's natural response is to fulfil the claimant's expectations. But if a claimant's expectations are uncertain, or extravagant, or out of all proportion to the detriment which the claimant has suffered, the court can and should recognise that the claimant's equity should be satisfied in another (and generally more limited) way (emphasis supplied).

141 A number of the principles set out in Donis v Donis,[185] and in Delaforce v Simpson-Cook,[186] have application in the circumstances of the present case. They are:

(a) A proprietary estoppel may be established where the conduct of the party estopped did not define the expectation;

(b) The quality of the assurances which give rise to the claimant's expectations is an important factor and may influence the issue of reliance which is often intertwined with detriment;

(c) The court must look at the circumstances in each case to decide in what way the equity can be satisfied;

(d) There is no requirement that the court frame the relief to enforce the minimum equity to do justice to the plaintiff - rather prima facie the estopped party can only fulfil his or her equitable obligation by making good the expectation that he or she has encouraged;

(e) Where the plaintiff's expectation or assumption is uncertain or extravagant or out of all proportion to the detriment which the plaintiff has suffered, the court should recognise that the plaintiff's equity may be better satisfied in another and possibly more limited way;

(f) Relief may be moulded to meet practical considerations, and take into account the impact of its orders on third parties and any hardship or injustice they may suffer;

(g) Relief may be limited if the plaintiff's expectation would be out of all proportion to the detriment; and

(h) The court should prime facie enforce a reasonable expectation which the party bound created or encouraged.

142 The promises and representations made by Christopher to the respondents between April 2007 and July 2008 were to the effect that he would make provision for them (and their children) from that part of the estate of Kenneth Harrison which was bequeathed to him, namely Kenneth's interest in Hopefield and its associated water rights. As a result, each of the respondents expected that they would obtain a share of, or an interest in, that property.[187]

143 The trial judge considered, by reference to authority,[188] the submission of counsel for Christopher to the effect that the promises made by Christopher were so devoid of specificity, as to be an insufficient basis for a claim based on proprietary estoppel.[189]

144 In referring to Ramsden v Dyson,[190] and Flinn v Flinn,[191] his Honour said:[192]

It is now well established that a promise may form an appropriate basis for a claim in proprietary estoppel, notwithstanding that it lacks sufficient certainty or specificity to satisfy the requirements of an enforceable contract at law. Indeed, in the passage from the speech of Lord Kingsdown in Ramsden v Dyson, which I have quoted above, his Lordship specifically observed that, while a promise may be insufficiently clear at law to be the foundation of an enforceable contract, nonetheless, if it is acted on by the promisee to his or her detriment, equity will enforce it.

That principle has been applied by the courts in a number of cases. In Flinn v Flinn, Brooking JA, having examined the authorities, relating to this aspect of proprietary estoppel, in some detail, concluded:

As the review of the authorities over the last two hundred years shows, uncertainty preventing the creation of a contract has never been regarded as necessarily preventing the beneficial intervention of equity. Time and again an equity has been held to exist when no contract had arisen, the court often going a long way to giving effect to what the law of contract would ignore as an impossibly loose arrangement.

In that case, the plaintiff relied on two sets of promises, made, in 1988, and subsequently in 1993, to him and his wife by the defendants, who were his uncle and aunt. The first set of promises, in 1988, were to the effect that, if the plaintiff and his wife moved to and worked on the defendants' farm, the defendants would, by their wills, make a gift to the plaintiffs of an interest in the farm property. Brooking JA held that, notwithstanding that the promise made by the defendants, in 1988, was of an unspecified interest in the farm, it was not too uncertain to found a proprietary estoppel.

145 In referring to the decision of the Court of Appeal in Accurate Financial Consultants Pty Ltd & Anor v Koko Black Pty Ltd & Ors,[193] he then said:[194]

In that case, the plaintiffs were minority unit holders in a unit trust, which had been formed to operate a business involved in the manufacture and sale of high quality specialty chocolates throughout Victoria. The plaintiffs sought an injunction to restrain the majority unit holder, and founder of the business, from acting on notices for the compulsory redemption of the units. The trial judge had found that the plaintiffs had invested in the business, and became unit holders in the unit trust, on the basis of an assumption or expectation that they would be entitled to remain as unit holders 'for the long term'. His Honour also held that that assumption or expectation had been induced by representations made to the unit holders by the majority unit holder, on behalf of the trustee. However, his Honour dismissed the plaintiff's claim for a permanent injunction. In doing so, he relied on a statement of Lord Denning MR in Woodhouse AC Israel Koko Ltd v Nigerian Produce Marketing Co Ltd, that estoppel should not be based on an ambiguity, and that '... to work an estoppel, the representation must be clear and unequivocal'.

