Irvine v Dowling

The facts

1. With minor exceptions, the facts were not in dispute. It is convenient to commence these reasons by setting out the Court's chronological findings of fact. In what follows, where any reference is made to findings on contentious matters, they are cross-referenced to that part of the of the judgment where reasons for the finding are given. To the extent that any other facts set out below were not agreed by the parties, I am satisfied on the balance of probabilities that they could not be sensibly disputed.
2. The first round of litigation following the death of Verdun comprised four sets of proceedings, including family provision claims by Elizabeth (ultimately not pressed) and Verdun's widow, Enid. These were resolved by a judgment of Cohen J delivered on 14 October 1994 (the "Family Provision Judgment"), the effect of which was summarised by Johnson J in Dowling v Irvine [2005] NSWSC 531 (the "Possession Judgment") in a passage which I respectfully adopt: "4. [Elizabeth], as Executrix of the Estate of the late Verdun John Irvine, is the registered proprietor of "Lowery". As such, [Elizabeth] holds "Lowery" on trust for the beneficiaries of the Estate of the late Verdun John Irvine. The beneficiaries are the three siblings - Robert John Irvine, [Elizabeth] and [Max]. 5. On 14 October 1994, Cohen J, in Equity Division proceedings No. 2009 of 1993 and No. 4253 of 1993, made orders pursuant to the Family Provision Act 1982 which, inter alia: (a) confirmed [Elizabeth] as the Executor and Trustee of the Estate of the late Verdun John Irvine; (b) created a life tenancy in the southern part of "Lowery" in favour of Enid Ruth Irvine, the widow of Verdun John Irvine; (c) ordered that, in lieu of the benefits to which [Max] was entitled under the Will of Verdun John Irvine, [Max] is to receive 45% of the residue of the estate of Verdun John Irvine. 6. Accordingly, as a result of the orders of Cohen J, [Max] was entitled as beneficiary to 45% of the residue of the estate of the late Verdun John Irvine and [Elizabeth] and Robert John Irvine were entitled to 27.5% each. The principal asset in the estate was and remains "Lowery". …. 8. Enid Ruth Irvine died on 29 June 2002 having made her last Will on 2 April 1993. Administration of the Estate of the late Enid Ruth Irvine was granted to [Max] on 23 July 2004. 9. Between 1994 and June 2002, [Max] and the late Enid Ruth Irvine operated a partnership business on "Lowery" grazing livestock, growing crops and removing timber. 10. In 1998, "Lowery" was subdivided and the northern part was sold pursuant to orders made by Cohen J on 14 October 1994. Thereafter, [Max] and his mother continued to farm and maintain the remaining southern part of "Lowery" in which the mother had a life interest. … 11. Following the death of Enid Ruth Irvine on 29 June 2002, [Max] has remained in occupation of "Lowery". [Max] does not reside at "Lowery" but lives in XXXX Street, Toogong. He uses "Lowery" for agricultural purposes."
3. Max's continued use of the Property after Enid's death led to a dispute with Elizabeth, in her capacity as executrix of the Estate. On 19 November 2004, Elizabeth instituted proceedings against Max in this Court for possession of the whole of the Property. For the reasons set out in the Possession Judgment, on 3 June 2005 Johnson J made orders in Elizabeth's favour for possession of the Property and restrained Max from re-entering the Property other than for the purpose of attending an auction of the Property or with Elizabeth's consent.
4. Elizabeth obtained possession of the Property on 31 August 2005. The detail of what happened thereafter is not relevant. A public auction scheduled for 30 May 2008 did not proceed due to a caveat lodged by Max. No further attempt was made to sell the Property at this time, with the three siblings eventually coming to a modus vivendi of Max and Elizabeth (in her personal capacity and as executrix of the Estate) using the Property for the benefit of them all. Robert did not take an active farming role.
5. In or around early 2014, there was what Elizabeth and Max agreed was a casual conversation between the three of them about putting in place an arrangement whereby the three siblings could bid to purchase the Property, thereby ensuring the Property remained in the family.
6. On 12 September 2014, Elizabeth saw a conveyancer, Ms Sonia Doherty, but at that time did not give Ms Doherty any instructions to prepare a contract. Ms Doherty did not receive further instructions from Elizabeth until March 2016 (see paragraph [27] below).
7. In early 2015, discussions continued between the siblings as to the sale of the Property. The result of those discussions was subsequently reduced to writing in the form of the Agreement.
8. Elizabeth had the Agreement prepared with legal assistance (not by Ms Doherty) as a typed document. It was signed by Robert and Elizabeth on 11 February 2015 and provided: "AGREEMENT The Property and the Estate of the late V.J. Irvine All three beneficiaries of the Estate of V.J. Irvine namely Robert John Irvine, Maxwell Charles James Irvine and Elizabeth Ruth Dowling agree that in consideration of the Executor, Elizabeth Dowling agreeing to refrain from selling Lowery at Public Auction the beneficiaries agree that they will hold a private auction between themselves for the purchase of Lowery as they each acknowledge a desire to keep the property in the family and all parties are desirous of owning the property. All bids are to be in writing and are binding on the bidder. The bids to be delivered by hand or email to each of the other parties. No party to this agreement will make any objection to the Executor, Elizabeth Dowling making a bid and if she makes the winning bid it is agreed that it will not be a breach of her executorial duties that she purchase Lowery. Any bid must be made within 48 hours of the previous bid, in the event a further bid is not received within 48 hours the last bid placed will be the winning bid. Following a winning bid being accepted by the Executor the purchaser will execute a contract (sic) a Contract of sale and the contract will provide that settlement will take place within four weeks of acceptance of a winning bid for a sale price equal to the winning bid. Upon a winning bid being accepted by the Executor a deposit of $10,000 will be paid to the Executor to hold on trust for the Estate until settlement. Settlement is to take place with (sic) 4 weeks of the final bid being received. All parties are advised to seek independent legal advice."
9. Shortly after she and Robert had signed the Agreement, Elizabeth asked her husband, Richard Dowling, to go to Max's house and have him sign the Agreement. Max said he would only do so on terms. Max did not sign the Agreement at that time. Richard returned home and made this diary note of his discussion with Max: "Discussion with Max re Agreement He wants: $81K owed to [Enid Ruth Irvine] happy to round to $81. Liz is to pay $25K from probate $71K for contracting Bank balance approximate Toogong blocks for him [Max] Cudal to Liz + Rob Agistment calculated at finish"
10. The references to "Toogong" and "Cudal" in the preceding paragraph are to additional property owned by Verdun, both forming part of the assets of the Estate. Although the Property was (and is) the main asset of the Estate, discussions between the siblings in recent years have included reference to the Toogong and Cudal properties, as well as other assets of the Estate (such as cash at bank). These other assets are not the subject of the current dispute and not something about which the Court has been required to make a determination.
11. Richard and Max had several discussions over the next year, the main topic of which was various demands Max had about the winding up of the Estate. This included conditions for the proposed contract of sale that the successful bidder for the Property would enter into. In or around July 2015, Richard typed up a list setting out the purported position of the Estate and Max's conditions, and took them to Max. He told Max that if the list was an accurate reflection of the position they had reached, Max should sign the Agreement to enable the family auction of the Property to proceed. Richard's list, which I will refer to the as the "Estate Position Statement" was: POSITION OF THE ESTATE AT 31 DECEMBER 2015 WITHOUT PREJUDICE Assets of the Estate Bank balance approx. $30,808.12 Boree St Cudal Unknown Barrack St Toogong Unknown Liabilities of the Estate Rural Assistance Authority $70,000 Owing to ER Irvine Estate $81,000 Monies owed to the Estate Agistment Max $40,218 Liz $73,097 Loan to Liz $25,000 Monies owed to Max Max's claim $71,000 Monies owed to Liz/Richard Invoice exceeding but say $75,000 7,160t Biosolids 2008 $25,518 TERMS FOR PRIVATE AUCTION Cudal block be transferred to Robert and Liz Toogong blocks be transferred to Max"
12. Max still did not sign the Agreement.
13. It appears that discussions between the siblings waned in the second half of 2015. However, there is no dispute that on 23 February 2016, Richard attended Max's home and that, on this occasion, Max signed a counterpart of the Agreement. Max contends he signed the Agreement subject to a number of conditions.
14. Mr Ellison SC submitted for Max that the Agreement was evidenced by the two signed counterparts (one signed by Robert and Elizabeth on 11 February 2015 and the other by Max on 23 February 2016), together with the Estate Position Statement. All parties agreed that the Agreement was valid and binding, and Elizabeth and Robert did not dispute that the Estate Position Statement was part of the Agreement. It is not necessary for the Court to make any finding about the status of the Estate Position Statement because the real issue in dispute presented for resolution by the parties was whether Elizabeth was entitled to purchase the Property pursuant to the Agreement.
15. On 10 March 2016, Elizabeth instructed Ms Doherty to prepare a contract for the sale of the Property. On 18 March 2016, Ms Doherty provided Elizabeth with a draft contract.
16. On or about 6 May 2016, on receipt of further instructions from Elizabeth, Ms Doherty provided a final draft contract for sale to Elizabeth (the "Sales Contract") which the Court finds complies with the Agreement. There was more than one draft prepared by Ms Doherty and there was some confusion in the evidence about the final form of the document provided to Elizabeth. Ultimately nothing turns on this. However, based on Elizabeth's evidence and Ms Doherty's evidence (the latter was not cross-examined), the Court finds the Sales Contract included provision for a 28 day settlement, a $10,000.00 deposit and was for both the Property and the water allocation licence associated with the Property (searches for both were attached to the Sales Contract). It also included special condition 37 for the payment of interest, to which further attention is given below (see paragraphs [151]-[155]). Ms Doherty also provided Elizabeth with a list of instructions of what to do when the "purchaser" of the Property was determined: "WHEN THE BUYER HAS BEEN DETERMINED THE BUYERS (sic) NAME IN FULL AND ADDRESS IS WRITTEN ON BOTH COPIES OF THE FRONT PAGE WHERE INDICATED THEIR SOLICITORS / CONVEYANCERS / LEGAL REPRESENTATIVE DETAILS ARE INSERTED WHERE INDICATED THE PRICE TO BE INSTALLED (SIC) THE BALANCE, PRICE LESS $10,000 TO BE INSERTED THEN THE PURCHASER TO SIGN AS PURCHASER ON COPY WITH CROSS NEXT TO PURCHASER VENDOR TO SIGN AS VENDOR ON COPY WITH CROSS NEXT TO VENDOR THEN YOU INSERT THE DATE THE CONTRACTS ARE SIGNED BY BOTH PARTIES. YOU HAND THE PURCHASER THE CONTRACT SIGNED BY THE VENDOR RETURN TO ME THE CONTRACT SIGNED BY THE PURCHASER"
17. At some stage prior to 10 May 2016, Max, Elizabeth and Robert came to the Verbal Bid Agreement, being an oral agreement that an auction (the "Private Auction") would take place between them with their bids for the Property being made verbally. I do not accept the submissions made for Elizabeth and Robert that the Private Auction was a non-binding occasion to negotiate about indicative bids, but nothing turns on this because of the view the Court has taken that the Verbal Bid Agreement is unenforceable (see paragraphs [131]-[135] below).
18. The Private Auction took place on 10 May 2016. Max and Elizabeth met in person at the Property, with Richard and various members of Max's family also in attendance. Robert participated in the Private Auction by listening in on Richard's mobile phone.
19. All of the bidding at the Private Auction was verbal. It was common ground that Robert dropped out of the bidding first, leaving it to Max and Elizabeth.
20. Elizabeth made a bid of $2,300,000. The Court is satisfied that this was then superseded by Max with a bid of $2,400,000.
21. Elizabeth then countered with a bid of $2,500,000, following which Max shook Elizabeth's hand, said words to Elizabeth to the effect of "Congratulations, it's yours" and left the Property. The Court is satisfied that even if Robert did not hear in real-time Elizabeth's successful bid of $2,5000,000, there can be no doubt that he was made aware of it. It was left unchallenged by all parties that no further bidding took place that day, and I accept it as inherently likely that Richard, who had been acting as a conduit for Robert all day, would have informed him of the outcome.
22. It was common ground that on 10 May 2016: 1. No written offers were made; 2. Elizabeth did not pay the $10,000.00 deposit; and 3. No written contract for sale of the Property was entered into.
23. Max and Elizabeth had a discussion the next day, 11 May 2016. There was a dispute in the evidence as to the details of everything said on this occasion, but again nothing turns on this. However, it was common ground that Elizabeth informed Max she no longer wanted to pay $2,500,000 as it was "too much" and that there were subsequent discussions about next best offers.
24. The detail of what happened next is not relevant, because there was no dispute that on 18 May 2016 Elizabeth gave Max, in writing, an offer to purchase the Property for $2,300,000.00 (the "Written Offer"): "In accordance with the agreement signed by Robert and me on 11 February 2015 and signed by Max on 23 February 2016, I offer $2,300,000 for the purchase of the Property. Elizabeth Dowling Elizabeth Dowling 18th May 2016 9 AM"
25. The text reproduced in italics above was handwritten, the balance being in typescript.
26. On 19 May 2016, Max sent an email to Elizabeth and Richard, with a hard copy of that email also placed in Elizabeth's letterbox. The email said: "To Liz & Richard Dowling The agreement in which you made at the family action (sic) and accepted on the 10/05/16 was 2.5 million. No other offers were made by you or Robert within the 48 hour period that followed. However, we may accept your bid of 2.3 million made on the 18/05/16 with the following conditions; 1. The property is only to be put in [Elizabeth Ruth] Dowling name 2. Full lists of assets and liabilities to Robert and Max as to date 3. Guarantee that there is no executor fees in writing 4. The blocks at Toogong be transferred to Max 5. Max's share of the block at Cudal be transferred to Robert and Liz 6. Copies of all Bank statements from the NAB as well as all copies of statements from the rural assistance authority to Robert and Max as to date 7. Each beneficiary needs to be notified in writing their share of monies in final distribution of the estate before the sale of the property 8. Robert and Max need to approve these conditions before the sale goes ahead"
