Hinrichsen v Hinrichsen [2025] QSC 108

TRUSTS - COMMON INTENTION CONSTRUCTIVE TRUST - whether the plaintiff as registered owner of a rural property held a half interest as constructive trustee for his brother - whether express or implied common intention that property held on trust - consideration of relationship between common intention constructive trust and estoppel

EQUITY - TRUSTS AND TRUSTEES - CONSTRUCTIVE TRUSTS - JOINT ENDEAVOUR - where the plaintiff and first defendant engaged in joint venture in a family rural enterprise - where parties had on their separate properties trust owned cattle and plant and equipment - whether unconscionable for one party to retain the benefit of trust property and cattle sales

EQUITY - FIDUCIARY DUTIES - GENERALLY - whether receipt and holding of trust funds into a non-trust owned bank account preventing the payment of outstanding debts owed by a trust amounts to breach of fiduciary duty

Corporations Act 2001 (Cth), s180, s181, s 182, s 1305, s 1317E, s 1317H

Evidence Act 1977 (Qld), s 84

Land Act 1994 (Qld), s 301, s 302, s 325

Limitations of Actions Act 1974 (Qld), s 10, s 13, s 27, s 35

Property Law Act 1974 (Qld), s 10, s 11

Trusts Act 1973 (Qld), s 96

Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (2000) 202 CLR 588

Australasian Annuities Pty Ltd (in liq) v Rowley Super Fund Pty Ltd [2015] VSCA 9

Australian Karting Association Limited v Karting (New South Wales) Incorporated [2022] NSWCA 188

Bank of New South Wales v Brown (1982) 151 CLR 174

Bijkerk Investments Pty Ltd v Bikic Pty Ltd [2020] NSWSC 1336

Bosanac v Commissioner of Taxation (2022) HCA 34

Brackenridge v Bendigo and Adelaide Bank Ltd [2021] SASCA 129

Caringbah Investments Pty Ltd v Caringbah Business and Sports Club Ltd (in liq) [2016] NSWCA 165

Clayton v Clayton [2023] NSWSC 399

Doolan v Doolan [2023] VSCA 136

Farrah Constructions v Say Dee Pty Ltd (2007) 230 CLR 89

Franklin's Pty Ltd v Metcash Trading [2009] NSWCA 407; [2009] 76 NSWLR 603

Frazer v Walker (1967) 1 AC 569

Galati v Deans & Ors [2023] NSWCA 13

Joudo v Joudo [2024] NSWCA 258

Koprivnjak v Koprivnjak [2023] NSWCA 2

Love D&V XOXO Pty Ltd (Receiver and Manager Appointed) v Vlahos [2025] NSWSC 230

McCann v Switzerland Insurance Australia Limited [2000] HCA 65; (2000) 203 CLR 579

McDonald v Schinko Australia Pty Ltd [1999] 2 Qd R 152

Nathan v Williams [2020] QCA 138

Nolan & Ors v Nolan [2015] QCA 199

Oughtred v Inland Remedy Commissioners [1959] UKHL 3; (1960) AC 206

Presbyterian Church (NSW) Property Trust v Scotts Church Development Ltd (2007) 13 BPR 24, 969

United Petroleum Australia Pty Ltd v Herbert Smith Freehills [2018] VSC 347

• [1] Durrandella is a rural property of 25,700 hectares, situated approximately 50 km south of Alpha on the Alpha-Tambo Road. Christen Frederik Hinrichsen acquired the property in 1925.
• [2] On 5 November 1995, Christian Frederick Hinrichsen and his son Henry Neville Hinrichsen were registered as the co-lessees of Durrandella. Henry Neville Hinrichsen, commonly referred to by the parties as Mr Hinrichsen Senior, was born on 29 January 1914 and passed away on 13 September 2012. Mr Hinrichsen Snr was married to Jean Charlotte Hinrichsen, who is currently 87 years of age. Mr Hinrichsen Snr and Mrs Hinrichsen have five children: two sons, the plaintiff Neville William Hinrichsen and the defendant David Bailey Hinrichsen, and three daughters.
• [3] After Christian Frederick Hinrichsen passed away, Mr Hinrichsen Snr became the sole lessee of Durrandella on 27 July 1973. Neville was then aged 6 years of age having been born 26 November 1966. Neville is now 58 years of age. David was 3 years of age when his father became the sole lessee of Durrandella as David was born 6 July 1970. David is now 54 years of age.
• [4] Neville has lived the whole of his life on Durrandella, apart from five years between 1979 and 1984 when he received education at the Rockhampton Grammar School and the Emerald Agricultural College.
• [5] Prior to the year 2000, David had lived most of his life on Durrandella. David did leave Durrandella for several years for boarding school in Rockhampton and then TAFE and completed his mechanical apprenticeship in Emerald. David returned to Durrandella in 1991 and remained there for a further nine years until the year 2000. Apart from operating Durrandella for minimal wages, Neville and David conducted a regrowth control contracting business in partnership between 1994 and 1999, as well as a machinery hire business.
• [6] Francis John Houlihan is a chartered accountant who retired in August 2024 after 42 years of practice, specialising in rural practice. Mr Houlihan was a member of the Emerald accounting firm Harris, Houlihan, Holzwart, which was later incorporated to become HHH Partners Pty Ltd.
• [7] Prior to 1997, the cattle grazing business upon Durrandella was conducted by Mr Hinrichsen Snr and Mrs Jean Hinrichsen as a partnership.
• [8] Nineteen ninety-seven was an important year for the Hinrichsen family business. David alleges that it was in the first half of 1997 that the Durrandella Succession Agreement or arrangement came into existence. David alleges that the Durrandella succession agreement is an oral agreement entered into in the first half of 1997 that provided for the property to be left equally to Neville and David on the basis that they would continue to work the property full-time. David alleges on that basis that Neville and David would each receive a half share of Durrandella and that they would otherwise be excluded from obtaining any share of the estate of Mr Hinrichsen Snr when he passed away. The existence of the Durrandella Succession Agreement is the principal factual dispute in this case and will be addressed below. It is sufficient to note Neville does not deny that there were discussions and planning but he denies the existence of the Durrandella Succession Agreement.

• [23] The principal factual issue to be decided in the trial is whether the Durrandella Succession Arrangement exists as alleged by David or does not exist as alleged by Neville. I accept the submission made in paragraph 1 of Neville's outline of argument (Exhibit 196) that "the resolution of this matter will be determined by whether the Court accepts the evidence of the plaintiff or defendant".
• [24] The original Durrandella Succession Agreement is the subject of paragraph 14 of the amended counterclaim (without inclusion of the particulars) which alleges as follows:

"14. In or about 1997, Mr Hinrichsen Snr, Mrs Hinrichsen, the plaintiff and the defendant came to the following agreement, alternatively reached the following understanding, alternatively made the following arrangement, concerning the succession to and future management of Durrandella:

(a) The plaintiff and the defendant would continue to work in the cattle station operations of Durrandella full time and in return:

(i) the cattle station operations of Durrandella and the assets used therein would be managed by Mr Hinrichsen Snr, Mrs Hinrichsen, the plaintiff and the defendant jointly with income and profits to be shared between them using such legal structures as they may be advised;

(ii) Mr Hinrichsen Snr and Mrs Hinrichsen would ultimately withdraw from the management of the cattle station operations and from receiving profits generated by it whist retaining the right to reside in their homestead at Durrandella;

(iii) Durrandella would be transferred to the defendant and the plaintiff in equal shares before Mr Hinrichsen Snr died; and

(iv) The defendant and the plaintiff would ultimately have transferred to them in equal shares the stock and other assets associated with Durrandella.

The Durrandella Succession Arrangement was oral in the first half of 1997 but on or about late June 1997 part of it was placed in writing in the form of the Deed of Trust of the Hinrichsen Pastoral Trust and the Option pleaded in paragraph 16 below.

(b) in recognition of the matters stated in sub-paragraphs (iii) and (iv) above, the defendant and the plaintiff would otherwise be substantially excluded from Mr Hinrichsen Snr's will in favour of their sisters; (collectively the "Durrandella Succession Arrangement")."

• [25] David's claim, as set out above, is that the Durrandella succession agreement was oral for the first half of 1997, but in late June 1997, it was partly placed in writing in the form of the Deed of Trust of the Hinrichsen Pastoral Trust and the Durrandella Option Agreement of 25 October 1997. Accordingly, as alleged in paragraph 14(a)(iii), the agreement alleged was to the effect that Neville and David would continue to work Durrandella on a full-time basis, and Durrandella would be transferred to Neville and David in equal shares before Mr Hinrichsen Snr died.
• [26] The allegations of the agreement being partly in writing in the form of the Hinrichsen Pastoral Trust deed and the Option Agreement support the allegations of David as to the existence of the Durrandella Succession Arrangement. However, as important parts of the agreement were said to be oral, then the accuracy, reliability, and importantly, credibility of Neville and David is an important issue at trial.
• [27] I was impressed by the evidence of David. David was subject to an aggressive and lengthy cross-examination and answered questions logically and was largely consistent in his answers. As discussed below in detail, although Neville was subject to an even lengthier cross-examination, I consider his evidence to be in many parts illogical and inconsistent. David's evidence has the support of the evidence of Mr Frank Houlihan and also his sister, Ms Heather Sanders.
• [28] Where there is a conflict between the evidence of Neville and David, I prefer David's evidence as representing the truthful and reliable account of the events that occurred over many years. David made concessions in his cross-examination, such as not understanding what was meant by the term "perpetuity date". As discussed below, Neville found himself in the contradictory position of arguing that there was no Durrandella succession agreement or arrangement, whilst conceding that most of the terms pleaded in paragraph 14 of the amended counterclaim were agreed.
• [29] In particular, at the time of the Durrandella succession agreement in 1997, Neville expressly agreed with the terms alleged in paragraph 14(a)(i), (ii), (iii), and (iv) and paragraph 14(b).[4] Indeed, in terms of paragraph 14 of the amended counterclaim, it was only a particular alleging Mrs Hinrichsen acted as an intermediary and the termination clause that were objected to by Neville.

