MacAlpine v MacAlpine

Supreme Court of NSW|2019-12-20|Before: Parker J

Judgment

This is an application for a family provision order out of the estate of the late Anita Amy (known as "Nita") MacAlpine who died in August 2018 at the age of 94. The application is made under Part 3 of the Succession Act 2006 (NSW). Except where otherwise stated, statutory references in this judgment are to that Act. For convenience, and without intending any disrespect, I will refer to the members of the deceased's family by their given names.
The deceased married Laurence MacAlpine in the late 1940s or early 1950s. He predeceased her, dying in 1991. They had two sons, Stuart MacAlpine and Grant MacAlpine.
The deceased's last will was made in July 2009. By that will, she appointed Grant as her executor. Apart from some relatively small legacies to her friends and to her grandchildren, she left her whole estate to Grant.
The deceased left nothing to Stuart. But as I will describe later in this judgment, Stuart had earlier received significant assets, including a large rural property, by way of inheritance and gift from his family.
Grant obtained probate of his mother's will in November 2018, about three months after her death. For the purposes of the application for probate, the deceased's estate was valued at approximately $2.5 million. Much of the estate consisted of listed company shares and its value has probably declined as a result of the financial impact of the Covid-19 emergency. Nevertheless it is still substantial.

Chronology of key events

The deceased was born Anita Amy Field in February 1925. She was the only child of Elwin Monteith Field and Amy Jessie Annie Field. She appears to have had a background in grazing or farming on both sides of her family.
The deceased's father owned a large grazing property (10,812 acres; 4,375 hectares) in north-western New South Wales called "Bogan Downs". When the deceased's father died, the property passed to her mother. It had a frontage to the Bogan River and lay to the east of the township of Coolabah. Coolabah is about 80 kilometres north-west of Nyngan.
In about 1949 the deceased acquired for herself a grazing property near Coolabah called "Tubba Villa". The deceased purchased Tubba Villa from an aunt or cousin who had previously owned it. The property was similar in size to Bogan Downs. Part of its northern boundary formed part of the southern boundary of Bogan Downs.
The deceased's husband, Laurence, was born in September 1912 and was thus twelve years her senior. He had some land of his own. This property was called "Double Tanks". It became their family home.
Double Tanks was made up of a number of smaller parcels of land which were accumulated by Laurence over time. The property, while still located in the Coolabah area, was about 40 kilometres away from Bogan Downs and Tubba Villa.
The evidence does not identify precisely when the deceased married Laurence. Stuart was born in June 1953 and Grant was born in October 1955.
In December 1958 the deceased's mother died. By her will she appointed the deceased as her executor and trustee. She left Bogan Downs, together with 500 head of sheep to be selected by her trustee, to Stuart, her grandson. The rest of her estate she left to the deceased.
Bogan Downs was a Western Lands leasehold, not a freehold, property. At the time Stuart inherited it, he was five years old. His grandmother's will directed that the property and the sheep should be transferred to him as soon as he should be permitted to hold them. Until then, the deceased as trustee was directed to carry on the grazing operations at Bogan Downs and accrue any profits for Stuart's benefit.
Following her mother's death, the deceased was registered with the Crown Lands Department as the owner of Bogan Downs, as executrix of her mother's will. The evidence is scant, but it would seem that the deceased and Laurence managed Bogan Downs alongside Tubba Villa and Double Tanks while Stuart and Grant were growing up. In evidence, Stuart described all three properties being used for running sheep. Both Bogan Downs and Tubba Villa had a carrying capacity of about 1,500 ewes. Double Tanks was not breeding country and was used to run about 800 wethers.
Double Tanks is not far from Coolabah itself. Coolabah was, and is, only a small village. It had a public school, which catered to primary school students. There was also a pub, and a shop which doubled as the post office.
Both Stuart and Grant attended the local primary school at Coolabah, and then went away to boarding school. Stuart left school in 1970 at the age of 17 and returned to live with his parents at Coolabah. Grant followed suit in the following year (when he would have been 16). Neither pursued tertiary studies. According to Stuart, this was because their parents wanted them to work on the properties.
In April 1971 the deceased obtained approval from the Crown Lands Department for the transfer of Bogan Downs to Stuart in accordance with his grandmother's will. According to Stuart, the property was transferred into his name about six months later, in October. (Stuart had turned 18 in the meantime, in June: the transfer had become possible because of the statutory reduction in the age of majority from 21 to 18 which took effect on 1 July 1971: Minors (Property and Contracts) Act 1970 (NSW), s 8).
In 1969, the deceased and her husband had established a company called Tubba Villa Pty Limited ("TVPL"). The company had four shares, divided into two classes of two shares each. Laurence and the deceased each owned one of the shares in one class (referred to by Stuart as "preference" shares and in the inventory of Laurence's assets for the purposes of probate as class "A" shares). Stuart and Grant each held one of the shares in the other class, which carried the right to the proceeds of the company's assets on liquidation. It seems that each of the four family members was a director of TVPL. The deceased was the managing director and had a casting vote.
Neither the company's articles of association nor any historical search of it were in evidence. But it appears that the company was established to allow Laurence and the deceased, as the founders, to build up assets from which they could benefit during their lifetimes but which would ultimately be shared by Stuart and Grant. That was a recognised method of reducing death and estate duties at the time: see Weinstock v Beck [2011] NSWCA 228 at [106] where Handley AJA described it as a "Robertson scheme", after Robertson v Federal Commissioner of Taxation (1952) 86 CLR 463.
When Stuart and Grant returned from school, they were brought into the family grazing business. The four family members formed what Stuart described as a "livestock partnership". Its assets included some plant and equipment as well as livestock. It seems that the business was operated on all three properties. According to Stuart, despite the transfer to him of Bogan Downs, his parents continued to manage the property.
The livestock partnership was not governed by any formal partnership agreement. No financial records of the business were in evidence. The relationship between the operations of the business and those of TVPL is obscure. There were no financial records of TVPL in evidence either.
According to Stuart, he took over running Bogan Downs himself in 1976. But the livestock partnership appears to have continued. Whether the partnership operations continued on Bogan Downs after 1976 is not clear. It does seem that at some point Stuart (and Grant) had stock of their own, outside the partnership.
In May 1977 the family purchased a property called "Salisbury" at Girilambone, which is east-south-east of Coolabah. Salisbury was about 130 to 140 kilometres from Bogan Downs and Tubba Villa. It had, and has, the advantage over the Coolabah properties of a secure water supply. The property was purchased in the name of TVPL.
Part of the cost of purchasing Salisbury was funded with a bank loan. According to Stuart, money was also borrowed from the deceased's aunt (her late mother's sister). According to Stuart, the purchase price was about $280,000. The evidence does not identify how much of that was borrowed.
Three months after the purchase of Salisbury, in August 1977, the deceased gifted Tubba Villa to Grant. This meant that Grant too now owned his own grazing property. There was a house on Tubba Villa, and at some point Stuart and Grant moved there from Double Tanks.
In May 1982, Stuart married his wife Patricia Anne (also known as "Trish") MacAlpine. After the marriage, she moved in with him and Grant at Tubba Villa.
Soon afterwards, in August 1982, the family purchased another property at Girilambone, adjoining Salisbury, called Booka. The purchase price was about $345,000. Laurence and the deceased were the purchasers, but Stuart provided $65,000 to his father to assist in the purchase and paid one-quarter of the legal bill for the conveyancing. Grant also contributed $65,000 (and, presumably, one quarter of the conveyancing cost).
In December 1983 Stuart and Patricia's first child, Amanda Aimee MacAlpine, was born. They had a second daughter, Marissa Anne MacAlpine, in August 1985.
In about 1986 Stuart and Grant bought another property at Coolabah together. This property was called "Mount Pleasant" and adjoined Bogan Downs. According to Grant, the property cost $170,000. Laurence provided $40,000 to Stuart to help meet his share of the purchase and the deceased provided $40,000 to Grant to help him with his share.
At around the same time, the family bought a Cessna aircraft. Stuart and Grant both learned to fly in it, and used it (mainly) to fly between Girilambone and Coolabah. According to Stuart, the aircraft was bought for $40,000 by the deceased, Grant and himself.
In April 1986, Grant married his wife Cathy. A year or so beforehand Grant had moved to Salisbury, and that became his and Cathy's matrimonial home. In April 1987, Stuart and Patricia had a son, Andrew Stuart MacAlpine. Later that year, in October, Grant and Cathy also had a son, William.
In April 1987, the deceased gifted her half share in Booka to Laurence. This meant that he was now the owner of both Double Tanks and Booka. Stuart owned Bogan Downs and Grant owned Tubba Villa. Between them they owned Mount Pleasant. TVPL owned Salisbury.
Stuart and Grant both gave evidence that they had a very happy upbringing with their parents. Stuart and Grant were also themselves the best of friends. Grant was a groomsman at Stuart's wedding and, as already noted, after the wedding he continued to share a house with Patricia and Stuart.
Sadly this did not last. Tensions arose between Stuart on the one hand, and Grant and Laurence on the other. The tensions appear to have centred on Salisbury and Booka. These were the properties in family, rather than individual, ownership. Stuart felt that they were being run in Grant's interests, and he was being "pushed out". According to Stuart, his father told him that Grant would manage the properties for the family, without his (Stuart's) involvement. At some point there was an altercation between Stuart and Grant at Booka, which led to punches being thrown and a scuffle.
By 1988 both sides were communicating with each other through solicitors. Stuart's solicitor was Mr Tony Chalker, of Cobar. Mr Don Iverach of Flashman & Co, a firm in Nyngan, was retained by Laurence on behalf of TVPL, in effect representing the rest of the family. Flashmans seem to have been the family's long-standing solicitors.
A letter from Flashmans to Mr Chalker from September 1988 is in evidence. The letter referred to an offer (the terms of which were not recorded) having been made by Grant to Stuart and rejected. It continued: If there is no chance of the position being otherwise reviewed by your client it would appear now necessary for the Company to organise the subdivision and disposal of "Salisbury" between Mr Grant MacAlpine and your client. It is wishful thinking to contemplate an ordinary and co-operative continuation of the family partnership having regard to the strained relationship now existing between the parties. The system previously used in sharing the assets and the profits will not now work. To put it simply, your client will have to go his own way. Obviously there will be an appropriate division of stock and plant (subject to liabilities) and adjustment for values. We need to have more instructions before we can present a detailed submission to you but in the meantime, your client can start considering his approach to the matter.
The letter continued, referring to TVPL: Whether or not improvements are carried out on the assets held by the Company is a matter for decision by the directors, and the shareholders, as such, have no say. The managing director continues to be Mrs. MacAlpine as has been the case since incorporation. There was an Extraordinary meeting of members held last July and the time was abridged but unfortunately not all members were able to sign the acceptance of the abridgment and therefore it is necessary for the Extraordinary meeting to be held again. We enclose a copy of our letter to your client information him of the time, date and place of this meeting.
Then the letter stated: It seems more than reasonable to expect your client to talk to his brother and parents as to the arrangements to give effect to the winding up of the business. It is going to be an expensive exercise if communications are limited to the passage of correspondence and telephone calls between us.
Finally, the letter returned to the division of Salisbury: We enclose a copy of a submission relative to the subdivision of "Salisbury". The area proposed to be transferred to your client is shown as the eastern section and is coloured with blue edging. The present debt to the State Bank will need to be shared and probably secured with replacement mortgages.
Meanwhile, Stuart had been building a home for himself and his family at Bogan Downs (the property had not previously had a homestead on it). The building work was completed, and Stuart and his family moved there, in 1989.
In evidence is a note of a meeting between the parties in August 1989. The meeting took place at the offices of Flashmans. Laurence, the deceased, Stuart and Grant attended. Also present were Mr Chalker and Mr Iverach.
The note records that Laurence opened the meeting by referring to the circumstances in which TVPL had been formed. He said that the company now had limited use and suggested that it be wound up and its assets distributed. A lengthy discussion followed, which resulted in the parties agreeing an eight point plan. This involved, among other things: (1) the subdivision of Salisbury "as had been previously suggested by" Grant, with him to take the western half (which apparently included the buildings) and for Stuart to take the eastern half (with the right to use the woolshed for a period of three years, and with Grant making an adjustment in Stuart's favour to reflect the value of the improvements on his half); (2) Grant selling Tubba Villa to Stuart "at valuation"; (3) Stuart and Grant selling Mount Pleasant and dividing the proceeds between them; (4) Laurence making "some adjustment to Stuart re Booka with the amount in question to be decided but based on the cash contribution by Stuart when the property was purchased originally"; (5) the cattle running on Tubba Villa being mustered and split up; (6) the rest of TVPL's assets being sold and the proceeds distributed.
Later the jointly owned stock and plant were divided up and the partnership ceased to operate. This seems to have happened in 1990. But the other elements of the plan were not implemented.
According to Stuart, Laurence's health had been ailing since the late 1980s. In April 1990, Laurence (then aged 77) made what proved to be his last will. He named the deceased and Grant as his executors. He left Booka to Grant, subject to a life estate in favour of the deceased. The residue of his estate (including Double Tanks) he left to the deceased. He left Stuart nothing. Less than a year later, in March 1991, he died.
Following Laurence's death, the deceased lived alone at Double Tanks. She helped out at the Coolabah school. She also frequented the Coolabah shop. The deceased was friendly with Joan Gaffey who, together with her husband, Bill Gaffey, had run the shop and the postal service for decades. The deceased would also visit the Coolabah pub.
In January 1992 there was an incident which resulted in the final breach between Stuart and Grant. Stuart wanted to agist some of his sheep at Salisbury and took the view that he was entitled to do so because he owned a half share with Grant in TVPL. Grant's position was that he and his mother had decided on behalf of TVPL that they did not wish Stuart to do so.
Grant's position would appear to have been legally correct, although it may not have accorded with previous practice of the parties. Be that as it may, Stuart and Patricia brought some of his sheep to Salisbury and attempted to unload them. This was resisted by Grant and his father-in-law David Wass. There was a fracas involving Grant, Mr Wass, Stuart and Patricia. According to Stuart, Patricia was hit by both Mr Wass and Grant, and suffered a fractured ankle and bruising. The police became involved, but do not appear to have taken any formal action against any of the parties involved.
Following this incident, the deceased and Grant took steps to have TVPL wound up. Salisbury was sold at auction and purchased by Grant for $1,080,000. Stuart ultimately received the sum of $480,000 from the liquidation. Stuart later bought out Grant's share of Mount Pleasant (which had unsuccessfully been offered at auction with a reserve price of $90,000) for $20,000.
By this point, ownership of the family assets had been completely separated. The deceased continued to live at Double Tanks, which she now owned as a result of inheriting it from Laurence. Stuart was living at Bogan Downs, which he owned. He also owned Mount Pleasant. Grant was living at Salisbury, which he owned. He also owned Tubba Villa and (subject to his mother's life interest) Booka. Grant managed all of his mother's financial affairs, both concerning Double Tanks and her properties in Nyngan (see [76] below). Stuart was not involved.
In 1994 Stuart commenced proceedings against his mother and Grant, as executors of Laurence's estate, in this Court. The proceedings centred on the $65,000 provided by Stuart to his father at the time that Booka was acquired. On Stuart's behalf it was alleged that the informal family partnership extended to the ownership of Booka. He claimed a one-quarter interest in the property. His claim was eventually settled at mediation in June 1995. This was followed by a deed of release executed in August. Under the settlement, he was paid the sum of $55,000 out of the estate.
This was the last financial dealing between Stuart and the other members of his family. At this point Stuart was aged 42 and Grant was almost 40. Both of them continued to live on their respective properties (Stuart on Bogan Downs, and Grant about 140 kilometres away on Salisbury).
At the time of the settlement the deceased was aged 70. She continued to live at Double Tanks for almost another twenty years. For the second half of that period a local, Nicholis Bruce Davroen, acted as her carer. Initially he stayed in one of the cottages on Double Tanks and cared for her on a part-time basis. From about 2009 he moved to the main house and cared for her on a full-time basis.
In November 2014 Grant made arrangements for the deceased, who was then aged 89, to move to an aged care facility in Nyngan. Her physical and mental capabilities gradually declined after her admission. Exercising a power of attorney given to him by the deceased, Grant sold Double Tanks on her behalf in November 2017. The sale price was $655,000. The deceased died on 4 August 2018.