27. There was no evidence of Elizabeth's reply to the above correspondence. However, on the basis of the events that occurred thereafter, I am satisfied - and certainly on the balance of probabilities - that Max never communicated that he accepted Elizabeth's Written Offer.
28. On 27 May 2016, Max lodged a caveat over the title to the Property, claiming an "equitable interest as a beneficiary of the estate of the late Verdun John Irvine". I accept Max's evidence that this was because he was concerned Elizabeth intended to sell the Property to herself pursuant to the Written Offer, a course to which he did not agree. The caveat was ultimately withdrawn on 27 July 2016.
29. On 27 June 2016, the solicitors then engaged by Max, BJ Macree, wrote to Elizabeth stating that "our client has handed us a form of agreement that in its present form and detail is unsatisfactory" and requesting that she retain a legal representative "with whom we can discuss and hopefully come to agreement that will ensure the estate is finally distributed and accounted for without further cost and delay". On the basis of evidence given in cross-examination and in light of Elizabeth's reply (set out in the next paragraph), I accept that the "form of agreement" referred to in BJ Macree's correspondence is the Agreement.
30. On 7 July 2016, Elizabeth responded to BJ Macree: "I have your letter of 27th June 2016 which was not received until 4th July. I am enclosing a document that your client signed on 23rd February 2016. We are unable to complete the sale as your client has lodged a Caveat on the property Lowery. I have submitted a further agreement to your client to finally distribute the estate. Please advise in writing as to the changes you want to the deed and I shall consider them. I do not wish to go to the expense of retaining a solicitor at this time as the Estate has had too many legal expenses and the costs of retaining a solicitor and having a new solicitor understand what has occurred in the past is too high and will be born 45% by your client. I am consulting direct access with a barrister who has a knowledge of what has occurred since the death of my late mother in 2002, I shall put all amendments to the barrister for approval."
31. Elizabeth's evidence is that the "further agreement" referred to is a document entitled "Family Agreement", which provided: "FAMILY AGREEMENT THIS AGREEMENT is made between MAX IRVINE, ROBERT IRVINE AND ELIZABETH DOWLING WHEREAS 1. The parties to this agreement are the beneficiaries of the Estate of the late Verdun John Irvine who died on…… 2. Elizabeth Dowling is the Executor of the Estate of the late Verdun John Irvine appointed pursuant to his Will dated…… 3. The terms of the Will have been altered by certain Court orders made by consent and by order of the Supreme Court of New South Wales. 4. The parties have agreed that Elizabeth Dowling is entitled to purchase the property known as ……. being the whole of the land contained in ……. for the sum of $2,300,000. 5. All parties have examined the contract of sale between the Estate and the said Elizabeth Dowling and agreed to its terms. 6. The true financial position of the Estate is as set out in the Annexure to this Deed. IN CONSIDERATION OF THE PROMISES AND AGREEMENTS SET OUT ABOVE THE PARTIES AGREE A. That upon the sale of Lowery to Elizabeth Dowling, Elizabeth Dowling will distribute the estate finally to the parties in accordance with their entitlements under the Will and the Court Order made in Family Provision proceedings and in accordance with the promises set out below. B. That the financial position of the Estate is in accordance with the Annexure to this Deed and no party will make any further claims in relation to the facts set out in the Annexure and will take no legal or other action against the Executor personally or against any other party to this deed in relation to the assets and liabilities set out in the Schedule or the correctness of the Schedule. C. The parties agreed that they will not take any legal action against the Estate, the Executrix personally or any beneficiary in relation to the Estate of the late Enid Ruth Irvine. D. The parties agree that any monies owed by the Estate to any beneficiaries be offset by any monies owed to the Estate by any beneficiaries as the attached Statement of Position which is annexed to this Deed and the terms set out below 1. That all beneficiaries have access to any bank statements or financial records including records of any assets and liabilities they may seek; 2. That the Executor of either estate will not charge any commission; 3. Max Irvine will pay to each of Robert Irvine and Elizabeth Dowling $80,000 which shall be deducted from his entitlement on settlement 4. That Robert Irvine will receive the portable cattle yards now situate on The Property; 5. That the two blocks owned by the estate in Barrack St Toogong be transferred by the estate to Max Irvine at the expense of Max Irvine. 6. The block in Boree St Cudal, the property of the estate be transferred by the Estate to Robert Irvine and Elizabeth Dowling at their expense; 7. That the estate transfer Lowery to Elizabeth Dowling at a price of $2,300,000 in accordance with the terms of the Contract of Sale which is mentioned above provided that her share of the estates and the payment in 3 above is offset against the purchase price. …" A. Each party to this agreement has been given the opportunity to obtain separate legal advice in relation to this Agreement. B. This agreement is executed as a Deed. C. This agreement may be pleaded as a bar to any action taken by any part to this deed against the other. D. Max Irvine and Robert Irvine agree that Elizabeth Dowling has completed her executorial duties in a proper manner and will make no claims against her in relation to any funds expended or actions taken by her in completing her executorial duties and indemnify her against any claims made by any party to this Deed. E. The parties agreed that the terms of this Deed and the performance of its terms will satisfy all of their entitlements pursuant to the terms of the Wills of the late Verdun John Irvine and Enid Ruth Irvine and any Court orders made in relation to their estates and the assets of their estates."
32. There was a dispute in the evidence as to whether a copy of this "Family Agreement" was ever given to Max (directly or via his solicitors). Mr Ellison SC submitted on behalf of Max that only one document was attached to the 7 July letter, being a copy of the counterpart to the Agreement signed by Max. This was said to be evident when considering Elizabeth's further letter of 12 July 2016. It appears that before receiving her letter of 7 July, BJ Macree had sent a follow-up to their June correspondence. On 12 July, Elizabeth responded and informed Max's solicitors she enclosed "a copy of my letter and document sent to you on 7 July 2016" (emphasis added).
33. Elizabeth accepted that the document re-sent on 12 July appeared to be the Agreement only, with no reference to the Family Agreement (T229.39-230.1), and that no subsequent correspondence in these proceedings refers to the Family Agreement (T230.43-46). That concession was wrongly made. Though admitting she couldn't clearly remember, Elizabeth was adamant that she would have sent a copy of the Family Agreement to Max's solicitors (T228.14-19, 230.25-32, 230.50-231.16, 233.4-17). The Court is not satisfied a copy of the Family Agreement was provided to Max personally or through his solicitors until some time later because, contrary to Elizabeth's concession, it is referred to in Max's solicitors' correspondence of a year later (see paragraph [53] below). Again nothing turns on this because it was not suggested the Family Agreement was ever agreed to by anyone.
34. In any event, on 1 September 2016, Elizabeth commenced a new series of correspondence with Max's solicitors, BJ Macree: "I note that you are acting for Maxwell Charles James Irvine in this matter. I am the executor of the Estate of the late Verdun John Irvine and I am attempting to finalise the Estate. Your client is a substantial beneficiary of the Estate, but he does not appear to have any interest in seeing it finalised. This is causing substantial expense to the Estate. On 23rd February 2016 the beneficiaries came to an agreement in relation to the sale of a substantial asset of the estate, a property known as "Lowery" which was the deceased's family property. The idea was to retain the property in the family. A copy of the counterpart of that agreement signed by your client is enclosed. An offer to purchase "Lowery" was made by me on 18th May 2016 at 9am and no higher offer has been received. No other bid had been received from any other person. I am enclosing a copy of the offer. I wish to go ahead and transfer the property into my name and finalise the Estate. The estate will be the beneficiary of the $2,300,000. I do not wish to incur the costs of the Transfer and finance if there is to be an objection by your client. Please advise if your client has any objection to this course. If he does wish to object please advise the reason for his objection. If I do not hear from you within seven days I shall proceed with the Transfer on the basis that your client does your object…."
35. BJ Macree replied on 6 September 2016: "We confirm that we act for Maxwell Irvine. Your letter dated 1 September 2016 was received at this office today and we are instructed to reply as follows: Our client objects to the transfer of the property to yourself as proposed in your letter. We are instructed that the day following the private auction referred to in the agreement that was attached to your letter, you withdrew your offer of $2,500,000. In any event if the property is to be sold it is out client's wishes that the market be tested and the best offer be obtained by the property being offered for sale at public auction. Further, our client is concerned as to the manner by which estate monies have been dealt with since his father's death. He requests that you make available to him all of the accounts of the estate for his inspection. If you do not agree to this course our client may seek to have an enquiry undertaken through the court process. …"
36. I infer that the response provided by BJ Macree (notably Max's explicit objection to the transfer of Lowery to Elizabeth) led Elizabeth to file a notice of motion on 16 November 2016 in the 1992 proceedings in which she was granted probate of the Estate, seeking judicial advice on questions including: "A. Whether [Elizabeth], as executrix of the Estate would be justified in purchasing the property Lowery from the Estate for the sum of $2,300,000. B. Whether [Elizabeth], as executrix of the Estate is bound by her offer to purchase the property Lowery from the Estate for the sum of $2,300,000. C. In the event that the answer to A and B are in the negative, whether [Elizabeth] would be entitled to bid at an auction of Lowery. …"
37. The motion came before Lindsay J on 5 December 2016, who made orders and notations which included: "2. NOTE that the subject matter of the motion is a dispute between the plaintiff and her two siblings (namely, Robert John Irvine and Maxwell Charles Irvine) about the proper disposition of land which comprises the principal asset of the estate, and about whether the plaintiff is entitled to perform an alleged agreement (made between the three beneficiaries) for her to purchase the land. 3. ORDER that the plaintiff's application for judicial advice (by the notice of motion filed 16 November 2016) be dismissed, but subject to directions for any dispute between the parties to be determined on notice to all beneficiaries. 4. ORDER that the plaintiff be at liberty to file a summons (naming herself as plaintiff and her siblings as defendants) returnable before the Probate Registrar on 5 February 2017 claiming such relief as she may be advised to claim in the nature if the relief sought on p.8 of the statement of facts filed 16 November 2016 [This is a reference to the questions posed that are set out in paragraph [48] above], such summons to be filed in fresh proceedings. …"
38. Elizabeth did not exercise the liberty granted by Lindsay J to commence fresh proceedings to enforce the Agreement.
39. However, it was Elizabeth's evidence that she went on to pay the $10,000 deposit in relation to her Written Offer, alleging that two instalments of $5,000.00 were made to the Estate's bank account on 29 December 2016 and 3 January 2017. Elizabeth accepted that at some later point this $10,000.00 was appropriated for agistment monies she owed to the Estate (T165.30-36), and that she re-paid the deposit in October 2018. I do not accept the 2016 and 2017 instalments were ever intended as payment of the deposit. For the reasons set out in paragraphs [81] and following below, I am satisfied the earlier payments were always intended as payment of agistment fees.
40. There is no other evidence of what happened after Lindsay J's directions until, on 15 May 2017, Max's new solicitors, King Cain, wrote to Elizabeth threatening an application to the Court for her removal as an executor and seeking an undertaking "that you will not take any steps to sell [Lowery] prior to providing a full and proper accounting of your administration of the estate and allowing time for review of that by our client and confirming by our client". The letter, which proposed a deadline for response of 31 May 2017, also invited Elizabeth to agree to participate in a mediation to endeavour to finalise the administration of the Estate by agreement.
41. Elizabeth responded to King Cain's letter by email on 7 June 2017. A copy of this email was not in evidence, however I accept a response of that date was provided because it is referred to in Max's solicitors' reply on 20 June 2017: "Thank you for your email of 7 June 2017. We note you do not wish to discuss this matter on the telephone. We have a copy of a document headed 'Agreement' dated 11th of February 2015. We are instructed that its terms were not complied with and in any event, the document probably fails for lack of consideration. There is no 'contract already agreed between the parties'. We have been provided with a copy of a document headed "Family Agreement" which sets out certain provisions regarding purchase of the property by you for $2,300,00.00. Attached to that document is an annexure headed "Position of Estate as at 31 May 2016". Our client does not accept the estates (sic) position as outlined in that document. He has issues with the expenses claimed as he has not seen documentation supporting the claims. He also wants an accounting of the estate cattle and a cash management account that totalled $150,89.71 (sic) in March 2004. The issues between you have remained unresolved for a long time. Our client does not agree to the 'sale' of the property to you, and could not, as you have not provided any certainty of the distribution he will receive if that sale went ahead. At best, you have given an estimate in a document marked 'without prejudice'. We had hoped that a phone conversation may have helped in identifying if the issues could be narrowed and a way in which they might be resolved. As you don't want to have the telephone conversation, our client again asks that you agree to attend a mediation to try to avoid the cost of further litigation. A formal mediation before an Accredited Mediator where the parties are proactive in trying to reach a resolution should be the most economical and expeditious way to try and complete the administration. Please advise us whether you will agree to take part in mediation. If we do not have your agreement to that by Friday 23rd June 2017 we will presume that you do not agree and we will advise our client of the course of action/s we consider that remain available to him to secure his entitlement".