"That when both of them were comfortable with the level of debt, and that's in relation to - so the whole process was all the assets were then owned, either in individual names, in the trust or still in Mr Hinrichsen's name, would be all added up, the debt taken off, division of property 50/50, and if the debt level was too high, then an adjustment would have to be made between the two parties so that they ended up with a similar amount of net assets."

• [39] I accept that Neville and David were part of this discussion with Mr Hinrichsen Snr, and that the agreement between the parties was as deposed by Mr Houlihan, which supports the existence of the Durrandella Succession Agreement as alleged in paragraph 14 of the amended counter claim and the later amendments.
• [40] One of the significant difficulties with Neville's evidence, which he appeared to be completely unaware of, is that it was often contradictory. A significant contradiction is that it is Neville's pleaded case that there was no Durrandella succession agreement or arrangement. Yet in his evidence, he has agreed to all terms of the succession agreement with the exception of the termination clause and the intermediary suggestion. Despite agreeing to all of the significant terms, Neville did contradict himself by stating "I do not agree to this family agreement that you keep referring to."[12]
• [41] Neville agreed[13] that there were discussions between Mr Hinrichsen Snr, Neville and David that Neville and David would become the next and equal owners of Durrandella after the Hinrichsen Pastoral Trust was drawn up "...at a later date".
• [42] David had sworn evidence that it was Neville who brought up the issue of the future of Durrandella, as Neville, with his young family, required more security. That part of David's evidence was not the subject of any cross-examination. Neville's evidence commenced[14] with him alleging that it was his father, Mr Hinrichsen Snr, who raised the issue with Neville and David about the management and farming operation of Durrandella. Neville[15] said that in early 1996 he was looking for more security. I accept that it was Neville who brought up the issue about Neville and David managing, farming and succeeding to Durrandella, and not Mr Hinrichsen Snr.
• [43] Regardless of who raised the issue, Neville did agree that in discussions between his father, mother, himself and David, it was agreed that Neville and David would become equal partners and equal profit sharers with their parents in Durrandella. I accept Neville and David's evidence that the Hinrichsen family attended at a succession planning seminar in Alpha conducted by Mr Frank Houlihan in 1996 or 1997, then made arrangements to attend upon Mr Houlihan in his office at Emerald. I accept Neville's evidence that it was Mr Houlihan's idea "to set up so that everyone could become equal - um - directors and beneficiaries ... and bring Mum and Dad's cattle grazing business into Hinrichsen Pastoral - becomes Hinrichsen Pastoral, for us all to be moving forward in that fashion."

"...that he lived and worked on "Durrandella" and accepted the minimal wage paid by his parents because during his lifetime the late Mr Hinrichsen Snr had told him (the plaintiff) and he (the plaintiff) believed it to be true and acted upon the faith of the representations, and to his own detriment and that of his own family, that he was to have "Durrandella" as his own property."

• [46] Neville's allegation in paragraph 13(d) is not the subject of any of Neville's evidence and is also contradicted by of Neville's evidence. In view of Neville's admission that he wanted security for himself and his family, his unproven allegation in paragraph 13(d) that Mr Hinrichsen Snr had promised that Neville alone was to receive Durrandella as his own property, it seems to me to be highly improbable that Neville would not have had any discussion with his father, Mr Hinrichsen Snr, as to the contents of his will.
• [47] One of the troubling features of Neville's evidence was his emphatic declaration that Exhibit 5, the option to purchase, was signed in the offices of Charles Lumsden Solicitor in Emerald immediately after Mr Lumsden had taken "us through the document".[18] An outstanding feature of Exhibit 5, the option to purchase of 25 October 1997, and Exhibit 18, the will of Mr Hinrichsen Snr of 25 October 1997, is that Michael Vincent Horlock of Sky Alpha was the witness to each of the signatures on both exhibits with Ethel Horlock being the other witness who signed Mr Hinrichsen Snr's will of 25 October 1997.
• [48] After it was pointed out to him that Michael Horlock was the signature to the deed of option only then did Neville concede "Michael Horlock being at Durrandella just signing papers",[19] and that the option was signed at the kitchen table at Durrandella.[20] Neville also confirmed that Mr Lumsden did not come to Durrandella for any professional business.[21]
• [49] In view of the witnesses' signatures of Mr and Mr Horlock upon the documents of 25 October 1997 and Neville's evidence that the option was signed on the kitchen table at Durrandella, I reject Neville's evidence at T3-103 that the option was signed in Charles Lumsden's office in Emerald after Charles Lumsden had taken the Hinrichsen family through the document and explained every term, after which the family immediately signed the document.
• [50] Whilst it is possible that Neville had simply made an error in his recollection, as for example, Exhibit 11 the deed of assignment of 7 November 2000 was signed in Charles Lumsden's office, I consider it more likely that Neville's original evidence as to the execution of the option contract at T3-103 was deliberately false. This, together with the contradictions in Neville's evidence does lead me to conclude, together with the high credibility of David's evidence that in the areas where there is conflicting evidence, I prefer the evidence of David as being truthful and accurate over the evidence of Neville.

"...[H]e wanted me to go with him to a solicitor to get cut back into Durrandella for if there was any windfall from the mines, that he would benefit from that... And I said, well, there's --- there's no future of that because the coal mines have been and gone and there was --- they --- was nothing was found."

• [67] In my view, the 2010 conversation shows that it was David's position that he was an equal beneficial owner of Durrandella in 2010, and therefore was entitled to be "cut back into Durrandella" if there was some windfall from a mining company taking an interest in Durrandella. In my view, Neville's answer was telling. Namely, that he did not say that David did not have a beneficial interest in Durrandella. He did not say he could not be "cut back into Durrandella", rather simply said the coal mines have been and gone and nothing was found.
• [68] In my view, Neville's response is consistent with Neville's understanding as to the existence of an agreement and common intention between Neville and David as to the equal beneficial ownership of Durrandella.
• [69] According to Neville, in the same visit in 2010, David mentioned that Frank Houlihan had told David that Neville was running a head of cattle of his own on Durrandella, and that David "just followed up himself by saying I am not sure why he brought that up, but I did not feel it was any of my business."
• [70] That conversation is most curious. It would appear that the existence of the conversation was sought to be used in Neville's case to defend a claim that Neville had acted improperly in running his own cattle upon Durrandella. However, the conversation is equally likely to reflect an understanding that the brothers had that they were both able to run small personal herds on their respective properties, that is, outside of the auspices of the Hinrichsen Pastoral Trust.
• [71] Neville alleges that it was in 2014 that he had discussions with Frank Houlihan about terminating the Trust.[30] Neville alleges that Mr Houlihan advised that it was complicated. It would appear that Neville challenged this advice by questioning why it was complicated by saying "How is that? It is only land, and - ah - stock and plant". To which Neville alleges Mr Houlihan said "Oh that is right. But that's what we had - uh - was arranged originally, but David wants to include the value of the properties in the split-up."[31] [my underlining]
• [72] Neville's evidence in this regard, is also a contradiction, as Neville himself has expressed that the terminating arrangements between Neville and David ought not to be complicated because it is only a matter of splitting up the land, stock and plant, and reference to land can only be a reference to Durrandella and the Croydon properties. Furthermore, Neville's evidence of Mr Houlihan's reply stating "that was arranged originally" is confirmation of the agreement as alleged by David, and Mr Houlihan's answer that David wants to include the other properties, is again confirmation of David's position that the rural properties were always part of the assets jointly owned by Neville and David.

"I note that David and Neville have requested me to prepare an agreement for them concerning their rights subject to a forced sale of "Yappar River" and "Ella Vale" (it is noted that, pursuant to requirements of the Department of Natural Resources, the properties cannot be sold separately). I request that Neville and David make an appointment with me to discuss this matter further."

• [101] It is apparent that neither brother took up the opportunity to make an appointment to draft the agreement between Neville and David as to their rights should there be a forced sale of the Croydon properties. The letter contemporaneously sets out the common view of both Neville and David that they needed a written agreement to be prepared concerning their underlying rights subject to a forced sale of Yappar River and Ella Vale. As all of the property, plant, equipment and stock were owned by the Trust, the rights of Neville and David could only relate to the leases of the properties themselves. I view this as clear evidence of the understanding and state of mind of Neville and David in November 2000, that is, that both brothers understood that they were the owners, and I infer equal owners, of the Croydon properties, despite the Croydon properties being "placed" in David's name.
• [102] Neville confirmed[65] that David was not free to run the Croydon properties as he wished, but rather was obliged to conduct the business on behalf of the Hinrichsen Pastoral Trust. Although Neville accepted that David was obliged to conduct the business on behalf of the Hinrichsen Pastoral Trust, Neville also gave evidence that David could simply sell the land if he wished to, and do what he wished with his part of the family business.[66]
• [103] Neville's answer in this regard is illogical. Neville had accepted that the endeavour to expand the family business by purchasing the Croydon properties was a long-term proposition, with Neville variously giving evidence that there was no time limit, or a suggested time limit of some 10 years. In view of the significant value of the over 3,500 head on the Croydon properties, it did not make any commercial sense to suggest that David could sell the Croydon properties after a short time. This would have been entirely disruptive to the business of the Trust being conducted upon the leases and in knowledge of the debt to PIBA and latter Rabobank being secured upon Durrandella.
• [104] There are significant admissions in the annual review statements signed by Neville and provided to Rabobank. Neville confirmed that it was his practice to complete those forms honestly.[67] Exhibit 35 is the annual review position statement signed by Neville on 1 June 2016, which nominates the property Durrandella as a Trust asset. It also includes $651,000 in a Rabo savings account as being Trust property, which it was acknowledged to be, with the exception that Neville had taken the money from the Trust's Rabo account and placed it in his own account.