Witnesses

Stuart and Patricia were the principal witnesses in the case for the plaintiff. Both gave lengthy affidavits and were cross-examined in some detail. I will make some general comments on their credibility as witnesses below.
Stuart's daughters, Amanda and Marissa, also gave evidence in support of his case. So too did Mr Davroen, Mrs Gaffey, and two other locals who knew the deceased. The principal focus of the evidence from these six witnesses was the relationship between the deceased on the one hand and Stuart and his family on the other. I will refer to their evidence in more detail when addressing the deceased's relationship with Stuart, below.
Grant gave evidence in support of the defence case. He too was cross-examined at some length and I will make some general comments on his credit below.
Stuart's credibility: In giving evidence in these proceedings, Stuart was required to try to remember events going back almost fifty years. Most if not all of Stuart's evidence about financial and legal matters appear to have been based on his unaided recollection, if not reconstruction. One would not expect such evidence would necessarily be reliable at the best of times, and the limited documentary evidence which is available is generally inconclusive at best.
This in itself would be enough to engender reservations. But there are some specific features of Stuart's evidence which require mention as well.
Stuart has had his share of worries with his own family. In particular, his son Andrew, has spinal muscular atrophy. This is a congenital condition which was diagnosed in late 1988, about eighteen months after Andrew was born. One of his sisters also has the condition but much more mildly. Andrew and his sister also both have Attention Deficit Disorder ("ADD").
When Andrew was diagnosed with spinal muscular atrophy, Stuart and Patricia were advised that the condition was a progressive one and that Andrew would probably die before school age. Andrew has confounded this expectation; although he is in a wheelchair he lives and works in Sydney and is now engaged to be married. Nonetheless his condition must remain an ever-present worry for his parents.
Stuart has also had difficulties with his mental health. In evidence were notes of an admission to hospital in March 1997 where he was diagnosed as having "acute depression". Also in evidence is a report prepared in March 2000 by Dr Peter Snowdon, a consultant psychiatrist. The report was apparently prepared for the purposes of a claim for a disablement benefit under an insurance policy.
Dr Snowdon reported that Stuart had been himself diagnosed with ADD nine years before (that is, in 1991). On diagnosis, Stuart apparently realised that his condition had been with him since he was a child. Dr Snowdon reported that Stuart had been placed on medication for eight years beforehand (that is, in late 1991 or early 1992) and had stayed on medication for two years.
Dr Snowdon thought, as a result of his interview with Stuart and Patricia, that Stuart leaned heavily on Patricia. He thought Stuart's memory and comprehension were "severely impaired" and at a later point described him as "almost cognitively impaired". Dr Snowdon attributed this to a severe learning disability going back to childhood. He also recorded that at times the pain from Stuart's back condition (described below) interfered with his ability to recall things.
This description was consistent with what I observed of Stuart when he gave evidence before me. It was difficult to get him to answer in a clear and direct fashion the questions which he was asked. When he did respond to questions about specific events, his answers were often vague or he could not remember. He stated that his memory was "not that good" and that appeared to be an understatement. He said that Patricia looks after financial matters for the two of them.
I have also rejected some key allegations in Stuart's case on a factual level. These include Stuart's allegation that the deceased cheated him out of parts of his inheritance, and that the rift between Stuart and his family was caused, at least in part, by sectarianism towards Patricia. I refer below to various specific instances where I found Stuart's evidence unreliable or unsatisfactory.
Overshadowing all of Stuart's evidence in this case is his attitude towards Grant. Stuart now apparently sees the rift which arose between himself and the rest of his family, and his exclusion from his parents' wills, as having been orchestrated by Grant in a successful attempt to increase his share of the family inheritance. As I describe in more detail below, this interpretation of events appears to have been fuelled by personal resentment, and, perhaps, jealousy.
I suspect that this attitude has coloured Stuart's evidence. Because of this, and the other factors to which I have referred, I have treated his evidence with caution.
Patricia's credibility: In contrast to Stuart, Patricia presented as confident and knowledgeable. She appeared to relish the cut and thrust of cross-examination. But she did not emerge unscathed. I refer below to her admission to making false statements in support of bursary applications for Andrew. And in rejecting key factual allegations in Stuart's case I have also rejected aspects of her evidence in support of those allegations.
I also got the impression that Patricia shares Stuart's attitude towards Grant, and that there was no love lost between her and the deceased after the rift arose. Overall I have also treated her evidence with caution.
Grant's credibility: Like the evidence of Stuart and Patricia, Grant's evidence was given long after most of the relevant events had taken place and he had a direct interest in the result of the case. But nothing happened in the course of the trial to make me think that he was not doing his best to present an objective picture. Within its limitations I see no reason not to accept his evidence.

The deceased's estate and its origins

The deceased appears to have been independently wealthy. She bought Tubba Villa for herself when she was only about 24. There is no evidence about what the cost of buying and stocking Tubba Villa was, or about what other family wealth the deceased may have had.
Laurence does not appear to have come from a wealthy family. Stuart's evidence referred to Laurence having met the deceased when delivering mail, and to there having been some opposition from the deceased's family to the marriage. But by the time Stuart was born in 1953 Laurence was forty-one years old and would have been working for more than twenty years. Presumably that was how Laurence had financed the purchase and stocking of Double Tanks.
The deceased was 33 in 1958 when she inherited the residue of her mother's estate. That residue included two properties in Nyngan. One was a house. The other was a shopfront used to operate a café business called the "Niagara Café". There is no direct evidence of other assets, but for reasons given below it may have included some listed shares, including shares in the Broken Hill Proprietary Company Limited ("BHP") and the brewing company Tooth & Co. It may also have included stock beyond the 500 head of sheep left to Stuart.
The evidence does not clearly identify what assets were put into TVPL when it was established in 1969. A letter written by Laurence, to which I refer in more detail below, states that he started TVPL with "shares I had accumulated over the years". On the other hand, Grant in his affidavit stated (without objection, although he would not have had personal knowledge of this) that TVPL was established with contributions from both his father and his mother, "in the form of shares, cash and commercial real estate". In his letter, Laurence stated that over ninety per cent of the money required to purchase Salisbury in 1977 had been put in originally by himself and the deceased. On balance it seems that the deceased did make a capital contribution to TVPL when it was established, but the nature and value of that contribution is unknown.
When Laurence and the deceased purchased Booka in 1982, they paid for the whole of the purchase price apart from $130,000 contributed by Stuart and Grant. That means Laurence and the deceased would have paid $215,000 towards the purchase. The evidence does not identify who contributed what.
There was uncontested evidence from Grant that his parents gave substantial gifts over the years to Stuart and himself. Laurence gifted Stuart and Grant $20,000 each in 1970 and a further $10,000 each in October 1977. There was also the $40,000 provided to each of Stuart and Grant by their parents for the purchase of Mount Pleasant. Grant also said that his mother gave her share of the Cessna aircraft (see [33] above) to Stuart in 1990. Grant said the value of that share was around $20,000.
Grant also said that in 1989 his parents relinquished their share of what he described as "agistment proceeds" from Bogan Downs, Tubba Villa and Mount Pleasant in favour of Stuart and himself. He said this amount was approximately $61,600, and was shared equally between them.
The phrase "agistment proceeds" would normally refer to income received from third parties for grazing the crops on the land. That is not easy to understand in circumstances where Bogan Downs was already owned by Stuart and Tubba Villa by Grant, and Mount Pleasant by the two of them. It may be that Grant was intending to refer to profits from the livestock partnership. The question was not explored in the evidence but Stuart did not dispute what Grant said.
The deceased was 66 years old when Laurence died in 1991 and she inherited his estate (apart from Grant's remainder interest in Booka). The inventory sworn for probate is in evidence. As well as Double Tanks (estimated value of $140,000) the estate included listed shares worth approximately $160,000 (including 9,400 shares in BHP and 6,254 shares in National Australia Bank ("NAB")). It also included 1,400 head of sheep and 60 head of cattle and various motor vehicles and items of plant.
There is no evidence as to the deceased's earnings over her lifetime. She owned Tubba Villa from about 1949 until 1977, and a half share of Booka from 1982 to 1987. She appears to have participated on her own account in the family grazing operations, first with Laurence, and then as a member of the livestock partnership from when it was established in about 1972 until its dissolution in 1990. As well as profits from grazing activities, she would have received income from the properties in Nyngan and dividends from her listed shares. She may also have received dividends from TVPL.
The inventory of property which accompanied the grant of probate for the deceased's will included: (1) cash at bank ($870,000); (2) the two properties in Nyngan ($260,000); (3) listed shares ($1,310,000); (4) a 2017 Toyota Hilux ($40,000); and (5) jewellery and personal effects ($20,000).
The listed shares included 25,835 shares in BHP and 25,835 shares in South32 Limited, which was demerged from BHP in 2015 (total value $950,000) and 5,695 shares in NAB ($190,000). It will be recalled that the deceased inherited 9,400 shares in BHP and 6,254 shares in NAB from Laurence. She must therefore have had, or later acquired, at least 16,000 shares in BHP of her own.
On the valuations given in the inventory of property, at the time probate was granted the gross value of the estate was $2.5 million. After the grant of probate the estate's shares remained unrealised and their value continued to rise. Updating figures show that by December 2019, when the hearing began, the net value of the estate was estimated at $2.45 million. This was after Grant as executor had incurred or paid out an estimated $170,000 in administration expenses (including the costs of these proceedings) and had distributed the legacies under the will, totalling $144,000.
Since December 2019, however, the Covid-19 emergency has seen heavy falls on the Australian stock market, which remains volatile. There was no updating evidence as to the current net value of the estate but it would have declined appreciably.