42. Elizabeth responded to King Cain on 23 June 2017: "I note that your client does not consent to me purchasing the property for $2,300,000. Would you please advise whether your client will be prepared to consent to a sale by Public Auction. I will require a consent from him that he will vacate the property for that purpose. If your client wishes to purchase the property at Public Auction he will be entitled to do so if he is the highest bidder. Any beneficiary will be entitled to purchase at public auction and the property will be sold to the highest bidder. If your client wishes an accounting we shall lodge accounts with the Probate Office in the normal course with a Motion for Executor's commission to be paid to me. I am not quite sure what issue your client wishes to mediate and do not wish to have the Estate involved in any more legal costs. Please advise me of your clients (sic) response by Wednesday 28th June 2017."
43. On 28 June 2017, King Cain answered Elizabeth's letter: "We refer to your letter of 23rd June 2017. We do not have instructions from our client to consent to a sale by public auction. Our client is considering the matter. We will advise you of our instructions when received."
44. Elizabeth subsequently replied to King Cain on 11 July 2017. As is made clear in the letter, Elizabeth recorded Max was not willing to consent to her buying the property for $2,300,000.00 (that is, pursuant to her Written Offer) and, in light of this, Elizabeth proposed to either "re-open" the private auction process between the siblings or proceed to public auction: "I note that your client's position now is that 1. He has not responded to my email of 23rd June 2017. 2. He will not consent to me buying the property for $2,300,000. Robert Irvine, who is also a beneficiary of the Estate has expressed his desire to have the Estate finalised as soon as possible so that he can receive his share of the proceeds of the sale as soon as possible. In order to reach a resolution and as all parties agreed that the property be sold to one of the beneficiaries I am prepared to reopen the bidding for Lowery in which case your client will need to better my bid of $2,300,000. Robert Irvine, whilst being dismayed at the need for another private auction, agrees to this action so long as the sale proceeds quickly. If your client does not agree to pay more than $2,300,000, Robert has expressed his wishes for the sale of the property to proceed at $2,300,000 to me or at my direction. I would suggest that your client make a higher bid in writing within seven days, i.e. by 4pm on 18th July 2017. In the event your client makes a higher bid than $2,300,000 within seven days he will be deemed to have consented to me purchasing the property if I make a higher bid than his bid. Any other beneficiary has the right to make a further bid in writing within 24 hours and that is to continue until such time as there have been no more bids for a period of 24 hours. Once the bidding has stopped the highest bidder will have to sign the agreed contract and pay the deposit and settle in accordance with the terms of the contract. I am prepared to sell the property via public auction to have the matter finalised to satisfy all beneficiaries… However, if your client fails to respond Robert has advised me to proceed with purchasing the property and finalising the Estate. As for the Estate accounts, your client has been satisfied with the information that he received up until he failed to win the private auction. His position since has been an offer to withdraw all action and complaints if I sold him the property for $2,200,000. Any questions relating to the accounts will be dealt with by me passing the accounts through the Court for verification and I shall then apply for commission. Please advise me if your client will be placing a further bid by 4pm on 18th July 2017."
45. On 13 July 2017, King Cain wrote to Elizabeth: "We acknowledge receipt of your letter of the 11th July 2017. We have referred your letter to our client for instructions. You have nominated a deadline for a response and proposed that should you not receive it, our client will be deemed to have consented to your purchasing the property. That is not the case and you are not entitled to that assumption. Our client's consent to you purchasing the property for $2.3 million has not been given. The difficulty for our client on your proposal remains the lack of information supplied on the accounts and no clear determination from you on the estate expenses to date or the final estimate estate expenses. At the least that needs to be provided so our client can determine the likely share of the distribution to him of his entitlement to the residue. Our client does not call on you to file estate accounts at this time, but does call on you to provide up to date accounts of the estate. You are obliged to do that on request from a beneficiary."
46. Based on the correspondence in evidence, the parties' attention then appears to have turned to focus on the provision of the Estate accounts by Elizabeth to Max. She provided these in or around December 2017, and an inspection of the Estate accounts took place at the offices of King Cain. On 18 December 2017, King Cain wrote to Elizabeth: "We confirm that an inspection of Estate accounts from 2008 to date took place at our office on 14 December 2017. Mr & Mrs Irvine [this is a reference to Robert and his wife, Lynne] remained in the office throughout the inspection and documents were returned to them following inspection. Our client's Accountant is preparing his Report on the accounts presented. If he has any queries we will forward them to you for a response. You have not provided accounts from the date of death of the late VJ Irvine. Our client again calls on you to provide those accounts for inspection. You stated in your letter of 30 November 2017 that you are working towards finalising the affairs of the Estate. You have not indicated when or how you intend to complete that. Following advice, our client intends to commence proceedings for a Statement of Claim in the Supreme Court for Orders including an Order that the Grant of Probate to you be revoked and Letters of Administration CTA in respect of the Will and Codicil be granted to our client. We enclose a copy of the Statement of Claim for your information. It has not been filed. Further Court proceedings will add expense to our client and the Estate. Our client would prefer this not happen. We are instructed to file the Statement of Claim on 15 January 2018. Our client will refrain from commencing proceedings if you: 1. Advise prior to 15 January 2018 that you will take immediate steps to complete administration of the Estate prior to 31 January 2018; 2. You advise how you propose to complete the administration; and 3. You present Estate accounts from the date of death - 2008 for inspection by our client."
47. Elizabeth replied on 20 December 2017: "Thank you for your letter of 18 December 2017 and draft Statement of Claim. I am somewhat perplexed by the timing of this correspondence. With few business days until Christmas and most offices closed until 8 January 2018. Appointments are difficult to obtain before 15 January 2018. Your client's instruction to you in drafting a Statement of Claim seems somewhat premature given we have not received any response from your client's accountant following inspection of the Estate financials on 14 December 2017. The accounts prior to 2008 have already been submitted to your client, his auditor and solicitor at the Supreme Court in 2007. I strongly disagree with the contents of the draft Statement of Claim. Legal costs are of great concern to me and have been discussed with Robert and Maxwell on many occasions."
48. Max commenced these proceedings by filing his Statement of Claim on 15 January 2018.
49. Apparently unaware that Max had instituted proceedings, Elizabeth again wrote to King Cain on 17 January 2018: "Further to your letter of 18 December 2017 and draft Statement of Claim. Please be assured that my first priority is to finalise the Estate as quickly as possible which involves the sale of all Estate assets. In view of the draft Statement of Claim would you please confirm that your client now has no desire for the property Lowery to stay in the family. However, if your client still feels it is preferable that the property stay within the family I am prepared to reopen negotiations for its' (sic) purchase by one of the beneficiaries. In the event your client is not interested in participating in such negotiations I will proceed to list the property for public auction forthwith."
50. On 23 January 2018, King Cain responded: "Thank you for your email of 17 January 2018. We advise that following instructions we did file the Statement of Claim with the Supreme Court. We had instructed a Process Server to effect service. Following receipt of your letter we have instructions to withhold serving the Statement of Claim in view of your advice of your intention to finalise the Estate as quickly as possible. We are instructed our client would like the property "Lowery" to stay in the family and for this purpose would like the opportunity of purchasing the property. You have indicated that in such event you are prepared to reopen negotiations. Please advise: 1. The format you propose for negotiations; 2. Who in the family, if anyone else apart from our client, is interested in purchasing the property; 3. If there are competing interests, how do you propose they be dealt with in order for you as the Executrix to make a decision on a sale? 4. Full details of outstanding liabilities that you consider are to be paid by the Estate from any sale proceedings, before distribution to the beneficiaries. This information needs to be complete and accurate to enable beneficiaries to calculate the likely distribution to themselves which may have a bearing on any offer they make. Our client is encouraged by your desire to complete the administration of the Estate and is prepared to withhold serving any Court process providing the arrangements for completing the administration are progressed without delay. Please let us have your advice on your proposed arrangements for sale of the Estate assets, particularly the property "Lowery"."
51. I pause to note that although it is clear Robert had not played an active role in any discussions with Max (or his solicitors) to this point, I accept that Elizabeth was keeping her eldest brother abreast of developments. I infer that Elizabeth must have shown or informed Robert of the contents of King Cain's correspondence of 23 January, because on 29 January 2019, Robert sent Elizabeth an email stating his "strong disagreement" to any re-negotiation of a private auction with Max: "I thought that we had an (sic) negotiated an agreement, in writing, between the three beneficiaries re the sale of Lowery, however, as Max no longer acknowledges that then I strongly disagree with any attempt for a re-negotiation. I will definitely not be a party to it. Please make sure that this is made known to Mr Carver and his client."
52. It appears that King Cain sent a further email on 25 January 2018, however a copy of this email was not in evidence. Whatever its contents, I infer the correspondence set a deadline for Elizabeth of 5.00pm 30 January 2018. So much is apparent from the response Elizabeth provided to King Cain on 30 January 2018: "Your client's recent actions and the deadline of a response by 5.00pm today (your email of 25 January 2018), indicate to me that a settlement within the family is extremely unlikely to succeed, I also inform you that I have received a written objection to any further negotiations from our eldest brother Robert (a copy of which is attached) [This is a reference to the email set out in paragraph [63] above]. I propose to list Lowery for sale by public auction, I am currently seeking advice and obtaining quotes from suitable selling agents for all property owned by the Estate and as soon as one is chosen you will be informed. Please be advised that with regards to Boree Street Cudal, I have for some time now been gathering appraisals and seeking interested private buyers due to high selling costs. As to the position of the Estate it is impossible to provide until all Estate assets are sold."
53. In cross-examination, Elizabeth accepted it was a fair and reasonable reading of her 30 January 2018 correspondence that, in evincing her intention to list Lowery for public auction, she was now walking away from whatever agreements may have previously been in place between the siblings (T149.4-36). In accepting this proposition, Elizabeth remained resolute in her evidence that the contents of the letter were only ever intended as an offer to settle the litigation now on foot (T176.7-11). Importantly for present purposes, there is no suggestion that Max, who apparently now wanted to reopen the private auction process (see his solicitors' letter in paragraph [62] above), ever communicated his agreement to Elizabeth's 30 January 2018 indication that she was listing Lowery for public auction.
54. On 10 April 2018, King Cain informed Elizabeth that they had received a letter from Max's accountant outlining questions in relation to the Estate account documents inspected on 14 December 2017. For present purposes, it is sufficient to record that a response to those questions was provided in the affidavit of Lynne Heather Irvine (Robert's wife) sworn 19 September 2018. Lynne has assisted Elizabeth in keeping the financial records and accounts of the Estate since 1992.
55. In May 2018, Elizabeth (in her capacity as executrix of the Estate), transferred the Toogong blocks to Lynne for $14,500. This was notwithstanding the purported conditions set out in the Estate Position Statement (see paragraph [23] above) which contemplated a transfer of that land to Max as part of his share of the residue of the Estate, and Elizabeth stating in her affidavit of 21 May 2018 that she had intended this to occur. Elizabeth agreed in cross-examination that she did not discuss with Max his purchase of the land (T133.35-46), nor did she discuss the sale with Max prior to the transfer to Lynne (T133.17-24, T162.25-30).
56. On 4 October 2018, the parties to the present dispute attended mediation. The matter did not settle, but Elizabeth nevertheless decided to pay the $10,000.00 deposit. In her affidavit evidence, Elizabeth explained: "…after the mediation I felt that I should have just completed the sale to myself and consequently I paid another $10,000 deposit to the Estate in two transfers of $5,000."
57. The deposit was paid into the Estate's National Australia Bank ("NAB") account in two instalments of $5,000.00 on 16 October and 17 October 2018. As set out in paragraph [51] above and for the reasons set out in paragraphs [85]-[90] below, I am satisfied these October payments were intended by Elizabeth to be in satisfaction of the deposit referred to in the Agreement and the Sales Contract.
58. Finally, there was uncontested evidence of the value of Lowery. In the course of the proceedings, and as the issues developed, orders were made for the parties to obtain single expert current and historical market valuations of Lowery. Both valuation reports were provided by Messrs Matthew Petty and A. Jamie Gibson of Aspect Property Consultants: 1. "Historical Market Valuation" as at 18 May 2016 (being the date of Elizabeth's Written Offer) of $2,375,200 ($2,230,000 for the property and $145,200 for the water allocation licence); and 2. "Current Market Valuation" as at 13 July 2020 of $4,957,800.00 ($4,740,000 for the property and $217,800 for the water allocation licence).