"16. Pursuant to the Durrandella Succession Arrangement and the advice and decision described in the previous paragraph:

(a) on or about 24 June 1997 the second plaintiff by counterclaim was incorporated and registered;

(b) Mr Hinrichsen Snr became the sole shareholder of the second plaintiff by counterclaim upon its incorporation;

(c) the defendant, the plaintiff, Mr Hinrichsen Snr and Mrs Hinrichsen became the directors of the second plaintiff by counterclaim upon its incorporation;

(d) on or about 27 June 1997 the "Deed of Trust Hinrichsen Pastoral Trust" was executed and the Hinrichsen Pastoral Trust was settled;

(e) the second plaintiff be counterclaim became the operational entity carrying on the business of Durrandella (as Trustee of the Hinrichsen Pastoral Trust) in place of Mr Hinrichsen Snr and Mrs Hinrichsen with all station stock, plant and equipment transferred to it;

(f) on or about 25 October 1997 Mr Hinrichsen Snr granted an option to the defendant and the plaintiff jointly to purchase Durrandella for the sum of $1 (the "Option"); and

The Option was granted by a Deed in writing dated 25 October 1997. A copy is available upon request from the defendant's solicitors; and

(g) the defendant and the plaintiff continued to work full time in the cattle station operations at Durrandella on behalf of the second plaintiff by counterclaim from about mid-1997 to mid-2000.

1. The Trust Deed of the Hinrichsen Pastoral Trust contained terms to the following effect, or as reproduced below as the case may be:

(a) Mr Hinrichsen Snr, Mrs Hinrichsen, the plaintiff and the defendant became the Appointers;

(b) the second plaintiff by counterclaim was appointed as Trustee;

(c) Mr Hinrichsen Snr, Mrs Hinrichsen, the plaintiff and the defendant became the Primary Beneficiaries (a defined term);

(d) Mr Hinrichsen Snr, Mrs Hinrichsen, the plaintiff and the defendant became the Fixed Beneficiaries (a defined term);"

• [159] In respect to paragraph 16 of the counterclaim, Neville's amended reply to the amended defence admits subparagraphs (a) to (g) were done but denies that any of the acts pleaded in subparagraphs (a) to (g) were done pursuant to the Durrandella Succession Arrangement. However, I accept as alleged that each of the acts was done pursuant to the Durrandella Succession Arrangement, as that arrangement did exist and did require those matters to be undertaken.
• [160] In paragraph 18 of the counterclaim, David alleged:

"18. The terms of the Trust Deed and of the Option operated to vary the Durrandella Succession Arrangement.

Further and better particulars supplied at the request of the plaintiff

The execution of the Trust Deed and the Option occurred pursuant to the Durrandella Succession Arrangement and represented both a particular fulfillment of that arrangement and a variation and evolution of it.

The Durrandella Succession Arrangement was varied by the Hinrichsen Pastoral Trust Deed and the Option being more detailed, precise and comprehensive than what had been discussed in the meetings and conversations pleaded in paragraph 14 above."

• [161] Neville's response was firstly to deny paragraph 18 on the basis that the Durrandella Succession Arrangement or agreement did not exist. I have accepted it does exist. Neville then pleads in respect to paragraph 18:

"Further, the Trust deed and the Option agreement are entire written agreements operating independently of each other and subject only to the terms of each written agreement. Further, clause 12 of the Option agreement states: 'This agreement constitutes the entire agreement as concluded between the parties, notwithstanding any prior negotiations, representations, warranties, covenants, understandings or agreements made or entered into before the execution hereof.'"

• [162] Paragraph 18 of the counterclaim is curious in that it alleges that a variation was achieved by the Trust deed and option "being more detailed, precise and comprehensive" than the oral Durrandella Succession Arrangement. If indeed it was more precise, as it plainly is, then it seems to me it would cover the field of the antecedent oral agreement.
• [163] The only area that it did not cover was the term alleged in paragraph 14(b) of the exclusion of Neville and David from Mr Hinrichsen Snr's will, as recorded above. That will was signed on 25 October 1997, the same day as the option to purchase Durrandella. Mr Hinrichsen Snr's 1997 will[105] does evidence the fulfilment of paragraph 14(b) of the oral original Durrandella succession agreement and by clauses 4, 5 and 6 of Mr Hinrichsen Snr's 1997 will, he evinces a clear intention to treat Neville and David equally in terms of the property Durrandella, and the rural assets.
• [164] By clause 7 of his 1997 will, Mr Hinrichsen Snr left his non-rural assets entirely to his wife, Mrs Hinrichsen, in lieu thereof to his three daughters equally. It seems to me that the three documents, namely the Trust deed, the option, and Mr Hinrichsen's 1997 will, evidence the fulfilment of the oral original Durrandella Succession Arrangement, as pleaded in paragraph 14 of the counterclaim. That is, the antecedent oral Durrandella succession agreement had no further work to do, as all had been achieved by the Option, Trust deed, and Mr Hinrichsen's 1997 will.
• [165] By paragraph 20 of the counterclaim, David alleges that at the time that the Trust deed and option were executed, it was the common intention of Mr Hinrichsen Snr, Neville and David that upon the exercise of the option and registration of Neville and David as lessees for Durrandella, they would hold title to Durrandella on Trust for themselves in equal shares until the perpetuity date of the Hinrichsen Pastoral Trust, or such earlier time as may be agreed between them.
• [166] I consider that by the above actions taken by Mr Hinrichsen Snr, Mrs Hinrichsen, Neville and David confirm that those four persons did form a common intention that upon the exercise of the option and registration of Neville and David as the lessees of Durrandella, they would hold the title on Trust for themselves in equal shares.
• [167] However, in my view, it ought not to be inferred that the common intention was a holding until the perpetuity date, which was 79 years from the date of the signing of the deed. Indeed, it was not in the contemplation of the parties, but rather to the contrary, in contemplation between the parties, as per the original Durrandella succession agreement, was that Durrandella would be transferred to Neville and David equally during Mr Hinrichsen Snr's lifetime.

"21. Over the period of or about 1998 to 2000, Mr Hinrichsen Snr, Mrs Hinrichsen, the defendant and the plaintiff came to a common view that Durrandella was insufficiently profitable to support all of the people then living on it and in consequence arrived at a further variation of the Durrandella Succession Arrangement that:

(a) in addition to Durrandella, a further cattle station would be acquired for the second plaintiff by counterclaim to conducts its cattle grazing business upon as Trustee of the Hinrichsen Pastoral Trust;

(b) the defendant would move to the additional station to live and operate on behalf of the second plaintiff by counterclaim;

(c) the additional cattle station would be operated by the second plaintiff by counterclaim as Trustee of the Hinrichsen Pastoral Trust;

(d) the purchase of the additional cattle station, including its stock and equipment, would be financed by debt secured by whatever mortgages were necessary over Durrandella, the additional cattle station and the assets of the second plaintiff by counterclaim;

(e) the interest and principal repayment obligations for that debt would be paid by the second plaintiff by counterclaim out of its revenue; and

(f) Durrandella, the additional cattle station and the net assets of the Hinrichsen Pastoral Trust would be divided equally by value between the defendant and the plaintiff at a date agreed between them no later than the perpetuity date.

• [169] It is in his answer to the counterclaim Neville positively asserts in paragraph 20(a)(iii):

"It was the common intention of Mr Hinrichsen Snr, and the plaintiff and the defendant at that point in time that the transfer of Durrandella to the plaintiff and the defendant was to be by way of a gift. But that intention changed, and the plaintiff asserts by the time the option was exercised by the plaintiff, it was the common intention of Mr Hinrichsen Snr and the plaintiff and the defendant that the plaintiff was to take the transfer of Durrandella by way of gift, because the defendant had acquired and become the registered proprietor of Yappar River and Ella Vale as his property absolutely."