The Court of Appeal allowed the appeal of the plaintiff. Dodds-Streeton JA (with whom Ashley JA and J Forrest AJA agreed) considered, in some detail, a number of authorities, which counsel had not brought to the attention of the trial judge. Her Honour stated:

'134 ... from an early stage, a representation in estoppel was to be assessed by how it would be reasonably understood by the addressee in the context of the surrounding circumstances.

135 Equity does not shrink from ascribing meaning to a representation and mere imprecision or loose definition will not preclude a remedy for unconscionability, at which proprietary estoppel is ultimately directed.

136 The relevant authorities exemplify a wide variety of apparently vague, imprecise and incomplete representations which have been construed in context and given effect.'

Later, having reviewed the authorities at length, Dodds-Streeton JA further stated:

'177 An analysis of the relevant authorities, which were not cited to his Honour, demonstrates that the statement of Lord Denning MR, on which the trial judge particularly relied, arose from a relatively narrow comparative context and is, in isolation, a potentially misleading articulation of equity's characteristically liberal approach to the construction of representations when it is necessary to prevent unconscionable conduct.

178 A representation which is insufficiently certain or complete to create a contract may found proprietary estoppel. Where necessary to inhibit unconscionability, equity will construe a representation robustly in context, to determine its meaning as reasonably understood by the addressee. In my opinion, the standard of certainty, clarity and completeness required of the representation cannot sensibly be determined in isolation from other elements of proprietary estoppel in the circumstances of each particular case. Moreover, ambiguity and indeterminacy generated by the representor in the context of unconscionable conduct should not confer immunity from equity's "long arm".'

In a similar vein, Handley AJA, in Delaforce v Simpson-Cook observed that a proprietary estoppel by encouragement may be established '... where the conduct of the party estopped did not define the expectation'. His Honour noted that the quality of the relevant assurances may, however, be relevant to the assessment of the issue of reliance and also to the issue of detriment.

147 The trial judge then referred to the English authorities:[196]

In Jennings v Rice & Ors, the plaintiff, over a number of years, had provided gratuitous assistance to Mrs Royle, an elderly widow, who died without children and wholly intestate. Over those years, as found by the trial judge, Mrs Royle made a number of remarks to the plaintiff to the effect that he would receive all, or part of, Mrs Royle's property on her death. The trial judge rejected the plaintiff's claims under the Inheritance Act 1975 and in contract, but found for the plaintiff under the doctrine of proprietary estoppel. The judge ordered the estate of Mrs Royle to pay £200,000 to the plaintiff, apparently as a sum which was equivalent to the cost of full time nursing care for Mrs Royle. The judge considered that the 'quality' of the assurance, given by Mrs Royle, affected not only the questions of the plaintiff's belief, but also questions of reliance, detriment and unconscionability.

The plaintiff appealed from that decision, contending that, on the basis of the findings of the trial judge, he should have been awarded the whole of Mrs Royle's estate, or alternatively a sum equal to its value. The respondent did not contend, on the appeal, that the judge was wrong to conclude that the plaintiff was entitled to an award of £200,000 pursuant to the doctrine of proprietary estoppel. The Court of Appeal dismissed the plaintiff's appeal. Robert Walker LJ, (with whom Mantell LJ agreed) stated the applicable principles as follows:

'46. ... (as the judge's findings in this case vividly illustrate) the claimant's expectations may have been formed on the basis of vague and inconsistent assurances. The judge said of Mrs Royle that she

"... was prone to saying different things at different times and, perhaps deliberately, couched her promises in non-specific terms".

47. If the claimant's expectations are uncertain (as will be the case with many honest claimants) then their specific vindication cannot be the appropriate test. A similar problem arises if the court, although satisfied that the claimant has a genuine claim, is not satisfied that the high level of the claimant's expectations is fairly derived from his deceased patron's assurances, which may have justified only a lower level of expectation. In such cases the court may still take the claimant's expectations (or the upper end of any range of expectations) as a starting point, but unless constrained by authority I would regard it as no more than a starting point.

49. It is no coincidence that ... statement(s) of principle [in the authorities] refer to satisfying the equity (rather than satisfying, or vindicating, the claimant's expectations). The equity arises not from the claimant's expectations alone, but from the combination of expectations, detrimental reliance, and the unconscionableness of allowing the benefactor (or the deceased benefactor's estate) to go back on the assurances. ... So with proprietary estoppel the defendant is charged with satisfying the equity which has arisen from the whole sequence of events.'