Credit

1. In addition to each of the siblings, only two other witnesses were called to give evidence at the hearing: Richard Dowling and Lynne Heather Irvine, the respective spouses of Elizabeth and Robert.
2. Each witness called at the hearing was cross-examined, although Richard, Lynne and Robert only briefly. Most of the cross-examination was directed to the evidence of Max and Elizabeth.
3. In final addresses no specific submission was made by Max or Elizabeth on the issue of the credit or reliability of the witnesses, notwithstanding that the Court was told during some of the cross-examination that the relevance of questions put went to credit. In his written submissions of 22 May 2020, Mr Williams made a brief submission on behalf of Robert that Elizabeth's evidence should be preferred to the evidence of Max whenever there was any significant issue, as Max has "very little credibility and will lie whenever it suits him". In support, Mr Williams relied specifically on Max's evidence in cross-examination over incidents involving alleged violence towards Robert, where Max's evidence was said to be contradicted by photographic evidence before the Court. Neither Mr Ellison SC nor Ms Cohen responded to this submission.
4. Although credit was therefore not an issue of serious contention, it is nonetheless necessary for the Court to set out brief observations on the matter.
5. Turning first to Richard and Lynne, I formed the opinion that each presented as an honest witness doing their best to assist the Court. I am satisfied that each gave their evidence in a frank manner, freely admitting to the limits of their involvement in the dispute and of their recollection. At no point was I left with the impression that either Richard or Lynne's evidence was biased in favour of their respective spouses. They were not active parties to the critical events underlying the present dispute, a fact reflected in the limited evidence each was called to give. I note without discourtesy that Richard was in effect left to play the "middle man" between his wife and brother-in-law, a role made necessary due to the animosity between the siblings. As noted in paragraph [66] above, Lynne has assisted Elizabeth in keeping the financial records and accounts of the Estate since 1992.
6. With respect to Max, Elizabeth and Robert, I am satisfied that each of the siblings' evidence was coloured by the years of dispute and disagreement between them. In the Possession Judgment, Johnson J, referring to the earlier reasons of Cohen J in the Family Provision Judgment, made the following observation: "7. Cohen J referred in his judgment (pages 4.8, 13.3, 23.2) to the ill-feeling and bitterness that existed between [Elizabeth] and [Max] prior to and in 1994. Regrettably, it is apparent that those feelings persist and are reflected in the present dispute between the parties."
7. It remains regrettable that both judges' observations are still appropriate. Of the two camps (Max on the one hand, Elizabeth and Robert on the other), neither made any attempt in the present proceedings to conceal their distrust or contempt of the other, or the responsibility they perceived the other to bear in bringing the current dispute to a head. Consequently, there can be no doubt that Max, Elizabeth and Robert remain steadfastly entrenched in what they each assert to be the correct narrative regarding the Agreement, Verbal Bid Agreement, Private Auction and subsequent conduct.
8. However, I stress that this is not to say Max, Elizabeth and Robert were deliberately dishonest witnesses and the Court makes no such finding. Rather, the impression I formed of each sibling was that their recollection of events could simply not be accepted as reliable unless inherently likely, against interest or supported by contemporaneous documentary evidence, because each had clearly persuaded themselves of their version of events and what they took to be the effect of the dealings between them. The commencement of these proceedings was the only way to break the impasse created between them by their mutual intransigence and Elizabeth's (understandable) reluctance to involve the Estate in further litigation.

Contested findings of fact

1. Despite all the issues the parties sought to raise, only one contested issue is relevant, and even then not as a central issue. This was whether and when Elizabeth purported to pay the deposit for the Property.
2. By reference to the findings of fact already set out and what was inherently likely, the Court is satisfied, on the balance of probabilities, of what follows and finds accordingly.

The deposit amount and whether this has been paid by Elizabeth

1. It will be recalled that the Agreement provided: "Upon a winning bid being accepted by the Executor a deposit of $10,000 will be paid to the Executor to hold on trust for the Estate until settlement."
2. I should record that Max sought to make an argument that the deposit was in fact to be 10% of the successful bid. Max signed a counterpart of the Agreement on 23 February 2016 and accepted that document referred to a fixed deposit amount of $10,000.00 (T77.25-26, 77.50-78.1). However, Max asserted that one of the conditions upon which he signed the Agreement was that the deposit amount would be amended to 10 per cent of the successful purchase price. In cross-examination, Max gave evidence that he told Richard $10,000.00 wasn't enough money "to buy a property" and that Richard said he would change it (T.77.12-13, 78.1, 20-21). In support, Max explained "…you could not go to an auction and buy a $2 million or $3 million property for $10,000 deposit. You couldn't do it" (T77.18-20). Further, Max swore in his affidavit of 12 July 2019 that the version of the Sales Contract he was allegedly provided in March 2016 had no deposit price inserted but retained the pro forma instructions "10% of the price, unless otherwise stated" (see also T75.44-45, 76.4-6).
3. Elizabeth submitted the deposit amount was $10,000.00, relying on the statement of this amount in the Agreement and the version of the Sales Contract she said (and which the Court has accepted - see paragraph [28] above) to be the final version. Robert did not make submissions or give evidence on the matter. However, his pleadings refer to $10,000 and I accept this to be his submission.
4. Although there is force in Max's argument that $10,000.00 was likely to represent a very small proportion of the successful bid, I am satisfied on the balance of probabilities that this is in fact what the parties agreed to do. Having regard to the Court's observations on credit, the contemporaneous documentary record supports this finding: 1. There is no dispute that the Agreement refers to $10,000.00. 2. Although I accept there is some confusion in the evidence as to the correct, final version of the Sales Contract, the instructions Ms Doherty provided Elizabeth with on or about 6 May 2016, just prior to the Private Auction, relevantly provided that once the purchaser was determined: "THE PRICE TO BE INSTALLED (SIC) THE BALANCE, PRICE LESS $10,000 TO BE INSERTED" 1. The instructions provided by Ms Doherty align with the version of the Sales Contract propounded by Elizabeth as the final draft. This version of the Sales Contract (which the Court is satisfied, on the balance of probabilities, is the final version) provides for a deposit amount of $10,000.00.
5. As to whether the $10,000.00 deposit has been paid, Elizabeth asserted that she did this in December 2016 and January 2017. In her affidavit evidence and under cross-examination, Elizabeth said she paid the deposit in two instalments of $5,000.00, on 29 December 2016 and 3 January 2017. She maintained this position in the absence of any documentary evidence in support (T167.34-36), although conceded she was unable to reconcile why the payments did not appear in the Estate balance sheet as at 30 June 2017 and deferred to her sister-in-law, Lynne (T146.6-30, 167.15-21, 28-32). Elizabeth contended it was only when it became apparent Max was not consenting to her transfer of the Property that she retrospectively allocated this deposit payment as part payment of agistment fees she owed to the Estate (T144.50-145.2).
6. Elizabeth accepted she would have made the deposit payment by direct transfer to the Estate's bank account (T200.43-45), and confirmed the Estate only had the one account with NAB at the time (T200.43-45). However, when taken to statement for that account for the period 1 December to 30 December 2016, Elizabeth could not explain why the only credit was a one-off "Cheque Deposit" of $10,000.00, asserting "I think I've got the dates wrong in my affidavit" (T200.37).
7. I do not accept Elizabeth got the dates wrong. I am satisfied, to the point of actual persuasion on the balance of probabilities, that Elizabeth did not pay the deposit to the Estate in 2016 and 2017. Lynne was not taken to the issue of the deposit in her cross-examination and so provided no explanation. However, what is decisive in the Court's conclusion is a copy of a tax invoice in evidence that Elizabeth herself had issued (on behalf of the Estate) to Rimwick Pty Ltd ("Rimwick") for $10,000.00 on 16 December 2016: "TAX INVOICE ABN XX XXX XXX XXX 16 December 2016 Rimwick Pty Ltd R Dowling XX XXXX Rd Orange NSW 2800 Transaction: Agistment Part payment balance to be paid at wind up of Estate $10,000 Includes GST $909.09 TOTAL $10,000 Banking Details: NAB Est. V J Irvine BSB XXX XXX Account No XXX XXX XXX"
8. Rimwick is a company owned by Elizabeth and Richard. They are also the company's directors. Since the death of Verdun in 1992, Rimwick has been supplying services to the Estate, for which services it invoices the Estate. However, as is apparent from the above tax invoice (marked to the attention of "R Dowling", which I infer to be Richard), Elizabeth also uses Rimwick to facilitate payment of agistment fees she personally owes to the Estate.
9. When taken by Mr Ellison SC to the December 2016 NAB bank statement (see paragraph [86] above) and to the Rimwick tax invoice - "Q. It's certainly coincidental that we've got a bill issued that day, where they say "banking details" and they give the BSB and the account number, and the same BSB and account number receives $10,000 on that day. Correct?"