The deceased's management of Bogan Downs

In these proceedings, Stuart accused his mother of having mismanaged, and in part misappropriated, his inheritance from his grandmother. He said that while he received Bogan Downs itself he never received the benefit of the sheep left to him in his grandmother's will, or of the operations on Bogan Downs before it was handed over to him in October 1971. He alleged that his mother had used that income for her own benefit, or for the benefit of other members of the family. He said this continued with the income he should have derived from Bogan Downs after 1971. He claimed that the purchase of Salisbury, half of which ultimately passed to Grant, and the wealth ultimately left by the deceased in her estate, were built on monies misappropriated from him.
These accusations were never put to the deceased in her lifetime. The only documentary evidence presented at trial in support of them came from a ledger book which Stuart has in his possession. The specific allegations of misappropriation are largely based on entries in the book, and apparently derive from a review of the book undertaken by Stuart for the purposes of these proceedings. As the book is the foundation for Stuart's case on this point, I have analysed it in some detail.
Stuart exhibited copies of the cover and the pages to one of his affidavits, but some parts were difficult to read and the book itself was not in evidence. On its cover the book bears a label on which the words "Est AJA Field" (a reference to the deceased's mother) had been written and has been crossed out. Lower down on the label appears the name "MacAlpine" together with one or more initials that are illegible on the copy in evidence.
The book covers the financial years from 1962-1963 to 1989-1990. For each financial year it contains lists of income and expenditure items. Each item includes the date, the payer or payee, and the amount. There are also occasional supplementary figures and other notations. In most of the years, the entries have been ticked or crossed off.
Most of the entries up until 1974-1975 appear to be in the same handwriting, which Stuart identified as the deceased's. The 1963-1964 expenditure entries are in a different handwriting, as are the occasional notations and supplementary figures in other years. Stuart identified a handful of the notations as having been made by Laurence or by the family's accountant (whose name does not appear in the evidence). It is reasonable to suppose that the 1964 expenditure entries and the supplementary figures were written by Laurence, but the evidence is insufficient to confirm this for sure.
Stuart said that he himself started making entries in the book in 1976 (this was when he said he started running Bogan Downs) and entries in a recognisably different handwriting begin to appear in that year. Up until the 1981-1982 financial year, most of the entries are in Stuart's handwriting. These are supplemented by entries in the deceased's handwriting, a third handwriting (which may be Laurence's) and an unidentified fourth handwriting (possibly Grant's) which first appears in 1981.
From 1982-1983 onwards, the arrangements for making the entries appear to have changed. Yet another handwriting appears. All of the entries are written in that handwriting. Occasional supplementary figures and notations appear, apparently written by at least two other people. I suspect that the entries from 1982-1983 onwards were written by Patricia. As already noted, Stuart said that she looked after the family finances, and the writing appears similar in style to her signature. But this was not confirmed in the evidence. It is impossible to identify the writers of the supplementary figures and notations.
The items of income and expenditure recorded in the book are grouped into categories. In each year the income includes receipts from sale of stock and wool, and in some years, skins or hides. There are also typical items of farm expenditure, such as stock purchases, rates, contractor payments, labour and agistment. From 1977-1978 many of the income and expenditure listings include a "Salisbury" item, apparently representing a share of the income and expenditure referable to that property. There are also interest receipts from TVPL from 1977-1978.
The book also includes categories of non-farm income and expenditure. Between 1962-1963 and 1970-1971 it records dividends received from various companies, including BHP. From 1971-1972 it includes private health insurance payments. From 1972-1973 it includes medical and dental expenses. From 1982-1983 it contains personal non-deductible expenditure as a separate category. In 1984-1985 it includes Patricia's separate income, the figures for which have been completed in another handwriting, presumably the accountant's.
The preparation of a full set of accounts for an entity would involve the preparation of at least three books of account. There would be a cash book, recording all of the income and expenditure in that entity's bank accounts, and allocating them to ledger accounts; a journal book similarly recording and allocating non-cash transactions; and a general ledger recording the items of income and expenditure from the cash book and the journal in the relevant ledger accounts.
The ledger book in this case does not appear to be a general ledger of the type I have described. It does not contain any account numbers, or any items derived from journal entries. Nor does it appear to be a cash book. Instead it seems to have been prepared from primary records, such as bank statements, remittance advices and invoices, for submission to the accountant so that the accountant could use it to prepare the relevant tax returns. That is consistent with the fact that the book contains annotations identified as having come from the accountant. Presumably he or she also ticked or crossed off the entries when they had been processed.
Stuart was asked in cross-examination when it was he obtained the book in his permanent possession. He said he got it "many years ago" but when asked how many, he said "got no idea". When asked whether he had the book from taking over Bogan Downs in 1971, he said it remained at Double Tanks and he did not "get the physical on it" until "much later". When asked how much later, he said "got no idea". This evidence well illustrates the difficulties in extracting information from Stuart at the trial.
In fact it is clear that Stuart wrote some of the entries in the book from 1976 onwards and he must have had access to it for that purpose. Nevertheless, up until 1982 there remained some entries in the book by the deceased (and possibly Laurence). It is possible that the book remained at Double Tanks and was written up there before being sent to the accountant each year.
But after the new person took over making the entries in 1983 those entries included personal income and expenditure of Stuart and Patricia, and I think it is likely that the book was in Stuart's possession from then on (in fact, as already stated, I suspect the entries were actually written by Patricia). In any event, the book ends in 1990, at a time when Stuart was completely disentangling his financial affairs from those of his family. It would seem likely that, if he did not already have it, Stuart would have obtained the book permanently at this time.
In his affidavit, Stuart said that the ledger book contained "clear examples" of him being cheated out of his entitlements under his grandmother's will in favour of his mother, father and brother. He set out a list of "irregularities" from the book in support of his allegations. These included the following: (1) The ledger book only begins in 1962-1963. Stuart pointed out that his grandmother died in December 1958 and probate of her will was granted to his mother in July 1959. There is no record of income in the intervening period. (2) Furthermore, Stuart said, income from wool and livestock sales only begins in the book in 1963-1964. (3) Stuart referred to the dividend income recorded from 1962-1963 to 1970-1971. He reasoned that the shares must have been purchased with profits from the operation of Bogan Downs. He said he did not know what had happened to them. The implication was that they had been appropriated by his mother. In this regard, Stuart pointed out an entry in 1971-1972 where a dividend from Tooth & Co had been recorded and then crossed out, with an annotation to "AAM", which were his mother's initials. (4) Stuart referred to an annotation against the wool income in 1970. The annotation reads "Pay Stuart one fifth". The suggestion was that Stuart had been entitled to the other four-fifths and had not received it. (5) The book contains an entry in 1973 recording a payment of "wages to self". Stuart said he had never received any wages out of his grandmother's estate. (6) The book contains entries for insurance payments on the Niagara Café from 1962-1963 to 1966-1967. As we have seen, the Café fell into the residue under the deceased's mother's will and therefore belonged to the deceased. Stuart suggested that this was an instance of her applying monies from Bogan Downs for her own personal benefit. (7) Stuart referred to contractor costs from 1962-1963 to 1966-1967 which were paid for land clearing. According to Stuart, clearing activities took place not only on Bogan Downs but also Tubba Villa. The suggestion was that income from Bogan Downs had been applied to improve Tubba Villa. (8) The book contains entry for the purchase of cattle which begins in 1967-1968. There was also expenditure in 1969 and 1970 which Stuart said was attributable to the construction of cattle yards at Bogan Downs. Stuart said that he had never received any proceeds of sale of cattle, or any profits from the cattle operation. (9) Stuart referred to entries in the book recording the purchase of horses. He said that his father had a quarter horse business. Stuart also referred to fodder costs which he identified as "fodder for horses". According to Stuart, these included supplements and salt licks which were required for running horses on Double Tanks (which is red soil country) but not on Bogan Downs (which is black soil country). Stuart acknowledged that horses were used on Bogan Downs for mustering, but the suggestion was that the expenditure which he identified was for his father's benefit. (10) Stuart referred to a payment for electricity in October 1970. He said that there was no homestead on Bogan Downs. The suggestion was that money from Bogan Downs was being used to pay expenses elsewhere, presumably on Double Tanks. (11) The book contains an entry on 20 May 1975 recording the purchase of two horses from Laurence in the amount of $1,000. This is set off against a sale to Laurence of a hundred cattle for $1,000, equating to $10 a head. Stuart suggested that this was an undervalue. He referred to a purchase from a third party on 3 June of thirty-one cattle for $41 per head. (12) Stuart also referred to entries for interest income on bonds in 1976 and 1977. The allegation was not entirely clear, but it may be that this was said to be another instance of investments being purchased with income from Bogan Downs and then misappropriated.
Most of the entries in the book for 1971-1972 have been annotated with an "E" or an "S". Such annotations do not appear in any other year. Stuart said that he believed they were made by the accountant, with E representing the estate and S representing him personally.
In his affidavit, Stuart provided some further context to his allegations. He said that when he first returned to Bogan Downs in 1970 after leaving school he wanted to "go up north" and work as a jackeroo. He said that his mother disapproved and said that if he went "you will sign everything over to us". He said that, being only seventeen at the time and not wanting to see his mother upset, he complied and his mother thus "retained control" for two years after he turned sixteen.
Stuart also complained about the way in which the bequest of five hundred sheep to him was ultimately handled. He said: "I was never told what sheep I owned, it was just treated as part of and absorbed in the stock partnership which I received nothing out of in the end. Grant made no contribution in livestock to the stock partnership". Stuart said that despite the transfer of Bogan Downs in 1971, he did not start running it until 1976.
Counsel for Grant contended in the course of the evidence that these proceedings were not the proper venue for allegations of the type made by Stuart. Counsel submitted that any allegations of misappropriation were statute barred. According to counsel, if Stuart was to raise the allegations at all, he should have done so in his 1994 proceedings in this Court. Counsel for Stuart responded that those proceedings concerned only his father's estate, not his mother's. This submission is technically correct, although it overlooks the fact that some of Stuart's allegations concerned transactions in which he was supposedly cheated by his father. More importantly, it does not address the limitation point.
The Limitation Act 1969 (NSW), s 52, provides that the limitation period on a child's cause of action does not start running until the child reaches his or her age of majority. When the Act was originally enacted, s 11 provided for an age of majority of twenty-one. Among the changes made by the Minors (Property and Contracts) Act 1970 (Sch 1) was to amend s 11 so as to make the age of majority eighteen. As already mentioned, Stuart turned eighteen in June 1971. The limitation period on any claim which had accrued to that point concerning the mismanagement of his inheritance would have begun to run a few weeks later, on 1 July, when the amendment took effect.
Counsel's submissions proceeded on the basis that the relevant limitation period was that which applied to an action in devastavit: Bird v Bird [2013] NSWCA 262. But devastavit is an action against an executor, and the deceased's responsibilities as executor would have ceased once the estate's debts and funeral expenses were paid and the legacies under the will distributed, which presumably would have happened in 1959 or 1960. Thereafter the remaining assets held by the deceased would have been held by her as trustee for the trust established under the terms of the will. The relevant limitation period(s) would be those applicable to claims for breach of trust.
From Stuart's point of view, the most favourable limitation period would be that prescribed by s 47, which applies to fraud and misappropriation of trust property. Under that section the limitation period does not expire until a period of twelve years from the date on which the plaintiff first discovers, or may with reasonable diligence discover, the facts giving rise to the cause of action and that the cause of action has accrued (see s 47(1)(e)).
As will be seen, Stuart's inheritance appears to have been transferred to him, and the estate (as I will continue to call it, for convenience) wound up, by the end of the 1971-1972 financial year. Stuart actually had the ledger book in his hands, from time to time at least, from 1976 onwards. The last entries in the book which were the subject of accusations by Stuart in these proceedings dated from 1976-1977. There seems no reason why Stuart could not, with reasonable diligence, have identified the alleged breaches of trust by then. Claims against the deceased based on Stuart's allegations in these proceedings would therefore have become statute barred decades before the proceedings were instituted in 2018.
I was troubled by the thought that Stuart could, in effect, bring misappropriation claims against the deceased's estate which are now statute barred through the back door, by putting them forward as part of a claim for family provision. But I did not think that I could rule Stuart's allegations out of contention. I thought that to do so might involve an impermissible restriction on the breadth of the circumstances to be considered under the Act. In the end I do not need to decide whether that is so. But I certainly can take the lapse of time into account in considering the weight of the allegations.
It is convenient to deal first with the insurance payments for the Niagara Café recorded from 1962-1963 to 1966-1967. The 1966-1967 entry has the following annotation: Take up in Mrs MacAlpine's Tax Return, against rents. Niagara is her property. Estate owes Mrs MacAlpine for this year: Rents $738.12 Less insurance $53.71 $684.41
In the 1967-1968 year there is a side note which records that the estate owed the deceased $369.06 for rent on the Café banked in the estate bank account between July and December 1967. In 1964-1965 year there is also an income item for "Niagara" of $360, presumably representing rent.
There is no reference to rental income for the Café in 1962-1963 or 1963-1964. But the annotations (which Stuart did not refer to in his affidavit) do make two things perfectly clear. One is that the estate bank account was being used, at least intermittently, for income and expenditure associated with the Café, which had formed part of the deceased's mother's estate but had been inherited by the deceased rather than Stuart. The second is that the family accountant was well aware of this, and of the need to record that income and expenditure in the deceased's, and not the estate's, tax return.
In these circumstances there is no justification for Stuart's assumption that the dividends in the book came from shares purchased with profits from his inheritance (as I will explain, there is no evidence that there was any overall profit in any event). It is far more likely that, like the rent from the Café, the dividends were paid on shares which had been inherited by the deceased as part of her mother's estate, but went through the estate bank account. If the shares had been registered in the deceased's name as executrix and were only registered in her name beneficially at around the time Bogan Downs was transferred to Stuart, that would readily explain why the dividends recorded in the book cease in 1970-1971.
Against this background, I turn to Stuart's allegations about the 500 sheep he inherited under his grandmother's will. The relevant provisions of the will were: I GIVE DEVISE AND BEQUEATH unto my grandson, STUART MacALPINE … free of contribution for death duties and administrative expenses, my grazing property known as "Bogan Downs" Coolabah … together with five hundred head of sheep to be selected by my Trustee [the deceased] AND I DIRECT that such assets shall be transferred to him as soon as he shall be permitted to hold the said lease. In the event of my said grandchild predeceasing me or dying before attaining the age of sixteen years then such lands and stock shall pass and be transferred to the next oldest child of my said daughter as soon as permission to hold such Lease can be obtained. I DIRECT that until my said grandchild shall be enabled to hold the said lands as aforesaid my Trustee shall carry on grazing operations thereon and for that purpose I give to my Trustee all necessary powers and authorities AND I FURTHER DIRECT that all profits accruing, from the said grazing operation shall accrue for the benefit of my said grandchild.
The will provided that the 500 sheep were to be transferred to Stuart only when he became entitled to hold Bogan Downs. Despite the reference in the will to Stuart surviving until the age of sixteen, the Crown Lands records tendered in these proceedings show that Stuart was only capable of holding the lease of Bogan Downs once he attained his majority, which, in the events which happened, was on 1 July 1971. Stuart's complaint about his mother "retaining control" for two years after he turned sixteen appears to be misconceived.
There is no reference in the ledger book to the estate after 1971-1972. Bogan Downs was transferred to Stuart during that financial year. The "E" and "S" annotations suggest it was also a year of transition so far as the income and expenditure recorded therein were concerned. I think it is clear that the estate must have been wound up, and the livestock to which Stuart was entitled transferred to him, during that year. The wool and livestock income in subsequent years would have been income received by Stuart on his own account.
I think that Stuart is clearly wrong in saying that the book records no wool or stock income in 1962-1963. The 1963-1964 income contains receipts from "AMLF Company", presumably a stock and station agent, under headings for the sale of both wool and stock. No such headings appear in the 1963 year, but two payments from AMLF appear under the income. One is annotated with the sale of ewes and the other is the same order of magnitude as the amount received for wool in the following year.
Nor do I think that there is anything in the fact that the book commences only in 1962. The obvious inference is that receipts and income from Bogan Downs were recorded in an earlier book, which is not in evidence and may no longer exist.
On Stuart's evidence, the stock belonging to the estate, the deceased and Laurence were run together across all three properties (Tubba Villa, Double Tanks and Bogan Downs). Stuart did not suggest that the income and expenditure attributable to the stock his parents owned, or to operations on Tubba Villa and Double Tanks, were recorded in the Bogan Downs ledger book. Presumably it would have been recorded in some other book or books, and taken up by the family accountant in the deceased's and Laurence's tax returns.
In these circumstances, it is hard to see how Stuart can say that the contractor clearing expenditure recorded in the book related to clearing on Tubba Villa. Stuart accepts that clearing was done on both properties. The overwhelming inference is that expenditure in the ledger book related to Bogan Downs, and the expenditure on Tubba Villa was recorded somewhere else.
Returning to the livestock Stuart inherited, if Stuart's grandmother was running more than 500 sheep on Bogan Downs when she died (which seems likely, given that its carrying capacity was about three times that) any additional stock would have passed to the deceased with the residue of the estate. The will is unclear about how the provision about the operations being carried on for Stuart's benefit would work in such circumstances.
Nor does the will say (at least, in express terms) whether Stuart's 500 sheep were to be selected at the time of the grandmother's death, or only later when Bogan Downs was transferred to him. There was no argument before me on these questions.
As already noted, the book appears to include, in the period up to 1971-1972, entries for income and expenditure deriving from assets inherited by the deceased as part of the residue of her mother's estate. The wool and livestock income in the book for the same period might possibly also have been derived, in part, from livestock inherited by the deceased. At this point it is impossible to say.
Another uncertainty arises from the fact that, on Stuart's evidence, the stock belonging to the estate, the deceased and Laurence were run together across all three properties (Tubba Villa, Double Tanks and Bogan Downs). It is not clear how, if at all, this was taken into account as between the estate and Stuart's parents. The entries in the book do not mention it, but some adjustments may have been made when preparing the parties' tax returns. Again this is something which is now a matter of pure speculation.
In any event, even if all of the wool and livestock income in the book, without deduction or adjustment, was Stuart's, it is far from clear what overall profit, if any, he would have been entitled to. In his affidavit, Stuart set out a summary of the income and expenditure recorded in the book. For the period from 1962-1963 to 1971-1972, there were profits and losses but the overall figure was a loss.
There is another point about the income from Bogan Downs up to 1971-1972. The will provided for that income to be accrued for Stuart's benefit. But it probably would have been legitimate for the deceased to apply that income towards meeting the costs of Stuart's maintenance and education (see Bective v Federal Commissioner of Taxation (1932) 47 CLR 417 at 419-421). Even if the figures had shown a profit, there might not have been anything left over after deduction of such costs.
There is simply no evidence that Stuart received less than his proper livestock entitlement, whatever it was, when the estate was wound up in 1971-1972. The book contains an income entry from the sale of cattle in 1968-1969. Another appears in 1971-1972, where it is annotated with an E. The book contains further such income from 1974-1975 onwards, after Bogan Downs and Stuart's livestock entitlement had been made over to him. The obvious inference is that cattle were acquired on behalf of the estate and then made over to Stuart when Bogan Downs was transferred.
Indeed, when Stuart's complaint, which I have quoted at [105] above, is carefully analysed, he did not say that he did not receive any stock. Rather he appeared to acknowledge that he had received the benefit of his stock entitlement, by way of a contribution to his share of the livestock partnership. If Stuart is correct in saying that Grant received his stock for nothing, then the obvious inference is that this stock would have come from the deceased and Laurence so as to equalise their sons' holdings. This did not mean that Stuart was being deprived of his entitlement.
Stuart's real complaint about the stock seems to be with what he ultimately received by way of distribution from the livestock partnership in 1990. But the division was carried out at arms' length, and Stuart had his own solicitor, Mr Chalker, representing him. There is no reason to think that he did not receive his share.
I turn now to Stuart's complaints from 1972-1973 onwards. During this period, following the winding up of the estate, the function of the book must have changed. The obvious inference is that it was used thereafter to assist in the preparation of Stuart's individual tax return. This would explain why items of individual personal expenditure, and, after Stuart's marriage, Patricia's income, were recorded in the book.
This means that Stuart's complaint about the wages "paid to self" in 1972-1973 is misconceived. The entry cannot represent a payment from the estate which was somehow diverted or withheld, as the estate had been wound up by then. It is probably just a reference to Stuart's drawings from his income for that year.
I have already referred to the inclusion in the book, from 1977-1978 onwards, of what appears to have been Stuart's share of income and expenditure associated with Salisbury. But there is no indication of figures for the livestock partnership, which is said to have begun in 1972 or thereabouts. The uncertainties so far as accounting for family operations conducted across multiple properties are concerned (see [126] above) thus continued after 1971-1972.
The points which I have so far made do not directly answer all of the complaints made by Stuart in his affidavit. They do not, for instance, explain the entries concerning the purchase of horses (by way of set-off) from Laurence in May 1975. But there might be any number of possible explanations for individual items of expenditure. I have no confidence that what Stuart now says about entries in the book is a reliable basis for making findings about the underlying transactions. Given the evidentiary vacuum, I think that further speculation is a pointless exercise.
It hardly needs to be said that, having regard to the seriousness of Stuart's allegations, they require clear and convincing proof on the probabilities (Briginshaw v Briginshaw (1938) 60 CLR 336). The fact that the book was prepared for the purpose of being reviewed by the family accountant only makes it more inherently unlikely that the transactions recorded in it involved misappropriation of Stuart's inheritance.
There is no independent evidence whatever of any impropriety. In my view, to the contrary, the notations in the book bespeak an understanding of the importance in distinguishing between the income and expenditure of the estate and the deceased's personal income and expenditure.
Stuart, and those advising him, have apparently failed to understand what the function of the book was, and have overlooked entries in the book, such as those concerning the Niagara Café, which did not fit with their preconceived ideas. The book does not record final or complete figures for income and expenditure. It was a working record, used by the accountant as one of the sources of information needed to calculate the final income and expenditure figures for the different family entities and to incorporate those figures in the relevant tax returns. Even if Stuart's allegations had been more plausible, without evidence of what those final figures actually were, the book would still prove nothing.
In my view the evidence falls far short of raising any reasonable suspicion, let alone sustaining Stuart's allegations. And even if some of the transactions remain unexplained, Stuart has made no attempt to quantify the supposed contribution they made to his mother's estate. What he says about this is no more than bare, and strictly speaking inadmissible, assertion.
No doubt Stuart's claim has placed him under great strain. He may genuinely have convinced himself that he has been the victim of some sort of fraud. But the fact that he has been prepared to make such serious allegations against his mother based on such flimsy material says nothing for his reliability as a witness.