• [170] As may be observed by Neville's allegation in paragraph 20(a)(iii) of his answer, it is not disputed that a common intention was formed between Mr Hinrichsen Snr, Neville and David that Neville and David would be equal owners of Durrandella. On the pleadings, the dispute is whether the common intention of equal ownership changed when the Croydon properties were purchased.
• [171] Neville admitted that there was no further discussion about the arrangements between the purchase of the Croydon properties at any later time. As there was no discussion about it and because, as has been found above, it was Neville and David's intention that the Croydon properties be purchased jointly by Neville and David, and only being purchased solely in David's name as a result of Mr Houlihan's advice, there is no factual basis to support any change in the common intention.
• [172] Neville's pleaded case in response to paragraph 21 was to admit that there was a common view that Durrandella could not support all persons living on it which was formulated in about 1999 to 2000. And Neville admitted paragraph 21(e), namely that payments for the Croydon properties and the debt upon it would be paid solely by the Trust out of its own revenue.
• [173] By his answer to the counterclaim in paragraph 21(c)(i), Neville affirmatively alleged: "It was the common intention that the second plaintiff by counterclaim would only use Yappar River and Ella Vale to conduct its cattle operations on."
• [174] As may be observed from the admission of paragraph 21(e) of the counterclaim, it was Neville's case that the entire borrowings for the Croydon properties at a little over $1.5 million would be paid by the Trust from profits earned only from the Croydon properties, as Neville had positively alleged that it was only Yappar River and Ella Vale that the Trust was to operate upon.
• [175] Neville's pleaded case, therefore, was that he was to receive a multi-million dollar property, Durrandella, free of any encumbrance and fully provisioned with plant, equipment and cattle, and his brother David was required to move 1,000 km north to run a cattle property three times the size of Durrandella, with more than three times the number of cattle, in a less hospitable region, and work with more than 3,000 head of cattle to pay off the entirety of the borrowings for the Croydon properties from his own work, whilst Neville would receive a third of the profits (with the other third going to Mr and Mrs Hinrichsen Snr and Neville).

"24. Shortly after receiving the advice referred to in the preceding paragraph Mr Hinrichsen Snr, the defendant and the plaintiff decided

(a) to follow the said advice;

(b) that the land comprising Yappar River and Ella Vale would be purchased in the defendant's name;

(c) that the stock, brands, plant and equipment being acquired under the contract of sale for Yappar River and Ella Vale would be acquired by the second plaintiff by counterclaim;

(d) that the defendant would borrow the money to fund the portion of the land comprising Yappar River and Ella Vale;

(e) that the second plaintiff by counterclaim would borrow the money to fund its portion of the Yappar River and Ella Vale Purchase Agreement; and

(f) that Mr Hinrichsen Snr would guarantee the borrowing obligations of the defendant and the second plaintiff by counterclaim referred to in sub-paragraphs (d) and (e) above supported by a mortgage of Durradella."

• [182] Paragraphs 24(c), (d), (e), and (f) are entirely or largely admitted in the answer to the counterclaim. In paragraph 24(b) of the answer to the counterclaim, Neville pleaded:

"(b) admits with respect the allegation pleaded in subparagraph (b) that the land comprising the Yappar River and Ella Vale were to be purchased in the defendant's name, but otherwise denies the allegations pleaded because they are untrue (and the plaintiff believes them to be untrue) because:

(i) It was the decision of Mr Hinrichsen senior and the defendant and not the plaintiff; and ..."

• [183] It is David's case that Mr Hinrichsen Snr, Neville, and David all decided and therefore agreed to accept Mr Houlihan's advice and purchase or place the Croydon properties solely in David's name, even though Neville and David had equal ownership of Durrandella and the Croydon properties, in order to avoid a future stamp duty liability.
• [184] In respect of paragraph 24, I accept David's evidence and Mr Houlihan's evidence[106] that that in fact occurred. Neville's defence in paragraph 24(b) was that the purchasing of the Croydon properties in David's name was a decision of Mr Hinrichsen Snr and David, and not Neville. This was not something put to David in cross-examination, nor was it put to Mr Houlihan in cross-examination, nor was it any part of Neville's evidence. It was contradicted by Mr Houlihan's evidence[107] that the discussions and meetings were held by Mr Hinrichsen Snr, Neville, and David.
• [185] Importantly, Mr Houlihan's evidence[108] is that "all three of them were in my office in Emerald" during the conversations concerning the future retirement of Mr Hinrichsen Snr. The eventual separation of the Hinrichsen pastoral businesses was explained by Mr Houlihan's uncontradicted evidence, that:[109]

"...when both of them were comfortable with the level of debt, and that is in relation to - so the whole process was all the assets that were then owned either in individual names, in the trust or still in Mr Hinrichsen's name, would be all added up, the debt taken off, division of property 50/50, and if the debt level was too high, then an adjustment would have to be made between the parties so that they ended up with a similar amount of net assets."

• [186] Mr Houlihan had advised[110] that the agreed working relationship would be set out in a document with a sunset clause, which he recommended to be 10 years. However, that document was never drawn up.
• [187] Paragraph 25 of the counterclaim alleges that the allegations in paragraph 24, which I accept have all been proven, was a further variation of the Durrandella Succession Arrangement. In my view, it was the clear intention of Mr Hinrichsen Snr to provide equally for Neville and David in terms of rural land and rural assets.
• [188] As discussed above, in late 1997, I accept that the Durrandella Succession Agreement came into being, and that there was an agreement and a common form and intention by Mr Hinrichsen Snr, Mrs Hinrichsen, Neville, and David to provide for an equal division of Hinrichsen rural land and assets between Neville and David, as alleged in paragraph 14 of the counterclaim.
• [189] As discussed above, the execution of the Hinrichsen Pastoral Trust, the placing of all the Hinrichsen property, plant, and equipment into that trust, and the execution of the option agreement of 25 October 1997 and Mr Hinrichsen Snr's will of 25 October 1997 effected in full the Durrandella Succession Agreement as alleged in paragraph 14.
• [190] In my view, the Durrandella Succession Agreement and steps taken pursuant to the agreement confirms the common intention of Mr Hinrichsen Snr, Mrs Hinrichsen, Neville, and David that there would be an equal ownership between David and Neville of all Hinrichsen Pastoral assets. In my view, that common intention was, in part, manifested in the deed of the Hinrichsen Pastoral Trust, that option agreement, and Mr Hinrichsen Snr's 1997 will.
• [191] That common intention did not abate prior to, at the time of, and subsequent to the acquisition of the Croydon properties described above. I find the acquisition of the Croydon properties did effect a variation of the Durrandella Succession Arrangement by including the Croydon properties within the Durrandella Succession Arrangement. That is, I find that the common intention of Mr Hinrichsen Snr, Mrs Hinrichsen, Neville, and David was that the Croydon properties would be included in the Durrandella Succession Arrangement, such that Durrandella and the Croydon properties would run Hinrichsen Pastoral Trust cattle for the benefit of the Hinrichsen Pastoral Trust and subject to the trust provisions, and with Durrandella and the Croydon properties being equally beneficially owned by Neville and David.

• [196] In a decision concerning a retention of title or Romalpa clause, the plurality of the High Court in Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (2000) 202 CLR 588 said:

"[26] It is necessary to determine the equitable rights, liabilities and remedies which arise from the purported operation of the proceeds subclause. A pendent question also arises as to the manner in which the buyer's contractual rights and obligations are affected by equitable considerations. The disposal of this question necessitates, to use Lord Wilberforce's expression, the "flexible interplay of law and equity". This interplay is, however, confined by the terrain of case law, which, in this field of discourse, was described by Staughton J as "a maze if not a minefield". It is of some importance that parties to sophisticated commercial transactions have structured, and will continue to structure, their affairs on the basis that a certain and predictable course can be charted through this terrain.

[27] In Gosper v Sawyer, Mason and Deane JJ observed:

"The origins and nature of contract and trust are, of course, quite different. There is, however, no dichotomy between the two. The contractual relationship provides one of the most common bases for the establishment or implication and for the definition of a trust."

[29] In their joint judgment in Kauter v Hilton, Dixon CJ, Williams and Fullagar JJ identified: "the established rule that in order to constitute a trust the intention to do so must be clear and that it must also be clear what property is subject to the trust and reasonably certain who are the beneficiaries."

[32] In the situation just considered, where the trust is performed and discharged by appropriation of the proceeds by the seller, the relevant trust relationship between the buyer and the seller is brought to an end. A question may then arise whether, despite the seller having been funded in this way, it might retain a good claim for that amount by an action in debt against the buyer. The answer to that will be found not in trust law but in the terms, express or implied, of the contract between the buyer and the seller. In the formulation of those terms, particularly any implied terms, there is, to adapt the words of Lord Wilberforce, "surely no difficulty in recognising the coexistence in one transaction of legal and equitable rights and remedies" and the giving of effect to "practical arrangements" by "the flexible interplay of law and equity".

• [197] It seems to me that in the present case, there is no precise evidence of an explicit declaration of trust. In this case, there were a series of discussions and oral agreements concluding in August 2000, so that now, some 24 years later, no witness to the conversations appears to have a precise memory of the exact words used in those conversations and discussions. It seems to me, however, that the best evidence comes from the independent witness Mr Houlihan.[112]
• [198] There is evidence of the effect of the language used and the oral agreement being reached concerning the future of the activities of the Hinrichsen family in its conduct of rural enterprises.
• [199] Importantly, the nature of the transaction and the circumstances attending the relationship between the parties, in my view, all lead to the conclusion that the intention of the parties was to create a trust in respect of the rural properties was clear, the property the subject of the trust, being Durrandella and the Croydon properties was certain and there was certainty as to who were the beneficiaries of the rural land trust, and that was Neville and David in equal shares.
• [200] If it is necessary to put a label upon the trust, then it seems to me that the trust may best be described as a common intention constructive trust, although it may also be described as a joint endeavour constructive trust. The accepted facts also leave open a possible classification of a resulting trust that arises by objective intention in the sense discussed by Gordon and Edelman JJ in Bosanac v Commissioner of Taxation (2022) HCA 34 at [92]- [98].
• [201] In Kerr v Baranow [2011] 1 SCR 286, Cromwell J observed:[113]

"There is not much one can say about resulting trusts without a well-grounded fear of contradiction. There is debate how they should be classified and how they arise, let alone about many of the finer points."