• Elizabeth did not accept that the $10,000.00 was Rimwick's payment of the invoice (T199.20-26, 201.22-29). This evidence cannot be sensibly maintained, particularly in the absence of any documentary evidence supporting Elizabeth's version of events.

1. However, I do accept Elizabeth's evidence that following the unsuccessful mediation in October 2018, Elizabeth formed the view she should have paid the deposit and proceeded to do so (T146.36-37, 165.47-48). A bank statement for the Estate's NAB account for the period 29 September to 31 October 2018 confirms two instalments of $5,000.00 were paid on 16 and 17 October 2018.

The parties' submissions

1. In addition to the oral submissions advanced by Counsel, the parties provided numerous written submissions before and after the substantive hearing when the matter was brought back before me for ancillary procedural rulings. These reflected the final amended versions of the various pleadings, which fulsomely set out the respective contentions about the contractual permutations contended for in relation to the Agreement and the Verbal Bid Agreement.
2. With no disrespect to the detailed way in which they have been put over time, Counsel's submissions for each party may be distilled to a number of key propositions on the matters which finally emerged as those genuinely in dispute.

Max's submissions

1. The case put forward by Mr Ellison SC on behalf of Max can be summarised as follows.
2. First, by virtue of the conduct of the siblings at the Private Auction, the Verbal Bid Agreement had varied the Agreement so that the bidding process would be conducted orally, replacing the requirement for written bids. A bid made orally was therefore a conforming bid under the Agreement. When pressed initially on whether the Verbal Bid Agreement was in fact a variation or a waiver of the requirement for written bids, Mr Ellison SC contended there was no practical difference as both amounted to the same thing, leading to the same conclusion (T244.9-19). However, in his subsequent written submissions of 11June 2020 Mr Ellison SC only referred to variation.
3. Second, Mr Ellison SC argued the Verbal Bid Agreement, insofar as it was a variation of the Agreement, was enforceable despite not being evidenced in writing. This was in response to an argument raised by Ms Cohen (see paragraph [110 ] below) regarding the application of s 54A of the CA.
4. Mr Ellison SC contended the Statute of Frauds had no application to the Verbal Bid Agreement. This was because the Agreement itself did not attract s 54A (T259.42-43, 260.8-13). Properly characterised, the Agreement was not a contract with regard to the sale or other disposition of land. It was simply an agreement between the parties as to how the bidding process or auction should take place. Mr Ellison SC submitted that if the original Agreement did not attract s 54A, then neither would a variation to it (T259.42-43).
5. Addressing the Verbal Bid Agreement specifically, Mr Ellison SC explained that what the parties agreed to do was no different from an ordinary auction (T257.1-5): "…most auctions are conducted with oral bids and it is traditionally on the fall of the hammer the person making the highest bid, if it's above the reserve et cetera, is bound to enter the written contract. Here [at the Private Auction] the oral bids were concluded with a shaking of the hands. There was no hammer because there's no auctioneer."
6. Mr Ellison SC accepted that once the bidding process results in a concluded agreement it must then be converted to a written contract for sale in order to be enforceable. However, it was only upon a concluded agreement that the provisions in s 54A were enlivened.
7. These first two arguments led Mr Ellison SC to contend, third, that the bidding process contemplated by the Agreement (as varied by the Verbal Bid Agreement) concluded at the Private Auction on 10 May 2016. There was no dispute that the highest bid was the verbal bid made by Elizabeth to purchase the Property for $2,500,000. There was also no dispute that Max and Elizabeth shook hands, with Max saying to Elizabeth words to the effect of "Congratulations, it's yours". Mr Ellison SC emphasised that it was this act of shaking hands (and, I infer, the absence of any challenge from Robert) that was sufficient for the Court to be satisfied that some sort of concluded agreement had been reached by the parties at the Private Auction (T244.11-16).
8. However, the fourth argument advanced by Mr Ellison SC was that Elizabeth then abandoned her verbal offer the very next day. Referring to the general principles on abandonment set out in Heydon on Contract (J D Heydon, Heydon on Contract, Law Book Co, 2019 [2.730]) and Unisys International Services v Eastern Counties Newspapers [1991] 1 Lloyds Rep 538 ("Unisys"), he submitted: 1. For a party to rely on abandonment it must show the other party conducted itself in a manner that entitled the first party to assume abandonment and that assumption was reasonably made or might be inferred from their conduct. 2. The case for abandonment is strengthened if it can be shown that there is in effect an agreement to abandon, where it is clear by the conduct of one or other (or both parties) that the original agreement had been abandoned and the other party understands that to be the case, such agreement to be inferred from subsequent conduct. 3. If there has been a significant delay on the part of a claimant in pursuing a claim, and the delay gives rise to a substantial risk that it would not be possible to have a fair resolution of the issues, abandonment may be found to have occurred.
9. Mr Ellison SC contended this was a case of express or explicit abandonment (cf. Unisys at 544). In support, Mr Ellison SC referred to both acts and omissions by the parties which, taken together, confirmed Elizabeth's abandonment of any contract arising from the Private Auction: 1. The day after the Private Auction, Elizabeth verbally communicated to Max she no longer wanted to purchase the Property for $2,500,000. 2. Max was then invited by Elizabeth to make an offer (which Max alleges he did for $2,200,000) and that Elizabeth countered in writing with her offer on 18 May 2016 to purchase the Property for $2,300,000.00. 3. There was no evidence Elizabeth had signed the Sales Contract, paid the deposit nor taken any other steps to complete the verbal offer she had made. Elizabeth never asserted she was bound to do anything at $2,500,000 if another beneficiary had held her to it, nor had she herself wanted to hold the Estate to it until the amendment of her pleadings in May 2020 in response to the Court's suggestion that her being bound to pay $2,500,000 was one of the possible contractual permutations of the events which had occurred.
10. Fifth, and against the possibility the Court accepted Elizabeth's Written Offer made on 18 May 2016 to purchase the Property for $2,300,000.00 was a valid bid under the Agreement, Mr Ellison SC contended again that the conduct of the parties indicated Elizabeth's express or explicit abandonment of it: 1. Save for the purported $10,000.00 deposit Elizabeth had made in October 2018 in connection with the Written Offer, Elizabeth again took no further steps to confirm, effect or progress the transfer of the Property to her name. 2. Correspondence in September 2016 (extracted at paragraph [47] above) indicated that Elizabeth was on notice of Max's objection to the transfer on the terms of the Written Offer and Elizabeth took the matter no further, thereby acknowledging the legitimacy of Max's objection. 3. Correspondence in June and July 2017 (extracted at paragraphs [53]-[57] above) again indicated Elizabeth's acknowledgment that Max did not consent to her purchase of the Property under the Written Offer. This correspondence also demonstrated Elizabeth's consideration of having the Property sold at public auction, and her explicit preparedness to do so. 4. Elizabeth had been on notice from Max's solicitors since May 2017 that court proceedings against her were contemplated. On 18 December 2017, she was provided with a draft Statement of Claim, which Max proposed to file. In neither of her responses did Elizabeth assert her right to purchase the Property for $2,300,000.00. 5. Finally, in her letter of 30 January 2018 (extracted at paragraph [64] above), Elizabeth again spoke of her proposal to list the Property for public auction, with her currently "seeking advice and obtaining quotes from suitable selling agents". Reference was made to the exchange between the Court and Elizabeth (see paragraph [65] above), in which she accepted it was a fair reading of her response that she was "walking away" from the Agreement.
11. Finally, Mr Ellison SC contended that by reason of delay, the Court in its discretion ought not in any event give Elizabeth relief in the nature of specific performance to enable her to purchase the Property at either price. Elizabeth's cross-claim related to events some four and a half years ago. Mr Ellison SC maintained throughout the hearing that it was a reasonable proposition that nothing would have happened about the sale of the Property but for Max's initiation of these proceedings. It took from May 2016 until the filing of the first cross-claim in March 2018 for Elizabeth to assert her right to a transfer of the Property pursuant to the Written Offer, and until May 2020 to assert her right pursuant to the Verbal Bid Agreement.
12. As both the prospective vendor (as executrix of the Estate) and purchaser under either possibility, it was emphasised that all the conduct to effect the transfer of the Property had always been in Elizabeth's control. She should have got on with transferring the Property to herself in circumstances where it was a matter for Max to then seek to enjoin her from doing so. Mr Ellison SC did not accept any of the reasons put forward by Elizabeth as an explanation for her delay, as illustrated by the following exchange in cross-examination (T137.49-138.21): "Q. And if Max hadn't started this case, you wouldn't have brought this cross-claim, would you? A. Well I don't like litigation, but I would've had to. Q. Well when were you proposing to bring it? A. Well we were in the middle of a drought in these last three years and it wasn't a very good time to be arguing, we were just surviving on the property. Q. But I thought you told us that you didn't need the income from this property to get by. A. No. … Q. Your brother Robert apparently has been, it might be a bit tough to say, hectoring you to get it done, but that didn't move you did it? A. I think I've been listening to Rob all along, I've listened to Max, he just won't let me buy it."
13. It was also submitted that Elizabeth's delay in asserting her rights had to be considered in the light of her approach to the Court in November 2016 for judicial advice to validate her purchase of the Property under the Agreement (see paragraph [48] above). That advice was declined by Lindsay J on 5 December 2016. However, Mr Ellison SC said Elizabeth provided no sensible explanation as to why, having gone to the trouble of approaching the Court and personally incurring the expense of that, she did not take up his Honour's suggestion that she file a summons and claim that relief which she had sought by way of judicial advice to confirm her entitlement to purchase the Property for $2,300,000.
14. As to the prejudice suffered by the other parties from Elizabeth's delay, in his written submissions of 15 October 2020 Mr Ellison SC contended Elizabeth: "…wants the best of both worlds, to pay a 4 year old purchase price without ever having borrowed the money or paid interest herself to a financial institution and with the beneficiaries… not having the benefit of their entitlement for over four and a half years."
15. The evidence was that the current total market value as at 13 July 2020 of the Property was $4,957,800.00. Mr Ellison SC emphasised the value of the Property had doubled from either amount Elizabeth had offered to pay for the Property. If there was any windfall to be gained, it was by Elizabeth and at the expense of the other beneficiaries. In such circumstances, the Court would not declare Elizabeth was entitled to purchase the Property at either price. Finally, he submitted that if Elizabeth was entitled to purchase the Property, it should be a condition of such relief that she pay the Estate interest to compensate it for the delay since the time when, on Elizabeth's case, she must have been entitled to sell the Property to herself. Such interest should run from May 2016 to the date of payment to the Estate.