Settlement of claim against Laurence's estate

Stuart's second allegation concerning the assets in his mother's estate is that when in 1995 he settled the claim he had brought against his father's estate he took less than his legal entitlement. Having initially provided $65,000 for the purchase of Booka, he ultimately settled for $55,000 inclusive of costs. He said that his mother and brother told him that this was all they could pay because they were in the middle of a drought at the time, and he did not wish to press them further.
As with the statute barred allegations of misappropriation against his mother, I was troubled that in effect Stuart was seeking to go behind the terms of the settlement which he agreed to, but I was not prepared to rule his allegations out of contention during the trial. I discuss this topic in more detail below (see [335]).
There was little evidence before me about the nature and value of Stuart's claims in the 1994 proceedings. It appears that his pleaded claim was to the effect that Booka was a partnership asset. Presumably this involved characterising the $65,000 Stuart paid his father to assist in the acquisition of Booka as a contribution of partnership capital. Had such a claim succeeded, it would presumably have given rise to an entitlement to a share of the capital value of Booka at the time the claim was heard, together with a share of profits attributable to the ownership of Booka in the meantime. But there was no evidence before me which would quantify those claims.
One obvious difficulty with Stuart's claim was that, on the figures in evidence, $65,000 was less than a quarter of the acquisition cost of Booka. It seems that another defence advanced to the claim was to rely on a set-off for the $40,000 Laurence provided to Stuart for the acquisition of Mount Pleasant in about 1986 (see [32] above). This was however inconsistent with the way in which that payment (and the equivalent payment of $40,000 from the deceased to Grant himself) was treated in Grant's evidence in these proceedings.
Had such defences been established, there would still have been a balance owing to Stuart of $25,000 (the difference between the $65,000 he provided for Booka and the $40,000 provided to him for Mount Pleasant). There would have been a further allowance in Stuart's favour for interest, given that Stuart provided the money for Booka four years before the money was provided to him by his father for Mount Pleasant. There would also have been an allowance for costs.
In these circumstances the settlement figure of $55,000 seems explicable having regard to the range of possible outcomes in the proceedings. It is not a figure which is so low that of itself it supports Stuart's allegation that he left money on the table.
Certainly if the settlement involved effectively treating the payment to Mount Pleasant as a set-off then there seems no reason why the payment to Grant should not have been treated in the same way. There is no evidence, however, that Grant was ever asked to repay the $40,000 he received from the deceased for Mount Pleasant. It is easy to see how this might have fuelled Stuart's resentment of what he believed was his mother's favouritism towards Grant, but by the time of the settlement the rift had already arisen. Although Stuart asserted that the $55,000 settlement payment came from his mother, there was no documentary evidence of this.
In the end, Stuart has not demonstrated that the settlement involved any substantial transfer of wealth from himself to his mother. She was not a defendant to the proceedings in her own right. No claim, therefore, was being made for any benefit she might have derived from the acquisition of her share of Booka. As the inheritor of Laurence's estate, she might have benefited from the failure to recoup some sort of profit which he had made out of Booka, but, as I have already pointed out, no attempt was made to quantify any such claim. If the deceased failed to recoup the $40,000 she had provided to Grant for Mount Pleasant, then to that extent her net assets were diminished. But it could hardly be said that this would have been a significant contributor to the value of the deceased's assets at the time of her death.