• [202] It seems to me that the same may be observed in respect of constructive trusts, and this flows from the refusal of equity to be shackled to specific and rigid factual and doctrinal conclusions in the manner in which common law causes of action doctrines may be categorised.
• [203] An example is the question raised by Leeming JA in Bijkerk Investments Pty Ltd v Bikic Pty Ltd [2020] NSWSC 1336 at [113] to [119] as to whether the common intention constructive trusts continue to exist in Australia or rather are subsumed in the principles of proprietary estoppel.
• [204] In Koprivnjak v Koprivnjak [2023] NSWCA 2, Griffiths AJA, with whom Leeming JA and Mitchelmore JA agreed said at [24] and [25]:

"[24] As to John's claim that there was a common intention constructive trust, the primary judge noted at PJ1[28] that this claim was not developed in any detailed way, but her Honour adopted as a correct statement of the legal principles the judgment of Ward CJ in Eq (as her Honour then was) in Bassett v Cameron [2021] NSWSC 207 (from which an appeal was allowed on other grounds in Bassett v Bassett [2021] NSWCA 320). In brief, those principles were identified as follows:

(1) equity may intervene to prevent the unconscientious denial by the legal owner of another party's rights where the parties agreed, or it was their common intention, that the claimant should have an interest in the property owned by the other, and the claimant acted to his or her detriment on the basis of that agreement or common intention;

(2) it is sufficient that the parties intend that the claimant should have a beneficial interest or some form of proprietary interest (as opposed to there being a common intention that the parties have a specific share of the property);

(3) a less stringent test applies to the requirement of detriment once the common intention has been established, citing Green v Green (1989) 17 NSWLR 343 at 357 per Gleeson CJ (with whom Priestley JA agreed); and

(4) a common intention constructive trust may arise after the acquisition of the relevant property if the evidence establishes that the relevant common intention was formed at some later time.

[25] As noted above, neither party in this appeal challenged the correctness of the primary judge's statement of the relevant legal principles. Nor did either of them refer to or rely upon the decision of Leeming JA in Bijkerk Investments Pty Ltd Bikic [2020] NSWSC 1336, where his Honour explained why a common intention constructive trust may no longer survive in Australian law separately from an entitlement in estoppel (see at [116]-[119]). It was unnecessary, however, for his Honour to express a concluded view on that issue in that case. The position is no different here because, as will emerge, I consider that the appellant's claim that the primary judge erred in fact in concluding that there was no such common intention should be rejected."

• [205] Difficulties with the classification of the type of trust arising from any factual circumstance is illustrated in the decision of Galati v Deans & Ors [2023] NSWCA 13. Mr Galati and his associated company Trading Australia Pty Ltd brought action against Mr Deans and his associated company Fish Bank Development Corporation Pty Ltd in respect of land development adjacent to the Sydney Fish Markets. A joint venture had agreed to acquire shares through a nominee company, TRSH Pty Ltd, in its capacity as trustee for a unit trust.
• [206] After business relations failed, Mr Galati and Trading Australia brought an application seeking a declaration that, as a result of a common intention constructive trust, the nominee company TRSH held a 50% share of its shareholding in Felan's Fisheries Pty Ltd on trust for Trading Australia Pty Ltd as a tenant in common in equal shares with Fish Bank.
• [207] Mr Galati and Trading Australia's claim was dismissed by the primary judge, Ward CJ in Eq (as her Honour the President then was). Mr Galati and Trading Australia succeeded on their appeal, Macfarlan JA concluded that:[114]

"...Although Mr Galati's entitlement to a 50% interest in the shareholding in Felan's Fisheries may arguably be founded on a common intention constructive trust, for the reasons given by Basten AJA in [149] I prefer the conclusion that it arises out of a resulting trust..."

"[148] A third possible approach, raised by the Court in the course of argument and adopted by the counsel for the appellant in reply, was that the Court could find a "common intention constructive trust". The basis for such a trust is said to derive from principles found in such cases as Grant v Edwards and Green v Green. The relevant elements were set out by Ward CJ in Eq in Bassett v Cameron, where the Chief Judge further identified a claim based on a joint enterprise which failed, as seeking "to invoke the so-called 'joint endeavour' constructive trust of the kind identified in Baumgartner at 148, namely, where equity intervenes to restore to a party 'contributions which he or she has made to a joint endeavour which fails when the contributions have been made in circumstances in which it was not intended that the other party should enjoy them'."

[149] However, as explained by White J in Shepherd v Doolan the existence of an agreement or "common intention" referrable to the beneficial enjoyment of the property is one to be determined on the evidence. In my view, such a determination in the present case would be inconsistent with the findings of fact made by the trial judge as to which the appellant eschewed any challenge. The law does not impute a presumed intention. Further, it is said that the claimant must demonstrate that it acted to its detriment in reliance upon the common intention, although "a less stringent test applies to the requirement of detriment once the common intention has been established". That element supports the doubts expressed by Leeming JA in Bijkerk Investments v Bikic, noted by this Court in Koprivnjak, as to whether there is available under Australian law a "common intention constructive trust" which may be found in circumstances where no estoppel arises. In the present case, the trial judge expressly rejected a claim in estoppel and the appellant eschewed any reliance on estoppel at the hearing of the appeal.

[150] Once it is accepted that the ultimate provider of the funds, ECJ, disclaimed any interest in obtaining the shares, pursuant to the Nomination Agreement, the relevant source of funds was the joint contribution of the joint venturers, who were otherwise entitled to obtain the transfer of the property to themselves on payment to the seller."

• [209] White JA, on the other hand, acknowledged that a question had been raised as to whether common intention constructive trusts continue in Australia or had been subsumed within the principle of proprietary estoppel (at [57]). White JA then observed at [58] and [61] that neither party contended that the doctrine of common intention constructive trusts is no longer law in Australia.
• [210] White JA said at [60]:

"Proprietary estoppel, whether by encouragement or acquiescence, requires that the defendant induce an expectation by the plaintiff that he or she has, or will acquire, rights in respect of the property. The element of "inducement" has not been described as necessary for the formation of a common intention constructive trust, although the facts in a particular case, particularly where the common intention arises from agreement (as in Austin v Keele), might also support a finding of inducement."

• [211] White JA's conclusion at [77] was that the parties did form a common intention that TRSH would hold shares beneficially in Fish Bank and in equal shares, and at [78] that Galati had acted to his detriment in a way referable to the common intention by agreeing that TRSH be nominated to acquire Felan's Fisheries shares and providing funds jointly with Fish Bank to allow it to do so.
• [212] In the present case, neither party referred to the question raised by Leeming JA in Bijkerk Investments v Bikic, nor the subsequent cases, and nor did any party contend that the doctrine of common intention constructive trust is no longer law in Australia.
• [213] On the findings of fact made above, I conclude that Mr Hinrichsen Snr, Mrs Hinrichsen (acting through Mr Hinrichsen Snr), Neville and David agreed and formed a common intention that Durrandella and the Croydon properties would be owned beneficially equally by Neville and David, and I find as a fact that David has acted to his detriment by signing the Deed of Assignment on 7 November 2000 in reliance of the common intention and by operating the Croydon properties, which were over three times the size of Durrandella and with more than three times the number of cattle over the last 24 years.
• [214] In addition to the recognition of the existence of a common intention constructive trust in Galati v Deans (supra) such a type of trust has been recognised by the Queensland Court of Appeal in Nathan v Williams [2020] QCA 138 and the Court of Appeal of Victoria in Doolan v Doolan [2023] VSCA 136 at [95].

• [215] Paragraphs 36 to 40 of the counterclaim raise an alternative claim for the declaration of a joint endeavour constructive trust. In paragraph 60 of Exhibit 195, being David's submissions, it is recorded that David abandons any claim for any joint endeavour constructive trust in excess of 50% of Durrandella. The framing of the joint endeavour constructive trust as an alternative was based upon unequal contributions to the joint endeavour of the running of the three cattle stations and the unequal contribution made to that endeavour as pled in paragraph 39 of the counterclaim.
• [216] In Clayton v Clayton [2023] NSWSC 399, Meek J surveyed the differences and distinctions between the doctrines of common intention constructive trusts and joint endeavour constructive trusts, remarking at 532:

"[532] A crucial distinction between the two classes of case is that the common intention constructive trust turns on the actual intentions of the parties, unlike the joint endeavour constructive trust (see Ying Khai Liew, 'Constructive Trusts and Discretion in Australia: Taking Stock' at 973): Muschinski at 617 per Deane J; Bijkerk Investments Pty Ltd v Bikic [2020] NSWSC 1336 (Bijkerk Investments) at [117] per Leeming JA; Peter Young, Clyde Croft and Megan Smith, On Equity (2009, Thomson Reuters) at 445."

• [217] In the present case, as discussed above, David has succeeded on his common intention constructive trust because I find factually that it was the actual intention of Mr Hinrichsen Snr, Mrs Hinrichsen, Neville and David that Durrandella and the Croydon properties be owned equally beneficially by Neville and David.
• [218] In Clayton v Clayton, Meek J said at [548] to [553]:

"[548] The requirements for a joint endeavour constructive trust were articulated by Ward CJ in Eq (as the President then was) in Galati v Deans [2021] NSWSC 1094 at [913]:

913.... first, there must be both a joint relationship or endeavour, in which expenditure is shared for the common benefit in the course of and for the purposes of which an asset is acquired; second, the substratum of that joint relationship or endeavour must have been removed or the joint endeavour prematurely terminated "without attributable blame"; and, third, it must be unconscionable for the benefit of those monetary and non-monetary contributions to be retained by the other party to the joint endeavour.