Elizabeth's submissions

1. Ms Cohen's first submission on behalf of Elizabeth was that the Verbal Bid Agreement did not vary or waive the Agreement in any way. Elizabeth's evidence was that the oral bids were a means of speeding up the bidding process. However, Ms Cohen said the Verbal Bid Agreement and conduct of the parties at the Private Auction was of no legal significance (T252.36-42). Max could not unilaterally discharge the Agreement, and there was no evidence before the Court that Elizabeth or Robert ceased to rely upon the Agreement. The initial Agreement was still on foot, and all bids remained subject to the requirement to be put in writing (T250.10-17).
2. Elizabeth's Written Offer made on 18 May 2016 was therefore a conforming bid under the Agreement, giving her an enforceable right to purchase the Property from the Estate for $2,300,000.00. Contrary to the position put forward by Max, Ms Cohen contended that if he had truly believed the Agreement varied, Max would not have sent his letter on 19 May 2016 which stated "No other offers were made… within the 48 hour period…". I infer this is because the 48 hour period in which to make a counter bid was part of the written bidding process the Verbal Bid Agreement had allegedly dispensed with. In a similar vein, Ms Cohen submitted in her written submissions that Max would not have lodged the caveat on 27 May 2016 to protect his "equitable interest as a beneficiary". Although not explained by Ms Cohen, I infer this to be because if the Written Offer was non-conforming (as alleged by Max), there was no basis for the Property to be transferred to Elizabeth.
3. Second, Ms Cohen submitted that the Verbal Bid Agreement was, in any event, unenforceable as it was caught by s 54A of the CA. In challenging the construction put forward for Max, Elizabeth contended an agreement to make oral bids was an agreement "in relation to a contract for the sale of land", and the Verbal Bid Agreement therefore had to be in writing (T249.24-26). There was no dispute the Verbal Bid Agreement was never reduced to writing, and as such it was not capable of varying the Agreement.
4. Third, against the possibility the Court did not accept the preceding arguments and was satisfied the Agreement (as varied) was enforceable, it was contended for Elizabeth, in the alternative, that she was entitled to purchase the Property for $2,500,000.00. All parties agreed Elizabeth had been successful in making the highest bid at the Private Auction. Ms Cohen emphasised Elizabeth was willing to complete the purchase of the Property for $2,500,000.00 and referred, in support, to the decision of Green v Sommerville (1979) 141 CLR 594; [1979] HCA 60 ("Green"), in which the High Court unanimously held the respondent's bona fide but erroneous construction of a contract was not fatal to a suit for specific performance where the respondent remained ready and willing to perform the contract on its true construction. I understood the argument to be that the Court would similarly not draw adverse conclusions from the fact Elizabeth had formed an earlier, albeit incorrect, view that she was entitled to purchase the Property pursuant to the Agreement, because she was ready, willing able to perform the contract that had arisen from the Verbal Bid Agreement.
5. Fourth, Ms Cohen submitted at no time had Elizabeth abandoned her Written Offer nor, in the alternative, her offer under the Verbal Bid Agreement. On either case, Elizabeth retained a present entitlement to enforce her right to a transfer of the Property. Responding to the matters raised by Max in this regard (see paragraphs [101] and [102] above), Ms Cohen submitted: 1. It was Elizabeth's understanding that, as executrix, she could not purchase an asset from the Estate without the consent of all beneficiaries. Elizabeth contended that while she did have consent of all beneficiaries by virtue of their execution of the Agreement, the evidence before the Court made clear Max had withdrawn his consent following the Private Auction. It was against this background that Elizabeth's actions had to be considered. 2. The preferable view on "abandonment" is whether the contract has been discharged by inferred agreement. In support, Ms Cohen relied on the authority of Dixon CJ and Fullagar J in Fitzgerald v Masters (1956) 95 CLR 420 at 432; [1956] HCA 53: "There can be no doubt that, where what has been called an 'inordinate' length of time has been allowed to elapse, during which neither party has attempted to perform, or called upon the other to perform, a contract made between them, it may be inferred that the contract has been abandoned… What is really inferred in such a case is that the contract has been discharged by agreement, each party being entitled to assume from a long-continued ignoring of the contract on both sides that… 'the matter is off altogether'." The facts of the case do not support such "inferred agreement" that the either offer was abandoned. Rather, the correspondence in evidence made clear that Elizabeth has always asserted her rights under the Agreement, with such correspondence showing she always remained ready, willing and able to complete the Written Offer. Furthermore, on any view, Robert had never agreed to a departure from the Agreement. 1. The fact Elizabeth did not pay the deposit until October 2018 was due to the ongoing dispute with Max. In her affidavit sworn 10 May 2019, Elizabeth explained that the day after she paid the deposit she received a notice to produce and subpoena issued on behalf of Max, and so "assumed the litigation would be continuing and have therefore not signed the Contract of Sale again" (I infer this should read "signed the Contract of Sale at all", as there is no evidence the Sales Contract was ever signed). In her final written submissions dated 23 October 2020, Ms Cohen contended that if Elizabeth completed the transfer and paid stamp duty and financing costs, it was inevitable that Max would commence litigation to have the sale set aside, as "the tone of his lawyers' letters inferred that". 2. Elizabeth has only ever attempted to settle the conflict with Max rather than involve the family in further expensive litigation. Elizabeth made her aversion to litigation known on several occasions, including as the reason why she did not take up the leave granted by Lindsay J in December 2016 (see paragraph [50] above). In relation to Elizabeth's letter of 30 January 2018 in particular (see paragraph [64] above), Ms Cohen emphasised this was sent after Max had filed his statement of claim. As stated in her letter, Elizabeth considered such action to indicate further discussions on her Written Offer futile: "a settlement within the family is extremely unlikely to succeed". In response to a question I put during re-examination, Elizabeth had explained (T176.9-18): "Q. …Why did you write the letter of 30 January 2018? A. It was a - I was trying to get a settlement so that this litigation wouldn't go ahead, and I didn't, I didn't want any litigation. I wasn't abandoning my claim. I thought he would still settle. Q. Did you go on to get the advice that you referred to in that paragraph, third paragraph of the letter…? A. No. No, I didn't. Q. Why not? A. Because I thought we could still, I thought we could still settle." Considered in this context, it was submitted Elizabeth's proposal to list the Property for public auction was only ever an offer to settle the litigation now on foot, rather than an express or explicit abandonment of her rights to purchase the Property. 1. The late amendment to plead, in the alternative, relief pursuant to the Verbal Bid Agreement was not indicative of any abandonment by Elizabeth of those rights. Ms Cohen contended that Elizabeth had not previously pursued the Verbal Bid Agreement because her belief had always been that contracts for the sale or disposition of land (which she believed the Verbal Bid Agreement to be) had to be in writing. However, as set out in paragraph [111] above, Ms Cohen relied on Green for why this Court would not draw any adverse conclusions from that belief if the Court found it to be erroneous.
6. Next, Ms Cohen submitted the Court should not find Elizabeth guilty of delay, nor were there any other discretionary factors which would cause the Court to refuse Elizabeth's application for a declaration that she was entitled to purchase the Property for one of the two possible amounts. This was because: 1. The length of any delay in the proceedings was solely attributable to the conduct of Max and his legal representatives, including his continued requests concerning the Estate accounts. In her written submissions, Ms Cohen argued that from June 2016 onwards, Max has used the allegation of Elizabeth not keeping proper accounts as an excuse for his objection to her purchase of the Property. In her written submissions of 21 May 2020, Ms Cohen submitted that all documentation regarding the administration of the Estate has been made available to Max or his solicitors whenever requested. 2. As set out in paragraph 112 above, Elizabeth's problem was that as executrix of the Estate, she could not complete the purchase without either the consent of all beneficiaries or the sanction of the Court. Had she not been subject to these obligations as executrix, Elizabeth contended she would have completed the transfer of the Property by now. Again, as set out in paragraph 112, Elizabeth's strong desire was to settle the dispute without incurring the costs of litigation. This was a case where Elizabeth was attempting to keep out of court and if she had reached an agreement with Max, that kept her out of court. Ms Cohen emphasised that all correspondence between May 2016 and January 2018 was only ever an effort by Elizabeth to avoid litigation. In cross-examination, Elizabeth gave evidence that she genuinely believed Max would come to agreement one day (T141.13-28): "Q. Did you think that one day, sometime between May 2016 and who knows when, Max was going to get out of bed and ring you up and say, you can have the property at 2.3 million? A. Yes I did, why wouldn't, that's what we agreed on, I can't, I can't understand why he wanted to change his mind, was it because he didn't have the highest bid, I offered him the chance to come back with 2.4 and he didn't and I gave him a week, not 48 hours, I can't understand. Q. You didn't get the slightest impression from any of the solicitor's letters that we will still come to, that Max was about to roll over and say "All right, pay the 2.3 million and we'll forgot about everything else". There is nothing in his letters, the solicitor's letters keep saying object, object, object, correct? A. Well in some of them they do. Some they say he hasn't given them advice. I thought that the problem was the accounting, he couldn't see that it was clear. He seems to be accusing me of taking money. I haven't done that. I've tried at all times to do my best for the estate." 1. There was no evidence of prejudice to Max from any delay. Since 2016, Max has had use of the Property and his fees payable to the Estate for agistment have been delayed until the Property's sale and the distribution of the Estate. Moreover, any prejudice asserted was due to the actions of Max, not Elizabeth. Max only had himself to blame for any detriment to the Estate (which was denied) from the increased value of the Property because Elizabeth had been willing and able to complete the purchase in May 2016. 2. This was not a case where, in effect, specific performance would cause severe hardship to Max, or where either the Written Offer or the offer under the Verbal Bid Agreement was unconscionable or induced by unfair conduct. Ms Cohen contended that the movement in the value of land since the date of Elizabeth's offer (10 May or 18 May 2016, as the case may be) was not a material factor in the formulation of a defence of hardship: Fitzgerald v Masters (1956) 95 CLR 420; [1956] HCA 53 at 433. Ms Cohen also relied on the authority of Dixon J (as his Honour then was) in Axelsen v O'Brien (1949) 80 CLR 219; [1949] HCA 18 at 226 to argue that it was not sufficient for Max now to seek to establish that the consideration offered in 2016 was greater or less than the current value: "Those were the terms of the contract as agreed to by the vendor. He may not have been wise in agreeing to those terms. They may have been unbusinesslike or risky. But where the parties have agreed on the terms the court will not refuse specific performance on the grounds of unfairness." However, in any event, Ms Cohen pointed out that the historical market value of the Property of $2,375,200.00 demonstrated the Written Offer was a fair and reasonable price at the time. There was no evidence of unfair conduct arising from matters before or at the time either of her offers was made. 1. This was a case where damages would be an inadequate remedy. It was unchallenged that at the very core of the Agreement was the desire of the siblings for the Property to stay in the family, with each having an emotional and family connection to the property. Ms Cohen submitted the parties entered into the Agreement on the basis of their shared desire for the Property to remain in the family.
7. Finally, on the question of interest, Ms Cohen submitted that Elizabeth should not have to pay interest, but would do so if the Court required it. She noted that Robert did not ask for interest if the Property was sold to Elizabeth and that the delay, such as it was, was entirely due to Max's conduct. Ms Cohen also drew attention to the decision of Sir John Leach V-C in the 1822 decision of Esdaile v Stephenson (1822) 57 ER 49 ("Esdaile") as authority for the proposition that where in an action for specific performance the contract was silent on interest and the delay in completion was, among other things, the fault of the vendor, the court would not give the vendor interest so he did not benefit from his own wrong. By parity of reasoning, Max should not receive - through his share of the Estate - the benefit of interest where the delays were brought about by his own conduct.

Robert's submissions

1. Robert did not play a major role in these proceedings and the relief he sought mirrored Elizabeth's. Mr Ellison SC foreshadowed an argument as to costs to the effect that Robert should have done no more than file a submitting appearance and should not have his costs. That is for another day.
2. What was clear was that, as the eldest sibling and having had limited involvement in the Private Auction (and subsequent events), Robert justifiably just wanted the matter resolved. In his affidavit evidence, Robert expressly stated his consent to Elizabeth enforcing her right under the Written Offer to purchase the Property for $2,300,000.00. However, in response to the arguments raised in the hearing, Mr Williams made the following submissions on behalf of Robert.
3. First, like the case advanced by Elizabeth, Mr Williams submitted that the Verbal Bid Agreement did not vary or waive the Agreement in any way. In his written submissions, Mr Williams contended the oral bids at the Private Auction were "preliminary bids" and "mere negotiations" that "never amounted to a rescission or abandonment" of the Agreement. Further, in closing submissions Mr Williams contended that to be enforceable, the Verbal Bid Agreement would have to be in writing by reason of s 54A of the CA and that this was the requirement for both a variation and waiver (T253.34-41). As the Verbal Bid Agreement was never put in writing, it was not enforceable and therefore was of no legal significance to the Agreement. Elizabeth's Written Offer was the only conforming bid under the Agreement.
4. Second, Robert did not accept that Elizabeth had abandoned the Agreement. Mr Williams argued that abandonment applies when persons who are parties to a valid contract enter a further contract to terminate or abandon the first contract. In particular, he relied on Unisys and the judgment of Lord Justice Parker at 552, who quoted Lord Justice Goff in Allied Marine Transport Ltd v Vale do Rio Doce Navegacao S.A. (Leonidas D) [1985] 1 WLR 925 at 940: "As we interpret that statement of principle, it is not enough that O should appear to have given up the pursuit of his claim, because there could be a number of reasons why O should not be pursing it; … What has to be shown is that O appeared to be offering to agree that the reference should be abandoned and that A, having so understood O's offer, by his conduct accepted O's offer. … It is entirely consistent with the long accepted principles of offer and acceptance as creating a binding agreement."
5. Referring specifically to Elizabeth's letter of 30 January 2018 and Max's argument that Elizabeth's proposal to sell the Property by public auction was her "walking away" from her Written Offer, Mr Williams emphasised that proposal was never accepted by Max or Robert. There was no consensus ad idem, preventing formation of a binding agreement and in such circumstances there could be no abandonment of the earlier Written Offer. Mr Williams also referred to Elizabeth's evidence that her decision not to take up Lindsay J's suggestion of commencing proceedings (see paragraphs [49]-[50] above) and her continued correspondence with Max was only ever an attempt to settle the matter and avoid litigation, as well as Elizabeth's explicit denial in cross-examination that she had walked away from her Written Offer (T255.1-8).
6. Third, Mr Williams contended there were no discretionary factors upon which the Court would refuse to grant specific performance. Mr Williams challenged any suggestion of delay on Elizabeth's part, emphasising in written submissions that: "[Elizabeth] was trying to steer a course between her brother who was a dishonest bully, and trying to protect the estate from the cost of the huge expense of litigation which had already cost the estate half of the property "Lowery" to pay for the expenses of earlier litigation [a reference to Cohen J's orders]."
7. It was said to be clear from the cross-examination of Max that Max was the real cause of the delays and, more importantly, that it was not open to Max to rely on the defence of laches because he didn't suffer any prejudice (T254.38-41). Mr Williams went on to submit that all delays in the winding up of the Estate in fact benefitted Max, because until final distribution of the Estate: 1. Max does not have to pay the agistment fee for cattle he has had on the Property; and 2. Max does have to pay the sums of $80,000.00 each to Elizabeth and Robert that he is required to pay pursuant to the orders of Johnson J in the Possession Judgment (and therefore has a vested interest in putting off the final distribution date as he is getting $160,000 "free of interest" (T254.45-48)).