The deceased's family relationships and testamentary intentions

In evidence is a handwritten letter produced by Grant which Grant said his father had written to explain why he had left Stuart out of his will (which, as already noted, was made in April 1990). The letter is signed and the signature witnessed by "W A Gaffey", who I assume was Bill Gaffey of the Coolabah shop (see [48] above). It is undated and Stuart said that he had not seen it before but there was no challenge to its authenticity. I set it out verbatim: I would like to state my reasons for excluding my son Stuart from being included in my will. In 1969 I started a company registered as Tubba Villa Pty Ltd. It started off with shares I had accumulated over the years, as time went by my wife and I purchased the property known as Salisbury in the name of the Co our idea was when we passed on everything was equally shared by the 2 boys. It seemed a good idea at the time however Stuart was not prepared to wait till due possession but wanted his share now, Stuart wanted Salisbury split so I went to the trouble and expense of having it valued (the 2 halves) he then changed his my [mind] and would not agree to taking his half and the winding up of the Co. He was offered a number of alternatives but would not agree to anything. My wife and I put in over 90% of the money to purchase Salisbury in the first place. Stuart has made [a] point of treating his mother very badly something I cannot overlook.
Grant also produced a similar handwritten letter from the deceased. The letter is signed and has been witnessed by Joan Gaffey. It is dated 1 December 1993. Again I set it out verbatim: The reasons I have not left any more legacies to my son Stuart are because I have already given him a very considerable amount of assistance to make him to be extremely well established. Stuart was given the property Bogan Downs and I was able to put in most of the finance for the purchase of Salisbury property which when sold and split between my two sons, Stuart got in access [excess] of $400,000.00. I consider that Stuart and his wife Patricia have treated me extremely badly for the last seven years Stuart hardly speaking to me and Patricia having announced that she would never speak to Stuart's parents again, for what reason I don't know. I am rarely given the opportunity to have my grandchildren, whom I adore, and I have ever since my husband died been given threats of being taken to Court. Written by a very broken hearted mother because I really devoted my life to my family and now feel I have been very poorly treated by Stuart. Grant was asked by his father only a few days before he died to look after your mother remember she won't have anybody, and he has done that in every possible way.
In his affidavit, Grant stated that he was told by his mother that in 1989 or 1990 she arranged for Bill Gaffey to take a bag of presents out to Bogan Downs for Stuart and his family. She said that the bag was returned with the presents unopened.
Grant stated that after Laurence died he and Cathy provided the support which the deceased needed, with the later assistance of her carer, Mr Davroen. In particular, Grant would come up to Double Tanks to help the deceased with anything she needed done around the property. Cathy would also visit. At Christmas and at Easter, the deceased would visit Grant and Cathy and their family at Salisbury.
Grant stated that after the deceased went into care at Nyngan, she was initially able to go out on excursions. He said that he and members of his family drove to Nyngan to take her out from time to time. They would also collect her from Nyngan for Christmas and Easter celebrations at Salisbury, returning her to Nyngan afterwards, for as long as she was able to make the trip.
Grant also stated that in about 1994 or 1995 he was told by his mother that Stuart had visited her at Double Tanks "demanding that I leave money to his children". Grant said that the deceased appeared greatly upset by the conversation. He said she was also upset by the litigation which Stuart brought in 1994.
Grant's evidence, based on discussions with his mother, that after his father's death Stuart did visit her at Double Tanks from time to time but the visits were rare. Grant stated that he found no cards or letters from Stuart among his mother's papers.
Stuart did not dispute that a rift arose between himself and the rest of his family, including his mother, in the late 1980s. There were two factual issues at the trial. The first was what the cause of the rift was, and in particular whether Stuart was to blame for it. The second was whether the rift between Stuart and the deceased was repaired in later years.
According to Stuart, the rift was precipitated by religious differences. Laurence was Presbyterian and the deceased was Anglican. Patricia is a Roman Catholic. She and Stuart married in a Catholic ceremony and their daughters were christened as Catholic.
Stuart said that when Andrew was born Laurence wanted him, as the first-born grandson, to be christened as a Protestant. According to Stuart, his father gave him an ultimatum that if Andrew was not christened as a Protestant, he (Laurence) would make sure that Stuart got nothing out of the family. Patricia and Stuart did not agree and proceeded to have Andrew christened as a Catholic.
Stuart said that this "set the tone" for the family rift. Stuart recounted receiving night time calls starting from about 1988 in which Laurence made hurtful and belittling allegations against Stuart. According to Stuart, at one point Laurence said that the telephone calls were being taped and there was a commotion in the background. The inference was that this was Grant and he had been behind the taping of the telephone calls.
According to Stuart, Patricia told Laurence not to call and that if money was needed for the operation of the business, it should be requested by mail. He said that this was the procedure adopted thereafter.
Stuart said that he found the governance of the family business unsatisfactory. He said that after the rift arose, his father, who at the time was not a director of TVPL, was reappointed as one. The result, according to Stuart, was that he was constantly outvoted on the board of TVPL by three votes to one. He said he proposed an arrangement to split the family properties under which he would keep Bogan Downs and take Booka, leaving the other two properties to the rest of his family, but this was rejected.
In his affidavit, Stuart acknowledged that the deceased did not spend Christmas or Easter with his family. He said that on Christmas Day she would return to Double Tanks after lunch at Salisbury and he and Patricia would arrange that the children would call her at this time to thank her for their presents. After Christmas she would visit Bogan Downs and see them there. Stuart did not deal expressly with the suggestion in Grant's affidavit that in one year the presents had been returned.
According to Stuart, he himself would call or visit the deceased sometimes on special occasions such as her birthday and Mother's Day. He said: It was not all the time but I did go.
Elsewhere he said that he visited the deceased at Double Tanks "regularly". But in another part of his affidavit he said that Grant installed security cameras there which made him uncomfortable. The implication was that this put him off visiting.
The deceased helped out at the local public school at Coolabah and when Stuart's children were young (before they went to boarding school) she would see them there. They would also meet up at the Coolabah pub and at the Coolabah shop. From time to time services would be held at the West Bogan Anglican church which was not far from Coolabah, and according to Stuart he attended those services and would meet up with the deceased on those occasions. Stuart said that she also visited Bogan Downs and met Amanda's children (the deceased's great-grandchildren) there.
According to Stuart, after the deceased went in to care at Nyngan, he visited her there "regularly". He said that this was easier as he did not feel he was being watched all the time.
In his affidavit Stuart conceded that his relationship with the deceased "fractured" when he and Grant fell out, but said it was "not completely broken". He said that as the deceased got older she "became a lot more understanding and softened". He said that at the end he believed he had reconciled with her and they had become close again.
According to Stuart, as she reached her nineties, the deceased said to him on a couple of occasions "I've made a dreadful mess", "I'm going to have to face my maker" and "I wish I had changed my will". He said he did not press her about this because he did not wish to cause stress to her. He also recounted that not long before she died his mother said "I want to give you a restart. I would like to give you a horse, a bullock and a cart."
Stuart referred to the letter explaining why he had been left out of his father's will. He said that it was not correct that the deceased had provided ninety per cent of the purchase price of Salisbury, because the purchase monies had actually come from monies misappropriated from his inheritance. I have already explained why I do not accept that this is correct.
Stuart went on to deny that he wanted his share of his inheritance immediately, as the letter suggested. He said he did not instigate the sale of Tubba Villa or Salisbury. He said it was "not true" that he had treated the deceased badly and this allegation was hurtful to him. He did not go into any further detail.
In his affidavit, Stuart acknowledged the December 1993 letter written by his mother. He did not take issue in any specific way with what she said in the letter. His response was: By 2018 [when the deceased died] 25 years had passed and we had reconciled our relationship.
Patricia's evidence covered some of the same ground. She stated that she was told by Stuart of Laurence's ultimatum that Andrew must be christened as a Protestant. This happened on the very day that Andrew was born.
Patricia stated that Laurence was anti-Catholic. As an instance of this she referred to frequent statements by him that the government should not contribute to the costs of funding Catholic schools.
Patricia stated that the deceased, like Laurence, was prejudiced against Catholics, but "to a lesser extent". The only specific instance she recounted in her affidavit concerned the deceased's uncle, Charles (the brother of the deceased's mother). According to Patricia, Charles had married a Catholic and moved away to Gilgandra in Central Western New South Wales. Patricia asked the deceased what had happened to him and the deceased replied that no-one in her family had ever spoken to him again.
Patricia stated that she learned that the deceased also said hurtful things about Andrew's inability to walk, attributing it to Andrew being fat and lazy. Patricia stated however that she "educated" the deceased about this and that the deceased came to understand that it was as a result of Andrew's condition.
Patricia stated that she learned from Stuart that Laurence and the deceased were "taking sides" in the conduct of the business. According to Patricia, this was only one instance of Laurence and the deceased showing favouritism towards Grant. Patricia stated that after 1982 the deceased was paying for timber treatment on Tubba Villa despite having gifted it to Grant in 1977. Patricia also contrasted the steel sheep yards and large wool shed on Tubba Villa with what she described as "modest timber cattle yards" built on Bogan Downs, adding for good measure that she and Stuart had later discovered that the monies to erect the cattle yards had been taken from Stuart's grandmother's estate.
Patricia's suggestion that Grant had always been favoured by his parents over Stuart was not supported by the other evidence. Laurence's letter stated that the plan had been to build up TVPL with a view to Stuart and Grant eventually sharing the proceeds equally. Stuart's own affidavit confirmed that this had been his parents' plan. He did not complain of favouritism towards Grant before their falling-out. The "discovery" about expenditure on the improvements on Bogan Downs coming from the estate was clearly a reference to the analysis of the ledger book put forward in these proceedings. I have already explained why I consider that analysis to be unsound. It is notable that Patricia attributed the discovery to herself and Stuart, rather than Stuart alone.
According to Patricia, once Grant and Cathy became engaged, the deceased lost interest in Stuart's children. Patricia described an occasion when the deceased went so far as to return clothes for Stuart's daughters which had been kept at Double Tanks for the purposes of their visits, saying that the clothes would not be needed any more.
Despite this, Patricia stated that her daughters continued to visit the deceased at Double Tanks. After Laurence died, she would ring up the deceased, take her daughters over to Double Tanks, and pick them up later. Patricia denied that presents from the deceased had ever been returned.
Andrew apparently saw his grandmother less. Patricia attributed this to Double Tanks not being wheelchair-accessible. But she recounted an incident when Andrew was eleven and had asked to visit his grandmother at Double Tanks. According to Patricia, she made the arrangements, taking Amanda and Andrew over, only to find that Grant and Cathy then dropped three of their children off at Double Tanks as well. When she found out about this, Patricia went to Double Tanks and retrieved Andrew, offering the explanation that one of Grant's children had a viral infection to which Andrew was susceptible, and also that the deceased would be unable to manage five children at once.
In cross-examination both Stuart and Patricia were asked about the circumstances in which Andrew was baptised as a Catholic. It is not necessary to go into this in detail, but the evidence did make it clear that it was much more important to Patricia that Andrew should be brought up as a Catholic than it was to Stuart. Stuart has never converted to Catholicism and remains an Anglican.
In cross-examination, Stuart was asked about the housewarming which he and Patricia had when they completed the building of the new homestead on Bogan Downs in 1989. Counsel asked whether Stuart's parents were invited. Initially Stuart professed not to recall. Eventually he conceded that they had not been asked, but tried to suggest that this had something to do with Andrew's then recently discovered medical condition. He said that he and Patricia were in the middle of a row with his parents and the last thing they needed with the sadness of Andrew's condition was to have someone at the housewarming they were fighting with.
I thought Stuart's evidence on this point was evasive. I have no doubt that Laurence and the deceased were deliberately not asked. The reason was because Stuart and Patricia wished to cut them out, and I do not believe that Andrew's diagnosis made any difference.
Stuart was cross-examined about his visits to his mother when she went into care in Nyngan. He conceded that he never took her out of care, although that would have been possible during her earlier years in the facility. He said he visited fairly regularly when he was in Nyngan. But he then conceded that he visited Nyngan fairly infrequently, sometimes only once a month. When pressed about this he said that he made trips to Nyngan for the specific purpose of seeing his mother, but when asked how many, he said he could not remember.
As already mentioned, evidence was led on Stuart's behalf from six other witnesses which touched on the family rift. These were: Stuart and Patricia's daughters, Amanda and Marissa; Mr Davroen, the deceased's carer (see [55] above); Mrs Gaffey, of the Coolabah shop (see [48] above); Benjamin Daniel Rieth, the Coolabah publican; and Reverend Graham McLeod, the Anglican Parish Priest at Nyngan.
All of these witnesses provided affidavits. Only two of them, Marissa MacAlpine and Mr Davroen, were cross-examined.
As already noted, Amanda was born in December 1983. On the evidence, she appears to have had a particular connection with her grandmother.
Amanda attended Coolabah Public School from 1989 to 1995. She then went to boarding school in Sydney from 1996 to 2001. After a gap year in 2002, at Bogan Downs, she studied at the University of New England in Tamworth from 2003, graduating in 2005. After a further year at Bogan Downs, she moved to Mudgee in 2007.