[549] There is no need for the parties to possess an intention to create a trust. However, the parties' intention remains relevant to the extent that it must be shown that "the benefit of money or other property contributed by one party [was] on the basis and for the purposes of the [joint] relationship or endeavour" (Muschinski at 620). The claimant must demonstrate both the existence of a joint relationship or endeavour, and that the parties made contributions on the basis and for the purpose of that joint relationship or endeavour: Craig v Silverbrook at [109].

[550] Further, it is necessary to identify the scope of any joint endeavour: West v Mead at [59] per Campbell J (as his Honour then was).

[551] What circumstances satisfy each of requirements is ultimately a matter of evidence.

[552] Caselaw describes the need for the failure of the joint endeavour to meet the description of a "premature termination" (West v Mead at [64] per Campbell J), and says that the circumstances of failure must have been "not contemplated by the parties" (Henderson v Miles (No 2) [2005] NSWSC 867; (2005) 12 BPR 23,579 at [23] per Young CJ in Eq) and must be "outside the contemplation or intentions of the parties at the time of entry into the joint endeavour" (Cetojevic v Cetojevic [2007] NSWCA 33 (Cetojevic [NSWCA]) at [34] per Hodgson JA, Tobias and McColl JJA agreeing): Ying Khai Liew, 'The 'joint endeavour constructive trust' doctrine in Australia: Deconstructing unconscionability' [2021] AdelLawRw 3; (2021) 42(1) Adelaide Law Review 73 at 82.

[553] This generally requires the Court to look at the totality of the relevant evidence: Cetojevic [NSWCA] at [35] per Hodgson JA (McColl and Tobias JJA agreeing).

• [219] In Nolan & Ors v Nolan [2015] QCA 199, Boddice J, with whom Gotterson JA agreed, addressed the issue of common intention constructive trusts as follows:

"[53] The foundation for the imposition of a constructive trust in circumstances where parties have engaged in an enterprise by way of common endeavour is that a refusal to recognise the existence of an equitable interest in favour of one of those parties amounts to unconscionable conduct; the trust is imposed as a remedy to circumvent that unconscionable conduct.

[54] In that event, the court is to consider the terms of the constructive trust having regard to the respective contributions of the parties, making any necessary adjustment "to avoid any injustice which would result if account were not taken of the disparity between the worth of their individual contributions either financially or in kind". A contribution of a party need not be financial. A contribution may be in kind or otherwise, such as contributions to family welfare by way of domestic assistance.

[55] An example of the consideration of the respective contributions and the making of appropriate adjustments is contained in the decision of this Court in Engwirda v Engwirda. That case concerned a claim for a constructive trust based on a common intention. However, during the course of the trial leave was given to amend to a certain alternate basis, based on unconscionability. Both claims were dismissed in the first instance, and on appeal. However, in considering the claim based on unconscionability the court observed:

A contention of this kind is usually made and sometimes succeeds in a context in which both parties to a relationship such as this have provided their resources, in money and labour, for the purpose of acquiring or improving assets to be used by the parties in their joint relationship; usually a residence but sometimes a business in which they were or expected to become involved together. In many of these cases there has been a pooling of funds although that is not essential.

[65] Whilst the intention of the parties is not an essential aspect in findings of a constructive trust imposed to prevent an unconscionable assertion of legal title, an express agreement about what is to happen to the assets of the enterprise conducted by way of common endeavour in particular circumstances may be relevant if there is nothing unconscionable in holding the parties to that agreement. However, the particular circumstances are expressly relevant in determining whether there is unconscionability in holding the parties to that agreement. As Campbell J observed in West v Mead:

If the parties have expressly contemplated the very situation which has arisen, and have, in advance, agreed how the assets built up as a result of their joint efforts should be divided in that situation, it would often be the case that there is nothing unconscionable in holding the parties to their agreement."

• [220] A joint endeavour constructive trust succeeded in respect of a residential property in Joudo v Joudo [2024] NSWCA 258. Bell CJ, after noting counsel's acceptance of the principle reference to authority that a joint endeavour may change over time, said at [7]:

"[7] His Honour also found that the Joint Endeavour had failed without attributable blame by 15 April 2021. The language "without attributable blame" was taken directly from Deane J's seminal statement of principle in Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 at 620; [1985] HCA 78 (Muschinski) and approved in Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137 at 147 -148; [1987] HCA 59 (Baumgartner):

... the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do."

• [221] In the present case, if I am wrong factually to conclude there was a common intention for the three properties to be owned beneficially equally by Neville and David, then it appears to me that a joint endeavour constructive trust would, on the evidence, be established.
• [222] In particular, it seems to me that on the facts as accepted, there was a joint relationship or endeavour between Neville and David to develop Durrandella and the Croydon properties for their benefit equally and in respect of which both of them expended funds and efforts, and on David's side a great deal more effort than Neville in his running of properties three times the size and with more than three times the amount of cattle.
• [223] Paragraph 37 of the counterclaim is admitted, namely, that the relationship has broken down irretrievably so they can no longer cooperate and the joint endeavour has failed, and therefore the second element is proven. In respect of the third element, I conclude that it is unconscionable for Neville to retain the sole legal ownership of Durrandella. As observed by Boddice J at paragraph 65 in Nolan & Ors v Nolan, there is on the evidence, the agreement that the property Durrandella would be equally owned and there was an agreement as specified in Mr Houlihan's evidence that there would be an equal division when Neville and David agreed for the joint enterprise to cease.[115]

• [224] Neville raises indefeasibility arguments based on ss 301, 302, and 325 of the Land Act 1994 (Qld). These sections provide:

"301 Interest in land not transferred or created until registration

A document does not transfer a lease or licence or create a legal interest in a lease until it is registered.

(1) On registration of a document expressed to transfer or create an interest in land, the interest -

(a) is transferred or created in accordance with the document; and

(b) is registered; and

(c) vests in the person identified in the document as the person entitled to the interest.

(a) all other interests in the land previously registered; and

(b) all rights and interests of the State in the land, other than interests subsequently registered.

(a) all the rights, powers, privileges and liabilities of the transferor vest in the transferee; and

(b) the transferee holds the interest in the land subject to the registered interests affecting the interest.

(2) If a land management agreement applies to a lease being transferred, on registration of the transfer -

(a) the transferee is taken to be a party to the agreement in place of the transferor; and

(b) the rights and responsibilities of the transferor under the agreement become the rights and responsibilities of the transferee; and

(c) the lease continues to be subject to the following conditions -

(i) there must be a current land management agreement for the lease;

(ii) the lessee must comply with the agreement.

• [225] It has long been held that the principle of indefeasibility does not deny the right of a plaintiff to bring an action against a registered proprietor for a claim "in personam" founded in law or in equity for such relief as a court acting in personam may grant.[116]
• [226] The in personam exception to the indefeasibility principle has been recognised in Australia at least since Breskvar v Wall (1971) 126 CLR 376 at [385] per Barwick CJ. The in personam exception to the rule against statutory indefeasibility was also recognised by the plurality in Farrah Constructions v Say Dee Pty Ltd (2007) 230 CLR 89 at [169] per Gleeson CJ, Gummow, Callinan, Heydon, and Crennan JJ at [193] where their Honours said: "An exception operating outside the language of s 42(1) can exist in relation to certain legal or equitable causes of action against the registered proprietor ..."
• [227] In personam interests can arise from a contract.[117] David expressly pleads the elements of an estoppel, and as Presbyterian Church (NSW) Property Trust v Scotts Church Development Ltd (2007) 13 BPR 24, 969 shows, the personal equity can arise from an estoppel which binds a person to recognise the claimant's interest in land. Neville indefeasibility arguments therefore must fail.
• [228] Neville also raises a defence based on ss 10 and 11 of the Property Law Act 1974 (Qld). and provide:

(1) No assurance of land shall be valid to pass an interest at law unless made by deed or in writing signed by the person making such assurance.

(a) a disclaimer made under any law relating to bankruptcy in force before or after the commencement of this Act, or not required to be evidenced in writing; or

(b) a surrender by operation of law, including a surrender which may, by law, be effective without writing; or

(c) a lease or tenancy or other assurance not required by law to be made in writing; or

(d) a vesting order; or

(e) an assurance taking effect under any Act or Commonwealth Act.

(1) Subject to this Act with respect to the creation of interests in land by parol -

(a) no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by the person's agent lawfully authorised in writing, or by will, or by operation of law; and

(b) a declaration of Trust respecting any land must be manifested and proved by some writing signed by some person who is able to declare such Trust or by the person's will; and

(c) a disposition of an equitable interest or Trust subsisting at the time of the disposition, must be manifested and proved by some writing signed by the person disposing of the same, or by the person's agent lawfully authorised in writing, or by will.

(2) This section does not affect the creation or operation of resulting, implied, or constructive Trusts."

• [229] These defences do not assist Neville as it is not David's claim that he has an interest at law in Durrandella, but rather, that he has a right in personam based on paragraph 21(f) of the counterclaim.
• [230] Section 11(2) expressly reserves the operation of a resulting or constructive Trusts. It seems to me that the right in personam alleged in paragraph 21(f) of the counterclaim as Neville has taken the transfer of Durrandella to effect a particular purpose, which is the Durrandella Succession Agreement that causes a Trust to come into existence as a matter of law.[118]
• [231] Neville also raises Clause 12 of the option agreement, an "entire contracts clause" to defeat David's claims. In McDonald v Schinko Australia Pty Ltd [1999] 2 Qd R 152, Macpherson JA described a similar entire contracts clause as a "contractual merger provision" and said at 155:

"In excluding material outside the four corners of a written instrument, the parol evidence rule, at least on one view of its operation, arises from the inference that a document which appears on its face to be a complete record of the parties' contract is conclusively presumed to be so ... Once that presumption applies, it is doubtful if a merger clause like cl. 28.1 adds much if anything to the parol evidence rule. Yet, as the passage from Story makes clear, the equitable remedy of rectification operates outside the contract and despite the rule. Indeed, it may well be impossible for the parties by means of any contractual provision, however artfully drawn, to escape the court's jurisdiction to order rectification in a matter calling for its exercise..."