The Statute of Frauds

1. There was no dispute between the parties that the Agreement became valid and binding between them after Max signed his counterpart copy on 23 February 2016. Nor did Max and Robert put any submission against Mr Ellison SC's proposition that the Agreement also included the Estate Position Statement. For the purposes of these proceedings, nothing turns on whether it did or it did not. There was also no dispute between the parties that the Verbal Bid Agreement was not in writing.
2. What impact, if any, the Verbal Bid Agreement had on the Agreement turns, in the first place, on whether the Agreement was a "contract for the sale or other disposition of land or any interest in land" for the purposes of s 54A(1) of the CA so as to have to be in writing to be enforceable. It will be recalled that the Agreement not only governed how the bidding was to be conducted, but also required the successful bidder to enter into a contract for sale on certain terms. While there was some debate between the parties about the draft contracts prepared by Ms Doherty, no party suggested that the contract to be signed by the successful bidder under the Agreement had been insufficiently described or could not be identified so as to render the Agreement uncertain.
3. The fact that the Agreement not only governed the method of bidding but also required the successful bidder to enter into an identifiable contract for sale of land is why the Court has concluded, contrary to Mr Ellison SC's submissions, that while the Agreement may not be a "contract for sale" it is a contract for the "disposition of land".
4. Although I am not strictly bound by it, in my respectful view the question has been authoritatively determined by the decision of the Full Court of the Supreme Court of Queensland in Wright v Madden [1992] 1 Qd R 343 ("Wright"). The reasoning of that decision, in my respectful opinion, is undoubtedly correct. In that case there were oral terms for the conduct of an auction which required the successful bidder to execute a written sale agreement. The successful bidder refused to execute any written sale agreement.
5. The Full Court held that an oral agreement that the successful bidder at an auction should execute a written sale agreement was unenforceable because it was required to be in writing as a contract for the disposition of land. The facts in the present case are indistinguishable from those in Wright, with the exception that the Agreement is in writing. Williams J (with whom Ryan and Dowsett JJ agreed) concluded (at 349-350): "But where the alleged breach of the [oral] collateral contract is no more than the failure by a party to sign the memorandum necessary to make the contract of sale enforceable given the provisions of the Statute of Frauds, there will be no enforceable breach of the collateral contract; to hold otherwise would be simply to negate the operation of the Statute."
6. The fact that the Agreement was a contract for the disposition of land is amply demonstrated by the relief which Elizabeth seeks, which the parties accepted was in substance specific performance of an entitlement to purchase the Property. While the Agreement is not itself a contract for the sale of land, it does require the successful bidder to enter into a contract for the sale of land. Quite apart from the decision in Wright, there is binding authority in this state that such an agreement must be writing to be enforceable: Powercell Pty Ltd v Cuzeno Pty Ltd (2004) BPR 21,429; [2004] NSWCA 51, affirming a decision of Campbell J (as his Honour then was) in Powercell Pty Ltd v Cuzeno Pty Ltd (2003) BPR 21,385; [2003] NSWSC 600.
7. In the decision at first instance, Campbell J said (emphasis added): "125 In Daulia Ltd v Four Millbank Nominees Ltd [1978] 1 Ch 231 (the facts of which are set out at paragraph 115 above) Goff LJ said, at 240: "It is clear to me that ex hypothesi it is not a contract for the sale of land or any interest in land because it is a separate and independent contract to enter into such a contract. In my judgment, however, it is equally clearly a contract for some other disposition of an interest in land." The section there being considered was section 40 Law of Property Act 1925 (Eng), a section for all practical purposes identical with section 54A Conveyancing Act 1919 . 126 Daulia illustrates how the fact that a further agreement would need to be entered into before any interest in land actually passed is no obstacle to the Statute applying. That was also the situation in Gray v Dalgety & Co Ltd, where the landowner would need to enter into a mortgage with the mortgagee who the broker found before he parted with any interest in land. Similarly, in Horsey v Graham, a further agreement would be needed, between the plaintiff and the present lessee of the public house, before any interest in land would actually be acquired. 127 The contract between Powercell and Cuzeno was one under which Cuzeno obliged itself to part with an interest in land, in certain circumstances (viz, that the purchasers were not prepared to forego their right to have a home unit conveyed to them). While the carrying out of the contract between Powercell and Cuzeno would require a further contract or contracts to be entered, between Cuzeno and any purchaser who was not willing to forego his or her rights, that does not prevent section 54A applying. For these reasons, I am of the view that the contract between Powercell and Cuzeno is one which is required, by section 54A, to be in writing, or to have a note or memorandum in writing. Because there is no such writing, Powercell's claim fails."
8. In affirming his Honour's decision, Giles JA (with whom Meagher and Santow JJA agreed), said (emphasis added): "34 The paradigm case within s 54A is where A agrees with B to sell A's land to B. In the present case A (the respondent) agreed with B (the appellant) to sell A's land to C (the purchasers). In my opinion, that is properly described as a contract for the sale of land. If A agrees with B to sell A's land to B or B's nominee, as is not uncommon, I do not doubt that the agreement is still within s 54A, and that it remains within s 54A when B nominates C. There is a contract for the sale of land, the obligation being to convey or transfer the land to C. Similarly if the obligation is directly expressed as an obligation to convey or transfer the land to C. Whatever the present purpose served by s 54A, it is equally applicable and fulfilled in all these cases. 35 This is supported by the advice of the Privy Council in Dalgety & Co Ltd v Gray (1919) 26 CLR 249. In the High Court the majority held that the agreement was no more than an agreement to introduce a mortgagee (Gray v Dalgety & Co Ltd (1916) 21 CLR 509). In the Privy Council it was held that there was an agreement that the defendant would find a mortgagee of the plaintiff's land and the plaintiff would mortgage his land to the mortgagee. It was said (at 255) that this was "an agreement to create an interest in land … struck at by the Statute of Frauds … ". A (the plaintiff) agreed with B (the defendant) to dispose of an interest in A's land to C (the mortgagee). 36 See also Horsey v Graham (1869) LR 5 CP 9 (A agreed with B to cause C to assign leasehold premises to B: within the Statute); Boston v Boston (1904) 1 KB 124 (A agreed with B to pay B if B bought land from C: not within the Statute because B was not obliged to buy the land from C.) Stonham, Vendor and Purchaser states (at [47]) that "[t]he sale or disposition need not be from one party to the contract to the other party thereto", and that "it is sufficient if, by the contract, one party becomes obliged to acquire or dispose of land or an interest in land". Voumard, The Sale of Land, 5th ed, para 2100 prefers the view that the Statute applies where A agrees with B to acquire land from or sell land to C. In my opinion, that is correct."
9. The Agreement in this case is precisely of the kind referred to in the last paragraph just quoted, being a contract whereby one of the parties, the successful bidder, became obliged to acquire the Property by entering into the Sale Contract.
10. The next issue is whether the Verbal Bid Agreement is binding. One aspect of this question is whether the Verbal Bid Agreement is a variation of the Agreement (in which case it must itself be in writing in order to be effective - see paragraph [133] below) or a waiver of some part of the Agreement (in which case it does not have to be in writing to be effective). Given the difference in outcomes, I do not accept Mr Ellison SC's characterisation that it did not matter whether the Verbal Bid Agreement was characterised as either a variation or a waiver.
11. As the learned author of Heydon on Contract observes at [5.560], ""Waiver" is one of the slipperiest terms in the law". Understanding the term in the present case to refer to the promise that some term of an existing contract will not be enforced or an acquiescence to the non-performance of a term of an existing contract, it is clear that the Verbal Bid Agreement does far more than that. It purports to change the basic mechanism for the conduct of the sale from one thing (written bids) to something quite different (verbal auction). It is not a waiver: it is a variation.
12. The view to which the Court has come is supported by the analysis of this type of problem in the context of the Statute of Frauds by Barrett J (as his Honour then was) in Radoman Pty Ltd v Vexapu Pty Ltd [2008] BPR 24,903; [2008] NSWSC 8. In that case, his Honour said (emphasis added): "32 That, however, is not the end of the inquiry as to the applicability of s.54A of the Conveyancing Act. This is because of the rule that a contract varying a contract which, as required by s.54A, is evidenced by writing must itself be evidenced by writing: see Phillips v Ellinson Brothers Pty Ltd [1941] HCA 55; (1941) 65 CLR 221. It is therefore necessary to consider whether the Verbal Bid Agreement pleaded by Radoman was in truth an agreement varying the option agreement of 29 November 2004. That option agreement was obviously a contract in respect of which the s.54A requirement as to writing both applied and was satisfied. 33 The foundation for the rule about variation of contracts that must be evidenced by writing was said by Lord Atkinson in Morris v Baron [1918] AC 1 at 31 to be "that after the agreed variation the contract of the parties is not the original contract which had been reduced into writing, but that contract as varied, that of this latter in its entirety there is no written evidence and it therefore cannot in its entirety be enforced." 34 An illustration of the application of this rule is found in McCausland v Duncan Lawrie Ltd [1997] 1 WLR 38 where one party sought unsuccessfully to rely on an unwritten agreement changing the date for completion specified in a written contract for the sale of land. A parol variation concerning the amount of the deposit and the completion date was likewise held unenforceable in Burnitt v Pacific Paradise Resort Pty Ltd [2006] QCA 309. 35 In both cases just mentioned there was a question as to whether the subsequent agreement varied the original contract or was merely collateral to it. The validity of that distinction was explained in the judgment of Williams J in Phillips v Ellinson Brothers Pty Ltd (above) at CLR 243: "It is clear law that a contract required to be in writing by the Statute of Frauds cannot be varied orally (Morris v Baron & Co [1918] AC 1 ; British and Beningtons Ltd v N W Cachar Tea Co [1923] AC 48; Dowling v Rae (1927) 39 CLR 363, at pp. 370, 371; and, as to deeds, Berry v Berry [1929] 2 KB 316), but 'a distinction has been pointed out and recognized between an alteration of the original contract in such cases, and an arrangement as to the mode of performing it. If the parties have attempted to do the first by words only, the court cannot give effect, in favour of either, to such attempt; if the parties make an arrangement as to the second, though such arrangement be only made by words it can be enforced' ( Plevins v Downing (1876) 1 CPD 220, at p. 225). And, as Goddard J (as he then was) pointed out in Besseler Waechter Glover & Co v South Derwent Coal Co. [1938] 1 KB at 417: 'It does not appear to me to matter whether the request comes from one side or the other, or whether it is a matter which is convenient to one party or to both. What is of importance is whether it is a mere forbearance or a matter of contract.' If an arrangement amounts to a parol variation of the original contract it is ineffective either to enable the contract to be enforced as so varied or to prevent the original contract being enforced in its unaltered form." 36 The question is thus whether the intended effect of the subsequent contract is to prevent the original contract being enforced in its unaltered form - because, for example, a different date for completion is specified or a different price is payable; or whether, by contrast, the subsequent agreement leaves the parties in a position where performance of the original contract can be both required and tendered according to the terms originally agreed. 37 In the present case, the option agreement of 29 November 2004, on the assumption stated at paragraph [18] above, remained operative in its original form despite the subsequent agreement alleged by Radoman. Radoman's entitlement to require sale of the hotel property to it by giving notice as provided by the option agreement within the option period remained extant, unaltered and undiminished. Subject only to due exercise, Vexapu's obligation to sell and convey the property to Radoman in return for the "purchase price" remained extant, unaltered and undiminished, as did Radoman's obligation to take the property and pay that price. The subsequent agreement, as pleaded, contemplated no more than that Radoman might give up its right to buy and to hold Vexapu to a sale accordingly. That, in my view, did nothing to alter the original contract."
13. There can be no doubt that, to adopt his Honour's language in paragraph [36] quoted above, the effect of the Verbal Bid Agreement (if enforceable) is to prevent the Agreement being enforced in its unaltered form, because the latter specifies a completely different method of performance of the conduct of the sale to that set out in the former.
14. It follows that the Court accepts Ms Cohen's and Mr Williams' submissions that the purported variation of the Agreement by the Verbal Bid Agreement is unenforceable for want of writing, and that the parties' rights, such as they are, continue to be governed by the Agreement. This also means that the Court accepts their submission that Elizabeth's Written Offer was made in accordance with the terms of the Agreement so that, in the absence of any subsequent bids within the following 48 hours, on and from 9am on 20 May 2016, Elizabeth was bound to purchase the Property for $2,300,000 in accordance with the terms of the Agreement.