148 Finally, he referred to the decision of the Court of Appeal and House of Lords in Thorner v Major & Ors,[197] and noted:[198]

[T]he claimant had worked full time on the farm of his father's cousin for little financial reward. He sought a declaration against the defendants, who were the personal representatives of the deceased cousin, that they held his estate on trust for the claimant. The claimant's case was based on proprietary estoppel. The claimant was not able to point to any express promise, made by the cousin, that he would be entitled to the cousin's property on his decease. However, the trial judge noted that the cousin was a taciturn man, who was not given to talking in a direct manner. In a number of interchanges with the claimant, he had induced the claimant to understand that, on his death, the claimant would be entitled to his property. Accordingly, the trial judge upheld the claimant's case on the basis of proprietary estoppel. The Court of Appeal allowed the defendant's appeal, on the grounds that the cousin's statements did not amount to a sufficiently clear and unequivocal representation by the cousin, upon which he had intended the claimant to rely. On further appeal, the House of Lords upheld the appeal of the claimant, and restored the decision of the trial judge. In doing so, the members of the House of Lords emphasised the importance of construing the assurances or promises, relied upon, in the context in which they were made. Lord Neuberger stated:

... it would be quite wrong to be unrealistically rigorous when applying the 'clear and unambiguous' test. The court should not search for ambiguity or uncertainty, but should assess the question of clarity and certainty practically and sensibly as well as contextually. ... At least normally, it is sufficient for the person invoking the estoppel to establish that he reasonably understood the statement or action to be an assurance on which he could rely.

149 The trial judge applied the authorities to the circumstances of the case:[199]

Thus, it is clear from the authorities that, in order to constitute the basis of a proprietary estoppel, a promise, and the expectations resulting from it, may fall substantially short of the precision which is required to constitute the basis of an enforceable contract at law. Rather, the question of the uncertainty or ambiguity of a promise is relevant to issues relating to reliance, the reasonableness of reliance, the nature of the expectations of the promisee, the awareness of the promissor of the reliance of the promisee, and the nature of the detriment sustained by the promisee, if the promise is not adhered to. At each of those levels, the terms in which the promise was expressed, and the specificity with which it was defined, may bear on the question whether, in all the circumstances, it would be unconscionable for the defendant not to adhere to the promise found by the court.

I therefore reject the submission, made by Mr Shepherd on behalf of the defendant, that the promises made by the defendant lack sufficient 'quality' for the purposes of proprietary estoppel.

150 As a result, he determined the relief to be granted to the respondents based on enforcement of the expectation arising from the promises and representations:[200]

The plaintiffs do not seek, by way of relief, enforcement of the promises given to them by the defendant, or the expectation created by them. As I have already observed, in cases of proprietary estoppel, the prima facie position is that the court, ordinarily, enforces the expectation arising from the relevant promises or representations. In each case, the relief is primarily designed to redress the effect of the unconscionable conduct of the defendant in departing from the promises on which the plaintiff has relied. In most cases of proprietary estoppel, that redress is most effectively provided by enforcement of the promise and the expectation arising from it. However, it is clear from the authorities that the prima facie approach, of enforcing the expectation, is not an inflexible rule. In particular, as Robert Walker LJ pointed out in the passage from his judgment in Jennings v Rice, which I have set out above, enforcement of the expectation may not be appropriate, where the expectation is uncertain or imprecise.

In the present case, the relief, which is sought by the plaintiffs, is the provision which, I am satisfied, would have been made in their favour, if they had made an application for relief under Part IV of the Act. That relief is, on the findings which I have made, relief which would entitle each of them to a proportionate part of the interest held by the defendant in the Hopefield farm and the associated water rights.

It is, perhaps, no coincidence that the relief, which they would have obtained under Part IV of the Act, would not be inconsistent with the type of provision which Christopher was, in a broad sense, promising to make for the plaintiffs out of Kenneth's estate. Ultimately, the gravamen of Christopher's promises was that he would make proper provision for his sisters, out of the estate of his father. As I have already noted, the substance of the promise must be understood in the context of a family setting, in which the parties had some appreciation of their father's interest in Hopefield, of Christopher's contribution to it, and of the respective financial means and needs of the plaintiffs and Christopher. In the absence of specification by Christopher of the amount of provision, promised by him to the plaintiffs, it might be inferred that he had intended, and had conveyed to the plaintiffs, that he would make reasonable provision for them from their father's estate taking into account their respective circumstances. In that way, the measure of provision, to which the plaintiffs would have been entitled under s 91(1) of the Act, is by no means inconsistent with the type of provision, which, it was envisaged, would have been made in favour of the plaintiffs, if Christopher had adhered to his promises.