• [232] David does not seek any relief based on any antecedent contractual agreement. Rather, he seeks relief in equity. It is also plain that equity will not permit an entire agreement clause to stultify the operation of equitable doctrine[119].
• [233] Neville also raises a time limitation defence under s 13 of the Limitations of Actions Act 1974 (Qld). Neville's argument is that the 12-year period of limitation raised in s 13 runs from the time that Neville acquired title of Durrandella in his sole name in December 2004 and accordingly the right of action expired in December 2016. I do not accept this submission. This submission is incorrect in the first place because s 13(1) of the Limitations of Actions Act expressly provides that the 12-year period of time limitation is expressly subject to the provisions of s 27(1) of the Act. Section 27(1)(b) provides that a period of limitation prescribed by the Act does not apply to a beneficiary under a trust bringing an action to recover the trust property. David's action is an action to recover trust property.
• [234] In Neville's statement, Exhibit 198, at paragraphs 10-14, Neville explains how his relationship with David broke down after July 2014 with Neville expressing the view that on the termination of the trust, it was only the nett assets of the trust that was divided fifty-fifty but with David expressing his view through Frank Houlihan that the respective properties needed to be taken into account as well. It appears that there was a dispute about this issue for several years with little being done and nothing being resolved. Neville and David disagreed about this issue, however, it was not until 2020 when Neville unequivocally stated his position that David did not have any interest at all in Durrandella by commencing proceedings seeking the declaration as to ownership of Durrandella. It seems to me that if a cause of action arose, it did not arise until Neville unequivocally asserted that he had sole beneficial ownership of Durrandella, thus denying the existence of any interest that David had in Durrandella. In these circumstances, the cause of action did not arise until the year 2000.

Hinrichsen Pastoral Trust Counterclaim for Neville's Debt

• [235] Paragraphs 45 to 48A of the counterclaim bring an action by the company as trustee for the Hinrichsen Pastoral Trust against Neville, for a debt arising out of an account stated, or alternatively a loan.
• [236] Paragraph 45 of the counterclaim contains a table setting out the amounts stated in the balance sheet of the company, showing the amounts owed by Neville to the company from the financial year ended 30 June 2018 to 2023. The table shows how the loan account balances were accounted for.
• [237] A simple example is the 2018 financial year in which Neville had withdrawn $647,078.94 from the Trust's account and transferred it directly to his own account. In addition, Neville had, by continuing to withdraw $4,000 per month or $48,000 per year, exceeded his trust distribution by $36,655.60, which was accounted for in the ledgers, resulting in Neville exceeding his drawings. In addition to the amount owed in Neville's own bank account, the total was some $683,735.
• [238] A similar process is then undertaken in respect of each financial year, with the balance on the account stated as at 30 June 2023 being some $395,177. This is not evidentially challenged. To the contrary, indeed, it is admitted by Neville in paragraphs 81 to 85 of his witness statement, Exhibit 198.
• [239] In paragraph 81 of his statement, Neville explains how he, without reference to David, took the money from the trust bank account and transferred it into his own bank account, of which he had sole control, because he wanted to "quarantine an amount of funds from David so as to ensure the trust was in a position to pay debts of the trust as and when they arose."
• [240] No challenge is made to the mathematical accuracy of the final balance owing of $395,177. The accountants, Mr Houlihan and Mr Wilkes' statements, set out how the account statement was calculated and also Neville has signed the financial accounts stating, amongst other things, the amounts stated were true and accurate for the 2018, 2019 and 2020 financial years.
• [241] At paragraph 45 of his amended reply to the amended defence filed 30 September 2024, Neville has alleged that the relevant entries constituting the debt "were made by the trust accountant of his own volition for the purpose of reducing or avoiding the personal tax liabilities of the beneficiaries ... the entries were not made on the instructions or with the agreement of the plaintiff."

"[228] I agree with the statement by Robson J of the duties of a director of a company that acts as a corporate trustee. In circumstances where a company is a corporate trustee, a director acting in the best interests of the company as a whole must act in good faith to ensure that the company administers the trust in accordance with the trust deed having regard to the rights and interests of the beneficiaries of the trust. The best interests of the company as a corporate trustee are to act properly in accordance with the trust deed in managing the business of the trust and in dealing with the assets and liabilities of the trust. A director of a corporate trustee must act in good faith to ensure that the company complies with its obligations as a trustee, and properly discharges the duties imposed on it by the trust deed and by trust law generally. It is not in the best interests of the company for it to act in breach of its duties of a trustee, for the company has assumed the responsibilities of that office and must see to it that they are fulfilled.

[229] The obligation of a director of a corporate trustee is the same whether the trust is a unit trust or a discretionary trust viz to act in good faith to ensure that the company acts properly in accordance with the trust deed in administering the business, assets and liabilities of the trust. Although in the case of a discretionary trust, a member does not have any present entitlement to the trust assets, the member does have standing to compel the proper administration by the corporate trustee of the trust. This is not disputed. The director should act in good faith to ensure that there is no cause for legitimate complaint by a beneficiary about the administration of a trust for which the company is responsible."

• [254] In paragraph 68 of Neville's written submissions, Neville submits, and I accept, that the standard required of a director of a trustee company is higher than that of a director simpliciter. I also accept that as a principle, it is the responsibility of the directors to ensure that in managing the trust business, the trustee exercises the same care that an ordinary prudent businessman would exercise in conducting the business as if it were his or her own.[122]
• [255] Neville's argument is that in taking the $647,078.94 from the Trust's Rabobank account in 2018, and placing it directly into his own personal account, it did not create a loan but rather created a bare trust.
• [256] Neville submits the debt is a false loan account in which it was suggested in the cross-examination of Mr Houlihan that Mr Houlihan created a false loan account "of his own volition". Mr Houlihan rejected this, explaining[123] that "he took money from the trust" and "A loan is not a drawing. A loan is a loan. It is not a drawing, it is a loan..."[124]
• [257] Mr Houlihan then explained how HHH Partners had questioned the taking of the money from the trust. Mr Houlihan explained how his staff member, Ms Kerry, had questioned Neville about taking the money from the Rabobank account, which Neville stated in reply, "Kendall, the savings account is Rabo Cash Management Account in the name of Neville Hinrichsen. This money in this account is 100% Hinrichsen Pastoral. This is not a drawing, just a holding account."
• [258] This passage seems to show some confusion in Neville's mind as to what is a loan, what is a drawing and what is a debt. The accounts prepared by Mr Houlihan and Mr Wilkes of HHH Partners are prepared properly, accurately and in conformance with normal trust accounting principles. It was not suggested otherwise. Indeed it is not necessary to call an accountant to prove the accuracy of the books of account.[125] David did call Mr Houlihan and Mr Wilkes and it was not put to them that any entry was inaccurate.
• [259] A trust net profit is calculated at the end of each financial year and distributed to beneficiaries in accordance with the trust deed and resolution of the trustee. If beneficiaries of the trust do take any sums of money from the trust prior to the declaration of the profit, then the taking of that sum is properly accounted for as drawings which is a loan and a debt. Plainly, when a beneficiary draws more from the trust than the beneficiary's distribution of profit, then the beneficiary is indebted to the trust.

• [266] Paragraphs 49 to 58 of the counterclaim allege that Neville breached his duty as a director of the plaintiff by counterclaim by running a herd of cattle in partnership with his wife upon Durrandella for the 2014 through to 2024 financial years. Factually, Neville does not deny that he did this, but appears to argue that he is entitled to compete with the trust.
• [267] Paragraph 49 of the counterclaim alleges it is a further term or part of the Durrandella Succession Arrangement that the company would occupy Durrandella exclusively for the purpose of carrying out its operations upon Durrandella. Neville denies that this was a part of the Durrandella Succession Agreement, which he says does not exist.
• [268] I, however, accept David's evidence and the evidence of Mr Houlihan[126] that Durrandella would be exclusively used to operate the cattle side of the trust business. The term of the Durrandella Succession Agreement in paragraph 49 of the counterclaim, however, is not part of the cause of action alleged against Neville in paragraphs 53 and 54 of the counterclaim.
• [269] Although by paragraph 53(a) of the counterclaim David alleges that Neville's actions in running cattle upon Durrandella was a breach of the Durrandella Succession Agreement pleaded in paragraph 49, David does not allege in paragraph 54 that any loss has flowed from that breach. The loss of $3,548,440 was alleged in paragraph 54 to have arisen from the breach of the duties by Neville. The duties of Neville that have been breached are set out in paragraph 53(b) of the counterclaim and not paragraph 53(a).
• [270] Section 180(1) of the Corporations Act 2001 (Cth) provides:

(1) A director or other officer of a corporation must exercise their powers and discharge their duties with the degree of care and diligence that a reasonable person would exercise if they:

(a) were a director or officer of a corporation in the corporation's circumstances; and

(b) occupied the office held by, and had the same responsibilities within the corporation as, the director or officer.