Abandonment

1. Heydon on Contract summarises the principles in relation to abandonment (at [2.730]): "Persons who are parties to a valid contract may enter a further contract to terminate or abandon the first contract. In theory a party which ceases performance under a contract could be characterised as having made an offer to terminate it. The difficulty is that to adopt this characterisation it is not sufficient that the putative offeree believes that there has been an offer. In addition, it is necessary to conclude that a reasonable person in the position of the putative offeree would believe that the other party was making the offer. It is not easy to reach that conclusion, because silence can be equivocal. Many other reasons for non-performance may exist. They include oversight by the party or the party's solicitor or the party's employees, incapacity to perform and a desire not to stimulate the putative offeree into hostile action. They also include inadvertent loss of memory, and slowness on the part of office staff, agents, insurers or solicitors. Hence the conclusion that non-performance is an offer is rarely drawn. But the conclusion may be drawn from non-performance taken with other circumstances. Further it is difficult to infer from the putative offeree's silence that the offeror's offer has been accepted. The inference may, however, be drawn in exceptional circumstances."
2. The Court accepts Ms Cohen's and Mr Williams' submissions as to why the Agreement was not abandoned. However, that acceptance may be encapsulated in two fundamental propositions.
3. First, it must be recalled that the Agreement was tripartite. Whatever Elizabeth offered to do or did not do was, as the record of correspondence set out in paragraphs [41]-[64] above shows, directed towards Max directly or through his solicitors. As Robert's response set out in paragraph [63] above demonstrates, Robert never did anything which could constitute express or implied agreement or acquiescence to the abandonment of the Agreement. On the contrary, he adhered to it and, in these proceedings, has steadfastly maintained his support for Elizabeth's position that she is entitled to purchase the Property in accordance with the Agreement for $2,300,000.
4. Second, insofar as anything Elizabeth offered to do or said she would do was contrary to asserting her rights under the Agreement, I accept that these were all matters put to Max in the hope that Max would agree, so that the need for a further legal dispute would be avoided. Max never agreed nor acquiesced in anything Elizabeth put to him.
5. The Court has some sympathy for Elizabeth's predicament when Max first opposed her purchasing the Property and said he wanted a public auction (see paragraph [47] above), but when confronted with a proposal for a public auction did not give his solicitors instructions to consent to that (see paragraph [55] above), and later again said he wanted the Property to stay in the family and have an opportunity to bid for it (see paragraph [62] above). Looking at the correspondence as a whole, I am left with the impression that Max's approach was often to oppose reflexively whatever Elizabeth proposed from time to time or just try to delay any sale.
6. The Court is therefore satisfied that, viewed objectively, the three parties to the Agreement never manifested expressly, or impliedly, a joint intention that the Agreement be abandoned.

Laches

1. Insofar as Max has raised a defence of laches to Elizabeth's assertion of her rights under the Agreement, the Court accepts Ms Cohen's and Mr Williams' submissions that the evidence rises no higher than "mere delay" on the part of Elizabeth. It is a hornbook proposition that "mere delay" does not make out the equitable defence of laches.
2. The Court accepts that Elizabeth's delays - although misconceived in the sense that she did not require anything further from any of the other parties and should simply have proceeded to purchase the Property in accordance with the Agreement (leaving it to Max to seek to enjoin her if that is what he wished to do) - are at least explained by her understandable desire to try to reach an accommodation with Max and avoid further litigation and legal expenses. I cannot help but think that matters would have come to a head much faster if Elizabeth had retained a solicitor to advise her generally from the time of the Agreement.
3. Max has not been able to point to any adverse change of position or prejudice which he (or anyone else) has suffered by reason of Elizabeth's delay other than that he has been kept out of his share of the Estate. This last aspect is, in the Court's view, resolved not by upholding the defence of laches, but by acceding to Max's submission that in now purchasing the Property in reliance on her rights under the Agreement, Elizabeth must pay the Estate interest. I deal with this in paragraphs [146]- [159] below.

The Property has increased in value

1. I accept Ms Cohen's submissions set out in paragraph [113(4)] above as to why, contrary to Mr Ellison SC's submissions, the "windfall" to Elizabeth in the increased value of the Property is not a reason for the Court to exercise its discretion to deny Elizabeth relief. What is being given effect to is the Agreement, which the parties accepted was valid and binding. No one has suggested that any vitiating factors were involved when the parties entered into the Agreement. Furthermore, it is again relevant in supporting this conclusion that equity will be done by requiring Elizabeth to pay interest.

Interest

1. However it will ultimately be framed, the relief Elizabeth seeks is equitable. It is therefore discretionary and can be granted upon conditions. Such conditions are often directed to ensuring that the person seeking equity does equity. What that should be is necessarily fact-specific and is a matter in which the Court has a degree of latitude (subject to being exercised judicially and for a proper purpose).
2. In seeking to assert her right to purchase the Property under the Agreement, Elizabeth must do equity by compensating the Estate by a payment of interest for the delay the Estate has suffered by her not acting on the Agreement in accordance with its terms, as the Court has found she was and is entitled to do. In reaching this conclusion, I reject Ms Cohen's submission that Elizabeth's inability to complete was due to Max's conduct so that interest should not run. While Elizabeth's reluctance to press matters into litigation is entirely understandable given the history of the Estate, the fact remains that she was entitled to, and should have got on with, the sale of the Property to herself for $2,300,000 in accordance with the Agreement.
3. It is convenient at this point also to set out the two reasons why Ms Cohen's reliance on Esdaile is misconceived.
4. First, whatever was said in that case about what should happen where the contract sought to be enforced made no provision for interest was obiter dicta. In his three paragraph judgment the learned Vice-Chancellor expressly records that the contract in issue had a provision for the payment of interest and the court required that provision to be honoured.
5. Second, the first premise of Ms Cohen's reliance on Esdaile was that the Agreement made no provision for interest. That is true as far as it goes but is of no assistance in the present case. That is because the Sale Contract which Elizabeth was bound to enter under the Agreement did contain a provision for interest which I set out below.
6. This then leaves the questions of the interest rate and the period for which interest should run.
7. The interest rate and method of calculation should be that provided for in the Sale Contract prepared on Elizabeth's instructions by Ms Doherty and which she should have entered into under the Agreement. The special condition as to interest was: "37. If the purchaser fails to complete this contract by the completion date without default by the vendor the purchaser shall pay to the vendor on completion in addition to the balance of the purchase monies interest calculated at the rate of ten (10) percent per annum on the balance of the purchase monies outstanding hereunder such interest to be calculated daily computed from the date provided for completion until the date of actual completion. It is agreed that this amount is a genuine pre-estimate of the vendors loss of interest for the purchase money and liability for rates and outgoings."
8. On the question of the time for which interest should run, I do not accept Mr Ellison SC's submission that interest should run until the Property is sold to Elizabeth pursuant to the outcome of these proceedings. In my view equity requires Elizabeth to compensate the Estate for that delay which is solely referable to her failure to exercise her rights under the Agreement.
9. In the events which happened, Elizabeth's entitlement to purchase the Property under the Agreement for $2,300,000 arose at 9am on 20 May 2016, being 48 hours after she gave Max her bid and with no subsequent bid being received (Robert taking no point that he did not receive the bid at the same time or at all). The Agreement stated that the Sale Contract "will provide that settlement will take place within four weeks of acceptance of a winning bid". Had she complied with the Agreement, Elizabeth would have entered into the Sale Contract on 20 May 2016 and settled four weeks later on 17 June 2016. Interest should run from the latter date.
10. However, consistently with the view that I have taken that she should have moved to sell the Property to herself in accordance with the Agreement and left it to Max to commence proceedings to restrain her, it would be inequitable for her to continue to pay interest past the point when Max definitively denied that she was entitled to act on the Agreement. This is because at that point the Estate was suffering a delay not solely because of Elizabeth's inaction. In the events which happened, Max did this when he filed his defence to Elizabeth's cross-claim on 23 April 2018. That should be the terminal date for Elizabeth's liability to pay interest to the Estate. Interest is payable for the period on the entire purchase price because the Court has found that Elizabeth did not pay the deposit until later in 2018.
11. Finally, I should record three matters which I have not overlooked in reaching my conclusions on interest and more generally.
12. First, I have considered whether interest should not run for that period when Max's caveat was registered on the Property (see paragraph [40] above). I have rejected this because it is Elizabeth's inaction which caused delay during that period. Had she been advised to issue a lapsing notice, there is every chance the present dispute would have been brought to a head at that time.
13. Second, the fact that Robert has said that he does not require Elizabeth to pay interest is irrelevant. That is a matter between him and Elizabeth. The Court will grant relief to Elizabeth on the terms which the Court considers equity requires in the interests of the Estate.
14. Third, by her inaction, Elizabeth was in breach of the Agreement. However, I accept Ms Cohen's submission that this was not deliberate but was the result of Elizabeth's erroneous views about her rights. Therefore, the fact of her breach is not a matter to be weighed against her in the exercise of the Court's discretion. Furthermore, and importantly, no other party (in particular, Max) has purported to accept any breach on her part and accordingly sought to terminate the Agreement. The Agreement therefore remains on foot.

Conclusion

1. The Court will give the parties an opportunity to bring in orders to give effect to these reasons, including to make good Elizabeth's undertaking to the Court that she will file proper accounts for the Estate. Looking at the matter realistically and with a view to reducing costs, the parties should now attempt to agree a suite of orders, including as to the costs of these proceedings, that will enable the Property to be sold to Elizabeth for $2,300,000 (together with the interest calculated in accordance with paragraphs [154]-[155] above) and the Estate to be finalised. Those orders should include provision for the sale of the Property to Elizabeth to be completed with 28 days of the orders being made. Elizabeth should be entitled to set off, from any amounts she must pay to the Estate, her interest as a beneficiary to the extent that can be practicably done.

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DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 February 2021