151 He was satisfied as to proportionality, and as to the appropriateness of the relief that he proposed to grant:[201]

Thus, I am satisfied that the nature of the relief, sought by the plaintiffs in this case, would not be unfairly disproportionate to that which the plaintiffs would have obtained, if Christopher had adhered to the promises which he made to them between April 2007 and July 2008. An advantage of defining the relief in terms of the detriment sustained by the plaintiffs is that, in that way, the court has an appropriate framework within which to formulate the relief. Furthermore, the type of provision, which is made under s 91 of the Act, has the advantage of doing justice to the defendant, by preserving his rightful entitlement under his father's estate, while at the same time only interfering with the testator's freedom of testamentary disposition to the extent to which it is necessary in order to ensure that justice is done to each of his three daughters.

Based on that analysis, I am satisfied that the appropriate relief in this case, therefore, would be for orders to be made in favour of the plaintiffs, whereby Louise would derive a 15 percent interest, Sue would derive a 10 percent interest, and Kathryn would derive a 5 percent interest, as tenants in common, of the interest held by Christopher in the Hopefield property, and in the water rights also held by Christopher. As I have already foreshadowed, the making of such orders in favour of the plaintiffs would need to take into account the legitimate interests of third parties, including the National Australia Bank. In addition, by assuming rights to the Hopefield property, each of the plaintiffs will be required to assume, or alternatively to indemnify Christopher in respect of, a proportionate share of the burden of the debt owed to the National Australia Bank.

152 The relief to be granted had to be moulded given that the expectation engendered by Christopher by his promises and representation lacked specificity. The trial judge did this by inferring from what Christopher had promised and represented that he would make reasonable provision for the respondents from their father's estate taking into account their respective circumstances. He considered that this was appropriately reflected in the provision which he ultimately arrived at viz a 15 per cent interest in favour of Louise, a 10 per cent interest in favour of Sue, and a 5 per cent interest in favour of Kathryn in Hopefield and the attached water rights.[202]

153 The trial judge considered that this relief was consistent with the type of provision, which it was envisaged, would have been made in favour of the respondents, if Christopher had adhered to his promises. He considered that the nature of this relief would not be unfairly disproportionate, and that the grant of relief would do justice to Christopher by preserving his rightful entitlement under his father's estate, while at the same time only interfering with the testator's freedom of testamentary disposition to the extent to which it was necessary in order to ensure that justice was done to each of his three daughters.[203]

154 Counsel for the appellant seek to challenge the relief granted by the trial judge on the basis, it is said, that the relief is disproportionate exceeding the distribution of income from a discretionary trust under the control of Christopher.[204]

155 However, the representations made by Christopher in April 2007 were that Christopher would make financial provision for the respondents and their children by setting up a trust, and in January 2008, that he would set up a trust from his father's estate to support all the family members. In my view, it was open to the trial judge in fashioning the relief to be granted to the respondents to determine that that relief should be by way of recognition of specific equitable interests which were appropriate having regard to the expectations engendered in the respondents by Christopher's promises and representations, and having regard to the respondents' needs and circumstances, and those of their families. Clearly, it would not have been appropriate or just for relief to be granted which, in effect, left to Christopher's discretion and control the benefits (if any) which were to be received in the future by them and their children.

156 The interests allowed by the trial judge amounted in all to 30 per cent leaving Christopher with 70 per cent of the interests in Hopefield and water rights inherited by him under Kenneth's will. In my view, this was a reasonable and proportionate allowance to be made in their favour.

157 At the hearing of the appeal, Senior Counsel for the appellant argued that in calculating damages for loss of chance arising out of estoppel, regard should be had to the uncertainty of such opportunities. He contended that the court must do only the minimum equity required, and that what it should do is what is required to avoid detriment but no more.[205]

158 Senior Counsel for the appellant referred to common law authorities as to the need to discount for uncertainty, and submitted that equity should follow the common law in this respect. He conceded that he was not able to point to any authority dealing with proprietary estoppel where this approach had been applied, but sought to contend that no different principle should apply.