As already noted, Amanda is now married with children of her own. She and her husband married in 2010. They live in Mudgee but since the acquisition of a property at Coolabah in 2017 (see [279] below) they visit when time permits.
Amanda described spending time with her grandmother at the Coolabah school and afterwards at the Coolabah shop when she was growing up. She stated that she and Marissa were also looked after by the deceased when their parents needed to take Andrew to Sydney for medical appointments.
Amanda described her horse being taken to Double Tanks while she was at boarding school to try to get the horse in foal. She stated that both her father and her grandmother told her that her father visited from time to time when this happened. She and her grandmother also exchanged occasional letters while she was away in Sydney. Copies of some of these letters were attached to her affidavit. They refer in the ordinary way to news about Amanda's family.
Amanda stated that she never returned any Christmas presents to her grandparents unopened and never observed her parents doing so. She stated that she recalled receiving Christmas presents every single year even into adulthood.
Amanda described an incident at Mudgee in December 2017. The deceased had travelled there for the wedding of Grant's son. She came to Amanda's house to visit. The deceased had a pair of sunglasses which were broken and held together with sticky tape. According to Amanda, she suggested that the deceased get a new pair, but the deceased replied that Grant did not want her to buy new sunglasses because "I'm too expensive".
As already noted, Marissa was born in August 1985. She attended Coolabah Public School from 1990 to 1997 and boarding school in Sydney from 1998 to 2003. After a gap year in the Northern Territory in 2004 she studied at the University of New England from 2005 onwards. She graduated in 2010 and worked as a teacher in Queensland but after 2013 returned and worked at the Brewarrina Correctional Centre.
Marissa described, when she was in primary school, staying with the deceased on weekends. She also encountered the deceased at school, at the West Bogan Anglican Church and at the pub. Once she started to go away to boarding school, the deceased would meet her in Coolabah to see her off or she would be taken out to Double Tanks to say goodbye. Once she was at university, she would meet the deceased at the pub when she was home for the holidays.
Marissa stated that after the deceased moved to Nyngan, she would visit. She said the deceased told her that she wanted to leave the facility but Grant would not let her. She then observed that Grant sold Double Tanks and this left the deceased with "nowhere to go". She went on to state that following the sale of Double Tanks the deceased's health deteriorated. The implication was that Grant's selfishness had contributed to the deceased's decline.
This evidence struck a false note. The deceased owned a house in Nyngan and presumably could have moved there had that been feasible. But in fact the evidence leaves no doubt that when the deceased moved to Nyngan she was unable to live independently. This was even more clearly the case by the time Double Tanks was sold a couple of years later. And there is no reason whatsoever for thinking that the course of the deceased's decline would have been any different if Double Tanks had not been sold.
Marissa was challenged about this in cross-examination. She prevaricated but would not withdraw. She denied that she was trying to discredit Grant, but I did not believe her. That was exactly what she was trying to do.
As already mentioned, Mr Davroen acted as the deceased's carer from about 2005, moving into the main homestead with her in about 2009. He said that after she went into the aged care facility at Nyngan, he visited her for a while until he moved away from the Coolabah district.
In his affidavit, Mr Davroen stated that, despite differences in their temperaments, he was close to the deceased. In particular, he stated that he discussed her testamentary plans with her.
Mr Davroen stated that on one occasion the deceased volunteered to him, out of the blue, that "whatever happens to me in the future I deserve everything I get" and "I've never been a very nice person to start with". The conversation continued: Davroen: You screwed up but I'm only a stranger and I've heard, you know, your side and I've kinda worked out the other side. You're better off squaring the accounts before you go and that'd be it. Deceased: I want to but I don't know how to fix it now.
According to Mr Davroen, he advised the deceased on occasions to "make amends" and the deceased agreed, but took no action. The suggestion was that she had run out of time to do so.
Mr Davroen referred in his affidavit to the visit to Mudgee in December 2017 for the wedding of Grant's son. A member of the staff at the Nyngan Nursing Home went to the wedding to be the deceased's helper. Mr Davroen stated that Grant booked the deceased and her helper into a "low budget motel" while he and his family stayed in "a posh place". But in cross-examination Mr Davroen agreed that the motel had been chosen because of its accessibility benefits for the deceased.
Mr Davroen also mentioned that during the visit he noticed that the deceased had a broken pair of glasses. Afterwards she bought herself a new pair. In cross-examination he said they were not sunglasses but normal reading glasses. When asked about why he mentioned the glasses in his affidavit at all he said that "someone asked about it".
In his affidavit, Mr Davroen stated for the first year or so after he moved there in about 2005 to look after the deceased, Grant would visit Double Tanks to pick the deceased up and take her back to Salisbury for Easter. At Christmas Mr Davroen would have to take the deceased from Double Tanks to Salisbury and back again.
Mr Davroen also described visits by Stuart, and visits from his daughters, to the deceased at Double Tanks. Stuart and Patricia would also bring Andrew there. He stated that, by contrast, he "hardly ever" saw Grant at Double Tanks, and Grant's wife Cathy attended on "special occasions" only.
But in cross-examination counsel for Grant put to Mr Davroen, and he accepted, a long list of tasks which Grant came to Double Tanks to do for the deceased. When asked about mentioning this in his affidavit, Mr Davroen said: I said - I said, you know, when Anita wanted something done, Grant would come up and do it. I didn't give all the specifics but if anything needed done, he didn't hesitate coming up. He either drove up or flew up in his plane.
The cross-examination left me unimpressed with Mr Davroen's evidence. Contrary to what Mr Davroen said in the passage I have quoted, he had not mentioned Grant performing tasks for the deceased in his affidavit at all. It was clear that he was a partisan of Stuart's. His evidence was not a fair and balanced account: it was slanted against Grant, and where it supports Stuart's case and is not otherwise corroborated I think it would be unsafe to rely on it.
Mrs Gaffey is 81 years old. In her affidavit she stated that she moved to Coolabah, and met the deceased, in the late 1960s. Initially she ran the telephone exchange. She remains the owner and operator of the Coolabah shop (I assume that her husband, Bill Gaffey, has died).
Mrs Gaffey said that she was a good friend of the deceased for almost 50 years and the deceased often popped in to visit her in the Coolabah shop. She has also known Stuart since he was a little boy. Her son had a disability and she had a bit to do with Stuart about this, especially in getting the Coolabah school made wheelchair-accessible. She praised his character and personal qualities.
Mrs Gaffey described the deceased bringing Stuart's children into the shop on the weekends or dropping them off to catch the bus when they were going back to boarding school in Sydney. She stated that when the deceased was with her at the shop sometimes Stuart would drop in and at other times Patricia and the children would drop by.
Mrs Gaffey also stated that she attended social events where the deceased and Stuart were both present. This included barbeques at Double Tanks when Stuart would have been in his thirties and forties. She remembered the deceased sending presents to Bogan Downs through the mail run done by her husband Bill and stated that she did not ever recall any presents being returned.
Mrs Gaffey stated that according to her observation there was a good mother and son relationship between the deceased and Stuart. She never saw or heard either of them say anything negative about the other. She stated that the deceased would often say that Stuart was a hard worker and was reliable.
Mr Rieth was the publican at the Coolabah Hotel from December 1999 to March 2006. In his affidavit he stated that during this period the deceased would visit the pub and would meet other members of her family there. This included Stuart, Patricia and the deceased's grandchildren. Mr Rieth described these as normal family get-togethers.
In his affidavit, Reverend McLeod stated that he had known Stuart for twelve years (that is, since about 2007). He is based in Nyngan but a few times a year would conduct services at the West Bogan Church. The deceased and Stuart would both attend these services. Afterwards everyone would mill around and talk, and this would include the deceased, Stuart and Patricia.
Reverend McLeod also stated that every fortnight or so he visited the aged care home at Nyngan where the deceased was living. He "regularly" ran into Stuart and Grant. He described Stuart's character and conduct over the time during which he had known him in approving terms.
In his affidavit, Grant said that he knew nothing of the alleged ultimatum about Andrew's christening and the alleged abusive phone calls by his father to Stuart and Patricia. He said his father was a man of integrity who was an upstanding member of the community. He said he could not recall him ever raising his voice.
In cross-examination Grant accepted that his father had "strong views" about being a Protestant. But he maintained that he knew nothing about any dispute about Andrew being christened as a Catholic. He was not challenged on his denial of any knowledge about the alleged abusive telephone conversations by his father.
In cross-examination, Grant accepted that the relationship between Stuart and Patricia and his parents had been good up until 1987. But he rejected the suggestion that the rift coincided with Andrew's birth in April 1987. He put the breakdown as arising later, in about 1988. He was asked whether it was associated with any particular event and said that the catalyst for the breakdown had been a change in the articles of TVPL. It seems that previously the articles had provided that his mother would be managing director for life. They were changed to allow her to pass on the office of managing director after her death to a person nominated by her. Grant said this change was made prior to the September 1988 correspondence with Flashmans (see [39] above), probably in 1986 or 1987.
Grant was also asked in cross-examination about the relationship between the deceased and Stuart's family. He said that the deceased loved her grandchildren and they were fond of her. He said that there was a period of very little contact from about 1988 or 1989 for a few years. Later, after 2009, contact was more extensive.
Grant also said that there was very little contact between Stuart and the deceased over the period for a few years after 1988 to 1989. He said that then the relationship "mellowed for a little while". When asked when this happened, he said it was after the sale of Salisbury (which happened in 1992) but his evidence on this was unclear because another answer suggested that it may have been after the 1995 settlement of the proceedings brought by Stuart. Grant denied that the relationship "continued" to improve after 2009 and described it as one of "acknowledgement".
Grant was cross-examined on the reference in the deceased's 1993 letter to Patricia refusing to speak to her. He said he was aware of this. At some point thereafter they began speaking to each other "out in public". This was apparently a reference to encounters at the West Bogan Church services, the Coolabah shop and Coolabah pub. He said this was long before 2009.
In cross-examination it was put to Grant that he had no first-hand knowledge of the relationship between the deceased on the one hand and Stuart and his family on the other. Grant acknowledged this but made it clear that his evidence was also based on discussions with the deceased. He said she spoke warmly of the grandchildren but not of Stuart. He said she never talked about changing her will.
Grant said that the deceased told him on occasions that Stuart visited her at Double Tanks. But when asked whether the same applied to Patricia, Stuart replied: I would say not at Double Tanks, I will say elsewhere.
Grant was asked about the evidence of the witnesses concerning contact at the West Bogan Church, the Coolabah pub and the Coolabah shop. Grant said he had visited the Coolabah pub with his mother after 2009 and on occasions Stuart's children were there also. He said he did not recall Stuart or Patricia being present.
It was clear from Grant's evidence that there was some contact between the deceased and Stuart (and, to a lesser extent, Patricia) at public venues, such as the Coolabah pub and the West Bogan church. But in re-examination, Grant agreed with counsel's suggestion that the deceased was a "private person" who would have kept family disputes within the family.
Conclusions on cause of rift: There is no doubt on the evidence that Laurence and Patricia were on the opposite sides of a sectarian divide. It is likely that Laurence did want Andrew baptised as a Protestant and was displeased by Patricia's refusal. But I do not accept that this was the cause of the rift. There is ample evidence of disputes between Stuart and the other members of his family about the operation of the family partnership, the governance of TVPL and the division of Salisbury. These were all disputes which were financial in origin and had nothing to do with the religious disagreement.
As already stated, Stuart in his affidavit said that the alleged ultimatum about Andrew's baptism "set the tone" for the rift. But elsewhere in the affidavit Stuart himself referred to his relationship with the deceased "fracturing" when he fell out with Grant, and he traced the falling-out back to the time Grant married Cathy. This was in 1986, before Andrew was even born.
Furthermore, whatever personal differences there may have been between Patricia and Laurence about religion, I do not accept this was a significant factor in the relationship between the deceased and Stuart. Patricia's anecdote about the deceased's uncle Charles says something about the social conditions in which the deceased was brought up. It says little, if anything, about the deceased herself being motivated by sectarianism in her relationship with Stuart's family. There is no suggestion that the deceased's love for her grandchildren was in any way affected by their having been brought up as Catholics.
Nor do I accept Patricia's evidence about the deceased losing interest in Stuart and his family once Grant and Cathy married and had children. The evidence, including that of Amanda and Marissa themselves, is overwhelmingly against it. As will be seen below, the reduction in contact which occurred after 1988 or 1989 was the result of the position taken up by Stuart and Patricia, and was not of the deceased's choosing.
But although I do not accept that the dispute about Andrew's religion was in fact a cause of the rift, at least so far as it concerned the deceased, I think it is clear that Patricia has convinced herself that it was. Patricia evidently came to believe that Laurence, and to a lesser extent the deceased, were bigoted against her and her children. It is likely that this affected her relationship with them, and her perception of events.
In his evidence, Stuart said that he had not wished to break up the family businesses and what happened was not of his choosing. But elsewhere he made it clear that he felt that he had to stand up for himself in his dealings with his family. That is consistent with the fact that he retained his own solicitor, and with the content of the communications between the solicitors which is in evidence.