• [271] Section 182(1) of the Corporations Act 2001 (Cth) provides:

Use of position--directors, other officers and employees

(1) A director, secretary, other officer or employee of a corporation must not improperly use their position to:

(a) gain an advantage for themselves or someone else; or

(b) cause detriment to the corporation.

• [272] Paragraph 50 of David's counterclaim pleads that Neville owes the statutory duties under sections 181(1) and 182(1) of the Corporations Act. Paragraph 68 of Neville's written submissions (Exhibit 197) accurately asserts that the standard of care required of a director of a company is higher than that of a director of a simpliciter.[127]
• [273] In United Petroleum Australia Pty Ltd v Herbert Smith Freehills [2018] VSC 347, Elliot J summarised the principles governing section 182 of the Corporations Act at [644]-[646] as follows:

"[644] Section 182 requires a director not to have a proscribed purpose: to gain an advantage or to cause a detriment. It is not necessary that an advantage has in fact been gained by the director or other person or that detriment has in fact been caused to the corporation. Further, in ascertaining whether a director had 1 or other of the proscribed purposes in mind when she or he made use of her or his position, it is relevant to consider the particular duties and responsibilities of the director and her or his appreciation of the circumstances at the relevant time.

[645] The test is whether the conduct would breach the standards of conduct that would be expected of a person in the director's position by a reasonable person with knowledge of the duties, powers and authority of her or his position as director, and of the circumstances of the case, including the commercial context. A director's appreciation of the relevant circumstances might be relevant to analysis of the propriety of the use the director made of her or his position in acting as she or he did.

[646] In this court, it has been held that impropriety requires "behaviour [that] breached the norm of conduct thought necessary for the proper conduct of commercial life so that people will have confidence that the running of the marketplace is in safe hands"."

• [274] The critical allegation in this part of the counterclaim is paragraph 52, that since 2013, Neville has conducted cattle grazing operations upon Durrandella for the profit and benefit of himself or alternatively allowed parties other than the trust to conduct such operations for their benefit without accounting to the trust.
• [275] In paragraph 52 of his answer to counterclaim, Neville admits that he has done this, asserts that he had his father's permission to do so, and that David knew of this and did not object to Neville running his own cattle upon Durrandella. It is common ground that the cattle movements in Durrandella were recorded as a part of the National Livestock Identification System (NLIS) and so the parties have largely agreed the cattle movements to and from Durrandella from the 2014 financial year to the 2023 financial year.
• [276] Cattle movements are also the subject of evidence from Mr Houlihan and Mr Wilkes. An important tabulation showing movements is contained in paragraph 51D of the counterclaim, which is admitted by paragraph 51D of the answer to the counterclaim, with some very minor exceptions that are largely irrelevant in terms of the important total column. The only difference between David and Neville is that David has the 2023 total of 535 head being valued at $618,945, which is a typographical error as the correct figure is $618,495.
• [277] Neville has in paragraph 51 of his answer the same cattle numbers of 535 head, but places a higher value on them of $652,171. As David's figures have been verified by the accountants and are more conservative than Neville's figures, I consider that David's figures ought to be accepted as being accurate.
• [278] The effect of Neville's activities is more clearly observed from the particulars in paragraphs 52(a) and (b). What the figures show is that the trust had 1,559 cattle on Durrandella as at 30 June 2014 and 30 June 2015, before slowly reducing the herd through 2016, 2017, 2018 and 2019, at which point the herd had decreased to 438 cattle, i.e. was less than a third of the size.
• [279] The trust cattle were then all sold in the 2020 financial year, with the exception of nine head, which perhaps were not able to be mustered. There were no trust cattle on Durrandella in 2021. Whilst the trust cattle herd on Durrandella was being reduced from a significant herd of cattle, Neville, in partnership with his wife, increased their partnership herd from 221 cattle in the 2013 financial year, up to 976 cattle in the 2018 financial year (during the supposed period of the wipeout drought) and the closing stock number of 672 beasts on Durrandella in the 2020 financial year. Neville has not disclosed his closing stock levels since that point.

• [310] On 22 October 2024, orders were made requiring Neville to file and serve his witness statements by 10 January 2025. Attached to David's supplementary closing submissions dated 8 April 2025 is a letter of Neville's solicitors of 12 March 2025 showing that Neville's solicitors provided David's solicitors with a copy of Neville's unsigned affidavit and exhibits. That same letter advised that Neville's solicitors were in the process of arranging for the signing and filing with the court of Neville's witness statements.
• [311] Neville's witness statement was filed on 20 March 2025 but was not signed, nor was it served. Neville's witness statement, document 64 on the file, was admitted as Exhibit 198. It was plain that it was Neville's counsel's intention to tender Neville's statement, however, that did not occur until the sixth day of trial during submissions. It seemed that senior counsel for Neville had laboured under the misapprehension that Neville's statement had been tendered when it had not.
• [312] Exhibit F for identification is the list of objections to Neville's statements which was dealt with from T3-81 to T3-95. At the conclusion of the fifth day of the trial, the parties were directed to agree and settle the balance of the documentary evidence to be tendered, and as Neville's statement had been cross-examined upon in the trial, it was anticipated that Neville's statement would form a part of the agreed tendered bundle. That, however, did not occur by another oversight, and so during Neville's counsel's submissions on the sixth day of the trial, Neville was given leave to re-open his case to tender document 64 as Exhibit 198.
• [313] As David's counsel said at T6-54, line 39, he had been working from the unsigned version which became Exhibit 198 In these circumstances I reject the submission made by David's counsel that Neville's statement ought to be accorded no weight because it was tendered late or because it was not signed or because it could not constitute sworn evidence as Neville did not identify the document nor state the contents were true and accurate.
• [314] As stated above, there was a lengthy and extensive cross-examination of Neville upon all significant issues raised at the trial. I do not accord much weight to Neville's statement, not because it was not signed nor the fact that it was tendered late, nor the fact that Neville did not identify the statement nor swear its contents were true and correct. As Neville's counsel accurately submitted in paragraph 1 of his outline of argument, Exhibit 179, "resolution of this matter will be determined by whether the court accepts the evidence of the plaintiff or the defendant".

• [316] I will hear from the parties as to the form of orders which flow from these reasons. The defendant and plaintiffs by counterclaim are directed to file and serve submissions containing a draft form of order within three days hereof. If the plaintiff disagrees with the orders then the plaintiff is directed to file and serve submissions including its draft form of order within six days hereof.
• [317] Unless otherwise agreed by the parties, it seems to me that orders will include judgment in favour of the second plaintiff by counterclaim against the plaintiff, in the sum of $395,177 on the debt claim and judgment in favour of the second plaintiff by counterclaim against the plaintiff in the sum of $4,195,902.
• [318] I am conscious that although the plaintiff, Neville, is required to pay the company almost $4.6 million, he as an equal beneficiary is entitled to the benefit of half of that claim, a $2.3 million credit on the eventual resolution of the trust.
• [319] As stated above, David had sought Neville's authorisation by resolution to sell down sufficient numbers of the trust cattle at the Croydon properties to meet the Rabobank debt of $2.38 million, which is due on 30 June 2025. I will hear from the parties as to the best practical means of satisfying that debt, whether it be by the appointment of a liquidator to the company, a receiver and manager to the company, or statutory trustees for sale of some or all of the land, and/or via a direction pursuant to section 96 of the Trusts Act 1973 (Qld) allowing or requiring the company acting solely through David to sell a sufficient number of trust cattle, if practicable, prior to 30 June 2025 to pay out the Rabobank debt. Alternatively David may seek other directions which may include a direction that he take control of the Durrandella Pastoral Trust for the purpose of refinancing the Rabobank debt.
• [320] If the parties are unable to agree on orders, then statutory trustees for sale need to be appointed for the sale of Durrandella or Yappar River and Ella Vale. Past experience has shown that forced sales of large rural properties resulting from the breakdown of family relations is a difficult and time-consuming process. Issues arise involving the proper treatment of livestock on the pastoral holdings and how they can be properly and humanely dealt with or sold.

[23] Tarago was sold for $3.45 million; see TB 8055.

[98] T5-74 and with reference to trial book page 6282.

[113] Cited with approval by Gordon and Edelman JJ in Bosanac, supra, at [92].

[114] Galati v Deans [2023] NSWCA 13 at [1].

[116] Frazer v Walker (1967) 1 AC 569 at 585.

[117] Land Law Peter Butt 6th Ed 2010 paragraph 2103.

[118] Property Law in Practice, paragraph 2.220, Oughtred v Inland Remedy Commissioners [1959] UKHL 3; (1960) AC 206 at 240.

[119] Franklin's Pty Ltd v Metcash Trading [2009] NSWCA 407; [2009] 76 NSWLR 603 at [544]; Caringbah Investments Pty Ltd v Caringbah Business and Sports Club Ltd (in liq) [2016] NSWCA 165 at [73]; Brackenridge v Bendigo and Adelaide Bank Ltd [2021] SASCA 129 at [148]; Bosanac v Commissioner of Taxation [2022] HCA 34 at [21], [32], [37]-[38] and [127].

[120] Australian Karting Association Limited v Karting (New South Wales) Incorporated [2022] NSWCA 188 per Gleeson JA at [129].

[122] McCann v Switzerland Insurance Australia Limited [2000] HCA 65; (2000) 203 CLR 579 at 136.

[125] Love D&V XOXO Pty Ltd (Receiver and Manager Appointed) v Vlahos [2025] NSWSC 230 per Nixon J at [119].

[127] Australasian Annuities Pty Ltd (in liq) v Rowley Super Fund Pty Ltd [2015] VSCA 9 at [228] to [229].