159 Whilst the principles relating to the assessment of common law damages are not in doubt and have recently been considered by this Court,[206] in my opinion Senior Counsel's submission is misconceived. In formulating relief in cases of proprietary estoppel as I have set out above, the court looks towards the expectation that the estopped party has engendered by reason of the promises and representations that have been made.[207] The relief granted is founded in the undertaking of the party and the expectation that has been encouraged. Equity requires as a matter of conscience that the expectation be satisfied, or at least that relief be granted taking into account that prima facie the expectation should be satisfied. Clearly, it would not be appropriate to apply 'loss of chance' principles derived from the common law to the formulation of equitable relief in cases of proprietary estoppel where the relief is moulded around the engendered expectations. Whilst 'loss of chance' principles might have significance in assessing the extent of detriment which has been suffered, and whilst the level of detriment that has been, or may be suffered has relevance in determining whether the relief granted is proportionate, and not extravagant, the equitable relief to be granted is directed at the satisfaction of the expectations engendered by the promises and representations of the estopped party from which he should not be permitted to resile. This is exactly what the trial judge did. As a result, the 'loss of chance' submission must fail.

The evidence of the witnesses; general matters

160 The submissions advanced on behalf of the appellant primarily concern evidentiary matters, and contend that the trial judge should not have found that the respondents and Eliza Harrison gave their evidence, and responded to cross-examination, in a forthright and credible manner.[208] Rather, it is submitted that the trial judge should have rejected their evidence as reconstruction unless it was consistent with the evidence of Christopher or his witnesses.

161 In my opinion, the matters raised in this submission and related submissions were matters in which the trial judge was well placed to make conclusions. He saw each of the witnesses examined over a lengthy trial. I do not have the advantages of the trial judge in assessing the weight and credibility to be given to the evidence of the parties and the other witnesses. Nonetheless, I see no reason to differ from any of the assessments and conclusions that he has made.

162 The assessments made by the trial judge of the weight and credibility of the witnesses were detailed and careful. I see no basis on which it can be said that they were in error, or on which this court should interfere in the weight given to particular evidence, or the factual findings ultimately made.

163 In my opinion, the trial judge made a thorough and comprehensive evaluation of the claim for proprietary estoppel. I am not persuaded that there is any basis on which he was in error. In my opinion, none of the grounds of appeal are sustained. The appeal should be dismissed.

[1] For ease of identification, the appellant, respondents and other family members are referred to by their first names.

[2] Harrison & Ors v Harrison [2011] VSC 459 [269] (Kaye J) ('Judgment').

[4] See Harrison & Ors v Harrison (No 2) [2012] VSC 74 (Kaye J) for the reasons for the orders of the Judgment in [2011] VSC 459.

[5] Christopher Barton Harrison, 'Outline of Submissions on behalf of the Appellant' Submission in Harrison v Harrison, S APCI 2012 0043, 31 August 2012, [3] ('submissions').

[6] Judgment, [269]; Submissions, [7]-[39].

[8] Christopher Barton Harrison, 'Outline of Loss of Chance Submission' Submission in Harrison v Harrison, S APCI 2012 0043, filed 10 April 2013.

[14] Andrew Harrison, the son of Kenneth's brother Noel, had made a claim against CB Harrison Pty Ltd, the trustee of the family trust ('The Hopefield Trust').

[25] Judgment, [167] (citation omitted).

[38] Judgment, [171] and [242]-[245].

[42] Transcript of Proceedings, Harrison v Harrison, (Court of Appeal, S APCI 2012 0043, Harper and Tate JJA and Garde AJA, 10 April 2013) page 3 line 31 - page 4 line 23 ('Transcript').

[43] Christopher owned a relocatable house purchased for $30,000, and said at the trial to be worth $70,000 with a mortgage for $26,000-$26,500. Christopher was said to have debts of about $140,000. Sue was said to have net assets of $16,000. Louise and Kathryn were said to have net assets of about $350,000 each.

[44] Transcript, page 8 lines 8-12; page 24 lines 12-14; cf Judgment, [345].

[45] Transcript, page 4 line 7, page 12 lines 11-18.

[46] Transcript, page 12 line 31-page 13 line 14.

[56] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 125 [23] (Gleeson CJ, Gummow and Kirby JJ), citing Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549, 561.

[57] Ibid 125 [23] (citations omitted).

[58] Ibid 126-7 [25] (citations omitted).

[59] [2007] VSCA 267; (2007) 17 VR 592, 603-10 [65]-[95] (Dodds-Streeton JA with whom Buchanan, Nettle, Ashley and Kellam JJA agreed).