In my view, as Stuart's affidavit itself suggests, the falling-out between Stuart and Grant was the real cause of the rift. The falling-out was manifested in disputes between Stuart and Grant about the management of the family business. Laurence evidently saw things the same way as Grant. The deceased appears to have little actual involvement in the management of the properties in contention, Salisbury and Booka, but ultimately supported Laurence and Grant on the management issues in dispute. Stuart was not prepared to tolerate the situation and separation became inevitable.
These conclusions are consistent with the letters by Laurence and the deceased which I have quoted above. The thrust of Laurence's letter is that the breakup of the family business was precipitated by Stuart's desire for financial separation from the family. There is no reason to doubt that this was the case. Nor is there any reason to doubt that, once having set the breakup in motion Stuart antagonised his father further by changing his mind about how the division should take place. There was no response to this aspect of the letter in Stuart's evidence.
It is not possible to date these events precisely. The September 1988 letter from Flashmans refers to a general meeting of TVPL having taken place the previous July (which would be July 1987). This would be consistent with Grant's evidence about the change of TVPL in 1986 or 1987. That predates Grant's date for the breakup, but Grant may not have immediately perceived the developing level of antipathy towards him from Stuart and Patricia. In any event the precise sequence of events is not important. It all happened quite independently of the disagreement between Laurence and Patricia about the religion in which Andrew should be brought up.
Nor do I accept that in acting as he did Stuart was provoked by favouritism towards Grant on the part of his parents, as Stuart and Patricia claimed. For reasons already given, I do not accept Patricia's suggestion that Grant had always been treated more favourably than Stuart. The rights and wrongs of the management disputes which accompanied the falling out between Stuart and Grant cannot now be determined. I am not satisfied that in voting with Grant, Stuart's parents were motivated by favouritism.
What is clear from Flashmans' letter of September 1988 is that by that point Stuart was refusing to speak to the other members of his family. It appears that Stuart was simply not prepared to accept that the management of the jointly owned parts of the family farming venture was to be decided by majority, and this meant that his opinion would not necessarily prevail.
But while I am not satisfied that the allegation of favouritism is true, Stuart and Patricia appear to have convinced themselves that it is. It is likely that this factor too coloured their relationship with Stuart's parents, and their interpretation of events.
The breakdown in the business relationship between Stuart and his family extended to social communications as well. I am satisfied that this was the doing of Stuart and Patricia. The statement in the deceased's letter that Patricia had refused to speak to the deceased was corroborated by Grant and was not disputed. Indeed neither Stuart nor Patricia referred to this aspect of the letter in their evidence at all.
The written submissions for Stuart argued that there was no evidence to support the statements made in Laurence's letter and the deceased's letter that Stuart had treated his mother very badly. For reasons I give in more detail below, I think that this submission is back to front: the evidentiary onus did not lie on Grant to produce evidence demonstrating that the statements were accurate, but on Stuart to show that they were not. But in any event, there is other evidence to support those statements.
As already noted, Stuart did not expressly deny that there had been an incident in which presents had been returned from Bogan Downs. But Patricia did deny it specifically and was not challenged in cross-examination. For that reason I am not prepared to find that it actually happened. But there is no doubt about the failure of Stuart and Patricia to invite Laurence or the deceased to their housewarming in 1989. Nor is there any doubt about Patricia's refusal to speak to the deceased.
The deceased's letter also spoke of her access to her grandchildren being restricted. Once the rift arose, there may have been telephone conversations and visits at Christmas time but the deceased's statement was not directly contradicted and I see no reason to disbelieve it.
The principal focus of Stuart and Patricia's antipathy may well have been Grant, and then Laurence. But there is no doubt that it extended to the deceased as well, presumably because they wished to punish her for (as they saw it) taking sides with Grant. The deceased did not initiate the breakdown in communication and I am not satisfied that she did anything to justify it.
In her December 1993 letter the deceased referred to threats of litigation, and there is no reason to doubt Grant's evidence that she was upset by the proceedings Stuart brought in 1994. The written submissions for Stuart argued that in bringing the proceedings, he was only seeking to recover what he was entitled to, and he could not be blamed for that. But while Stuart was no doubt entitled to bring the proceedings, that does not mean that the deceased's reaction was unreasonable.
If all Stuart was seeking in the proceedings had been to recover the $65,000 it would seem strange that they went on for as long as far as they did. In fact, as we have seen, Stuart's claims in the proceedings extended beyond that. There is no evidence of any effort by Stuart to settle his claim beforehand, rather than proceed to litigation. And if it were truly the case that Stuart moderated his claims out of concern for his mother's and his brother's financial positions, the settlement could have been the occasion for the mending of fences. Instead, it seems to have resulted in little, if any, improvement in the relations between the parties.
Conclusions on continuation of rift: It is clear on the evidence that the deceased never wavered in her love for her grandchildren and contact with them was later restored. Eventually communications also resumed between the deceased and Stuart and the deceased and Patricia, at least in public. But whether there was any depth or warmth to their relationship is much more controversial.
In this regard, I found the evidence about the deceased being a "private person" persuasive and significant. It seems entirely consistent with a person of the deceased's age and social background that she would not have worn her heart on her sleeve in public.
In this context the evidence of the locals called in Stuart's case is of limited weight. Mr Rieth, Mr Davroen and Reverend McLeod only met the parties long afterwards. There is no evidence that they even knew of the rift, even as a matter of hearsay. The happy relationship between the deceased and her grandchildren was real enough. But the witnesses had very limited ability to separate out, and analyse, the degree to which the social contact between the deceased and Stuart and Patricia went beyond keeping up appearances. I have already explained why I regard Mr Davroen's evidence as suspect in any event.
Potentially Mrs Gaffey might have been in a different position. She had known the deceased and Stuart both before and after the rift. But she did not refer to it. The rift was real and caused heartbreak to the deceased. If Mrs Gaffey was not aware of that, her evidence is of little value in determining whether it had been healed.
Mrs Gaffey did give evidence of Stuart participating in barbeques at Double Tanks in his "thirties and forties". I think that this must be a reference to events prior to the rift. In 1988, which is around the time the rift arose, Stuart was thirty-five. That is close enough to Stuart being in his "thirties and forties". There is no other evidence of him attending barbeques at Double Tanks after the rift arose and the surrounding circumstances make it highly unlikely. Similarly, I think it is likely that the evidence which Mrs Gaffey gave about the deceased speaking warmly of Stuart also pre-dates the rift.
I also think that the evidence of Amanda and Marissa is of limited use for present purposes. They would have both been too young when the rift arose in 1988 or 1989 to remember what happened. I would also expect that both parties would have done their best to shield Amanda and Marissa from the conflict. Once they had grown up and left school they would have been able to maintain their own relationships with their grandmother.
The evidence does not identify when contact was resumed. There is nothing to suggest that it was before Laurence's death in March 1991. Patricia's evidence about taking Amanda and Marissa to Double Tanks to only referred to this happening after Laurence's death. But Patricia did not say how long after. The deceased's letter of December 1993 suggests that at that point her access to the grandchildren was still less than she would have liked.
It is notable that when contact between the deceased and Patricia or Stuart did resume, it almost exclusively took the form of dropping the children off at Double Tanks or meeting with the children on neutral ground in Coolabah. The focus of the deceased's visits to Bogan Downs, which appear to have been rare, was also on the children.
The evidence establishes some visits by Stuart to the deceased at Double Tanks and also some visits after she went to care, but it is not impressive. There is even less objective evidence of meaningful contact between Patricia and the deceased. Patricia's presence is mentioned occasionally, alongside Stuart and the children, at events with the deceased in Coolabah, but that is all. There is no suggestion of any relationship of her own with the deceased. Even once contact had resumed, Patricia seems to have kept the deceased at arm's length for the rest of her life.
The written submissions for Stuart argued that the relationship between Patricia and the deceased is not relevant: the claim in these proceedings is by Stuart not Patricia. In my view, however, Patricia's relationship with the deceased does have some practical significance. Continued indifference (at best) on Patricia's part towards the deceased would have made it difficult for Stuart to re-establish any relationship with her. There is no evidence that he ever tried to improve relations between his wife and his mother.
It is true that Grant himself described the relationship between his brother and his mother as having "mellowed". But the way Grant expressed it, the mellowing was only for a period of time. This is curious because there is no other evidence suggesting that there was an improvement followed by a further deterioration. I have already pointed out that it is difficult to be sure from Grant's evidence when this "mellowing" occurred.
Many of the questions which the witnesses were asked in cross-examination about the improvement or otherwise of the relationship focused on the position prior to, and after, 2009. That was the date of the deceased's last will. In a way it was natural for questions to focus on that date, but it was of little assistance for the purpose of answering the present question because the making of the will does not appear to have coincided with any event of particular significance for the relationship between the deceased and Stuart.
There is no evidence that either Stuart or Patricia ever even acknowledged the possibility that they might have been wrong in their treatment of the deceased. Indeed Stuart's case at trial, including his unsubstantiated accusations of misappropriation against the deceased, continued to present himself as the wronged party. His response to the deceased's complaints about his and Patricia's conduct was, in effect, that the deceased "softened" and got over it. But he gave no reason why the deceased should have changed her view of him, and I am not satisfied that she did so.
Doing the best I can, I think that there was some improvement over the years following Laurence's death, in the sense that contact, and a public relationship, resumed. But I am not satisfied that there was any sustained and substantial improvement thereafter.
Conclusions on Grant's relationship with the deceased: I have already explained why I reject the evidence of Marissa and Mr Davroen which sought to denigrate Grant. Because Amanda was not cross-examined, the evidence she gave about Grant supposedly preventing the deceased from replacing her broken glasses was not further explored. But on Mr Davroen's evidence that the deceased later bought herself a replacement pair, the whole point of the story falls away.
In her letter of December 1993, the deceased spoke glowingly of Grant's assistance to her. There is no reason to doubt what the deceased said in that regard. Nor is there any reason to think that it changed thereafter.
The fact is that Stuart and his family have had very little contact with Grant since the rift arose. During that period Stuart did little or nothing for his mother, leaving that to Grant. Against that background, I was not impressed by the attempt to portray Grant as a grasping and controlling man. I think it reflects adversely on Stuart and his witnesses.
Although Stuart has by no means been financially unsuccessful, Grant has been more successful. He has ended up with the better-watered properties, which have proved to be more valuable. When this was touched on in cross-examination, Stuart was at pains to say that he did not resent this; it was simply a fact. But I got the impression from Stuart's evidence, and the tone of the written submissions made on his behalf, that he may well be jealous of Grant.
Conclusions on deceased's testamentary intentions: In her December 1993 letter the deceased gave her reasons for not leaving any "legacies" to Stuart. No will from that period was in evidence, but it is clear from the letter that the deceased had made one which left Stuart out, presumably in favour of Grant.
The deceased's December 1993 letter was only obtained by Grant after the deceased's death, from the custody of a law firm in Nyngan. The written submissions for Stuart suggested that the deceased had probably forgotten about it following the supposed improvement in relations between her and Stuart. But there is no independent evidence to support this and the terms of the deceased's last will, made in 2009, tell a different story.
Nor do I accept the suggestion that the deceased was somehow under Grant's thumb. The evidence shows that she bought a ten thousand acre property and ran it herself when she was only about twenty-four years old. The accounts of the deceased which emerge from the evidence do not in any way suggest that she was ever a weak-willed person or was easily led. I see no reason to think that her testamentary dispositions from 1993 onwards did not represent her own judgments and wishes.
Against this background I found it difficult to make sense of Mr Davroen's account of his supposed conversations with the deceased concerning her testamentary arrangements. Any such conversations must have taken place after (and, one would think, some time after) she made her 2009 will. On the other hand, to be meaningful, they must have taken place before the deceased's cognitive capacity declined following her institutionalisation in Nyngan. But if, as Mr Davroen suggested, she changed her mind about Stuart in the intervening period, there would have been no apparent obstacle to altering her will accordingly.
For these reasons I thought that Mr Davroen's suggestion that the deceased somehow ran out of time to change her will did not ring true. Furthermore, I have already explained why I do not regard Mr Davroen as a reliable witness. That is a further reason not to accept his evidence about the deceased's testamentary intentions.
For similar reasons, I do not accept the evidence from Stuart of the deceased supposedly expressing regret to him about her testamentary dispositions. In particular, if the deceased did say that she would like to give Stuart a restart with a bullock and a horse, that sounds as if she would probably have lost testamentary capacity by that point.