[60] [1979] HCA 9; (1979) 142 CLR 531

[61] Paterson v Paterson [1953] HCA 74; (1953) 89 CLR 212; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; (1970) 124 CLR 192; and Edwards v Noble [1971] HCA 54; (1971) 125 CLR 296.

[62] [1935] AC 243.

[63] [1955] AC 370.

[64] Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; (2007) 17 VR 592, 609 [90]-[91] (Dodds-Streeton JA with whom Buchanan, Nettle, Ashley and Kellam JJA agreed).

[66] [2006] HCA 1; (2006) 80 ALJR 458, 466.

[67] Kelso v Tatiara Meat Co Ltd [2007] VSCA 267; (2007) 17 VR 592, 610 [95] (citation omitted).

[122] Ramsden v Dyson (1866) LR 1 HL 129, 170 (Lord Kingsdown); Flinn v Flinn [1999] VSCA 109; [1999] 3 VR 712, 743 [95] (Brooking JA, with whom Charles and Batt JJA agreed).

[129] Email from Christopher Harrison to Paul Somerville and Kathryn Harrison, 9 September 2008.

[130] Email from Paul Somerville to Christopher Harrison, 9 September 2008.

[145] [1937] HCA 58; (1938) 59 CLR 641.

[147] Sullivan v Sullivan [2006] NSWCA 312; (2006) 13 BPR 24,755; Donis v Donis [2007] VSCA 89; (2007) 19 VR 577, 593-4 [54] (Nettle JA, with whom Maxwell ACJ and Ashley JA agreed); Delaforce v Simpson-Cook [2010] NSWCA 84; (2010) 78 NSWLR 483, 491 [44] (Handley AJA, with whom Allsop P and Giles JA agreed).

[148] Legione v Hateley [1983] HCA 11; (1983) 152 CLR 406, 437 (Mason and Deane JJ); Cameron v Murdoch [1983] WAR 321, 351-2 (Brinsden J); Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101, 124 (Gleeson CJ, McHugh, Gummow and Callinan JJ).

[160] [2010] NSWCA 84; (2010) 78 NSWLR 483.

[163] Judgment, [305] and [307] (citations omitted).

[165] Judgment, [302]-[303], [332], and [334].

[171] Judgment, [50]-[51] and [62].

[174] Judgment, [396]. See also Judgment, [354(7)].

[179] See Commissioner of Stamp Duties (Qld) v Livingston [1964] UKPC 2; [1965] AC 694; Official Receiver in Bankruptcy v Schultz [1990] HCA 45; (1990) 170 CLR 306, 312.

[181] Donis v Donis [2007] VSCA 89; (2007) 19 VR 577, 582 [19].

[182] Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387; Commonwealth v Verwayen (1990) 170 CLR 394.

[183] [2007] VSCA 89; (2007) 19 VR 577, 582-3 [18]-[20] (Nettle JA, with whom Maxwell ACJ and Ashley JA agreed) (citations omitted).

[184] [2010] NSWCA 84; (2010) 78 NSWLR 483, 492-4 [55], [57]-[69].

[185] [2007] VSCA 89; (2007) 19 VR 577.

[186] [2010] NSWCA 84; (2010) 78 NSWLR 483.

[191] [1999] VSCA 109; [1999] 3 VR 712.

[192] Judgment, [374]-[376] (citations omitted).

[193] [2008] VSCA 86.

[194] Judgment, [377]-[379] (citations omitted).

[195] Judgment, [380] (citation omitted).

[196] Judgment, [381]-[382] (citation omitted).

[197] [2009] UKHL 18; [2009] 1 WLR 776.

[198] Judgment, [383] (citations omitted).

[200] Judgment, [401]-[403] (citations omitted).

[205] Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387, 403-4 (Mason CJ and Wilson J); Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101, 124 [45] (Gleeson CJ, McHugh, Gummow and Callinan JJ); Commonwealth v Verwayen (1990) 170 CLR 394, 412 (Mason CJ).

[206] Goddard Elliott (a firm) v Fritsch [2012] VSC 87 [845]-[851] (Bell J); Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, 639-40 (Brennan and Dawson JJ); Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332, 350 (Mason CJ, Dawson, Toohey and Gaudron JJ); Rosa v Galbally & O'Bryan [2013] VSCA 116.

[207] Donis v Donis [2007] VSCA 89; (2007) 19 VR 577, 582-3 [18]-[20] (Nettle JA); Delaforce v Simpson-Cook [2010] NSWCA 84; (2010) 78 NSWLR 483, 492 [53], 494 [63]-[69] (Handley AJA).