Stuart's circumstances

Stuart has had long-standing back problems. Since July 1995 he has been seeing a specialist, Dr John Sheehy.
A report from Dr Sheehy in December 2019 is in evidence. According to the report, Stuart first began to develop lower back pain in the late 1980s and early 1990s. He has had surgery in an attempt to deal with his back pain on four occasions: November 1996; February 1999; March 2017; and August 2018. Stuart also had a knee reconstruction in the late 1980s and a thyroidectomy in 2015.
I have already mentioned Stuart's diagnosis with ADD in 1991 and hospitalisation with depression in 1997, and the psychiatric report from Dr Snowdon in 2000. Stuart said that he had a nervous breakdown in 1991, as a result of the rift in his family and his father's death. While the rift cannot have helped, Dr Snowdon was inclined to attribute Stuart's psychological difficulties to guilt about his children's health conditions because they are genetic. There is no evidence that Stuart is undergoing any current treatment or therapy.
Since the financial separation between Stuart and the rest of his family in the early 1990s, he has continued to farm Bogan Downs (now including Mount Pleasant as well). About ten years ago, Stuart and Patricia also established a farm-stay venture in a cottage on Bogan Downs, renting it out to visitors for short stays. It is called "Blue Wren Cottage".
In January 2015, Stuart turned over the Mount Pleasant part of Bogan Downs to carbon sequestration. He entered into a long term contract under which he is obliged to maintain the land in a forested condition. The contract also obliges him to fence the land, keep it clear of feral animals, and maintain firebreaks. In return, he receives annual payments. He received $1,020,000 in December 2015 and $300,000 in January 2017 (presumably for 2016). Since then he has been receiving $210,000 per year. The payments last until part way through 2025.
Stuart and Patricia operate through a trust known as the MacAlpine Family Trust. The farm activities on Bogan Downs (including the carbon sequestration activities and also, it seems, the farm stay venture) have been conducted through that trust. The farm equipment and the stock are assets of the trust, but the land itself is not. That remains owned by Stuart alone.
Until recently, Patricia has undertaken paid employment to bring in off-farm income. Initially she undertook shift-work as a nurse in Brewarrina and Nyngan. For the last fifteen years or so she has worked at the Brewarrina gaol. The gaol is closing and as a result she will lose her job there.
In August 2010 Stuart and Patricia purchased a unit in Pitt Street in Sydney. The purchase price was $693,000. This was financed with a mortgage loan from a bank of $625,000.
The unit was apparently bought for the benefit of Andrew. It has been modified so it is suitable for Andrew's disability. Andrew is employed and has a fiancée who lives with him at the unit. They hope to start a family soon. Since June 2017 Andrew has been paying rent, which goes towards the mortgage repayments and the strata levies and outgoings. Stuart and Patricia cover the rest of the costs.
In 2015 Amanda and her husband wanted to buy a property for themselves. They selected a property at Coolabah called "Ramsy Park". Stuart and Patricia bought a half share of the property to help them. The purchase was completed in March 2017. The purchase price was $1.5 million, of which Stuart and Patricia paid half. Stuart and Patricia also guaranteed the loan which Amanda and her husband took out to fund their half of the purchase.
I have already mentioned that Stuart and Patricia's children went to boarding school after completing primary school at Coolabah. They all attended private boarding schools in Sydney. Amanda and Marissa went to Loreto Normanhurst. Andrew went to St Ignatius' College, Riverview.
Both Patricia and Stuart were asked in cross-examination about applications they made to the Riverview Foundation for bursary support for Andrew. Two applications were made, in 2003 and 2004. The first application did not succeed but the second one did and bursaries were awarded, by way of reduction of fees, for 2004 and 2005 when Andrew was in years 11 and 12. The total amount of the bursaries awarded was approximately $47,000.
The 2003 application form stated that Stuart and Patricia's income for the preceding three years (1999-2000, 2000-2001 and 2001-2002) had been $331,000 gross, $55,000 net; $295,000 gross, $79,000 net; and $339,000 gross, $13,000 net. The application was accompanied by a letter from Patricia to the members of the Foundation's bursary fund committee dated February 2003. In the letter she stated: Stuart and I do not have a large enterprise at "Bogan Downs" but with off-farm employment pursued for ten years and reasonable seasons we had managed to educate our three children at both Colleges [Loreto and Riverview]. However, due to health reasons I was unable to continue my employment for the past two years. This reduction in income alone would not have been too deleterious, but coupled with the worse drought in the past century, we have found ourselves denied an income for the last two years and also soaring costs to feed the stock we had on hand. Of course, all the implicit costs of running a farming and grazing concern remain constant, irrespective of income or not.
The 2004 application was accompanied by a letter to the members of the bursary fund committee dated March 2004. The letter was sent under the hands of both Stuart and Patricia but was drafted by Patricia and much of it was in the first person. The letter was obviously based on the letter which had been written the previous year. The passage which corresponds to the passage which I have quoted from the previous letter was: Stuart and I do not have a large enterprise at "Bogan Downs", however, with off-farm employment pursued for twelve years and reasonable seasons we have managed to educate our three children at "Riverview" and Loreto, respectively, until last year. I was compelled to remove myself from the workforce for two years due to ill-health and this, unfortunately, was at a time when most of the country entered into the worst drought of the century. The north-western of N.S.W., where we are located was very severely affected and now, three years on, have been employed for the past twelve months but the drought still rages. The loss of wages coupled with the drought conditions made the situation very difficult financially. Of course, the implicit costs of conducting a farming and grazing concern remain constant and some costs such as feeding stock, soared.
There is no doubt that there was a severe drought which would have affected the operations of Bogan Downs at the time. But it was not correct to say that Patricia had been unable to work for the two years prior to 2003. In cross-examination she said: A. I may have stretched the truth a little to say I was completely withdrawn myself from employment, but I was still I wasn't particularly well, and I only ever worked three, four days a fortnight. I shared jobs with another lady, so I may have been working reduced hours, which may have been one day or so. So, vaguely - broadly speaking, I withdraw myself from employment, normally that would refer to a 40 hour week, week in, week out. I only have four or five days. I may have reduced those days, which, in my mind, may have warranted me saying, "I've withdrawn from employment." Q. You were gilding the lily, weren't you, on both occasions? A. I was. I would have to agree, yes, I was.
The information provided to bursary applicants made it clear that the Riverview Foundation regarded the payment of a bursary as giving rise to a "debt of honour" obliging successful applicants to repay the amount provided if they later became financially able to do so. Stuart was asked about this in cross-examination.
Counsel put to Stuart that sums totalling $4,500 were repaid to the Foundation in 2015, 2016 and 2018. When counsel put that there had been no other repayments, Stuart suggested that Patricia told him that a further payment of $5,000 had been made, but there was no evidence about that. The following exchange occurred: Q. You could have paid back all of the money when you got a million dollars by way of carbon funding couldn't you? A. Could have paid for a lot of things.
The written submissions for Stuart tried to downplay the significance of the statements to the Riverview Foundation that Patricia had withdrawn from the workforce for health reasons, and her concessions in cross-examination by way of response. The submissions pointed out that the phrase "gilding the lily" came from counsel. But it was freely accepted by Patricia who herself volunteered that she may have "stretched the truth".
In reality, both phrases were euphemistic. Despite the rationalisations offered by Patricia in the evidence which I have quoted, the statements made in the 2003 and 2004 letters on this subject were incorrect ones designed to secure financial advantage, as Patricia would have realised. Her ready acceptance of this in cross-examination displayed an appropriate level of candour but the making of the false statements in the letters reflects adversely on her credit.
I was also unimpressed by Stuart's evidence on this point. It was clear that he and Patricia could have repaid their "debt of honour" in full by 2015, when Stuart received his first carbon sequestration payment, at the latest. In deciding to use their earnings for other purposes they were within their rights, but they were making a deliberate choice, and Stuart should have been more open and conceded that that was so.
The accounts for the MacAlpine Family Trust for the 2018-2019 are in evidence. During the year the trust made a profit of $100,000. This was attributable to the carbon sequestration income; the loss on farming activities was approximately $20,000.
The balance sheet for the trust as at 30 June 2019 shows net assets of $330,000. Apart from stock and the farm assets, there were loans from the trust to Stuart and Patricia, and to Andrew. There were also loans to the trust from an apparently related company called "S & PA Pty Ltd". There was no evidence about these loans.
Patricia estimated that she and Stuart draw about $90,000 a year from the farm. This includes $57,000 in living expenses and $16,500 in medical expenses.
There was no evidence about the level of Stuart and Patricia's income before 2018-2019 (except for the figures in the bursary application for the three years up to 2001-2002). Presumably, however, that income was sufficient to fund the initial contribution to the Sydney property and the purchase of the half share of Ramsy Park in 2017. In this regard, by the time the Ramsy Park purchase settled on March 2017 Stuart had received a total of $1.3 million in carbon sequestration payments.
Stuart is now 67 years old. In Dr Sheehy's December 2019 report he stated that, in his opinion, Stuart was unfit for work involving repetitive lifting or bending or prolonged sitting. The disability will be permanent. It is a consequence of severe degenerative changes that have developed in Stuart's lumbar spine and which the surgery has only partially alleviated.
The report stated that Stuart would require a further operation on his spine over the coming months and regular neurosurgical review after that indefinitely into the future. The spine makes him much more likely than other people of his age to require care in future (which may need to be carried out in some sort of nursing home facility). Dr Sheehy also recommended that Stuart undertake modifications to his home to accommodate his disabilities.
For many years Stuart's medical advice has been that he should not continue to work on the farm. Dr Snowdon's report records that in the early 1990s a general practitioner Stuart was consulting in Nyngan, Dr Y T Chan, was suggesting that he "sell the farm and buy flats". In early 2000, Stuart was told by Dr Garrick, a neurologist in Sydney, that he should "get a clip-board and become a foreman".
Stuart said he was offended by Dr Chan's suggestion. He said that this was because he expected to receive medical advice rather than financial advice. But I think it is clear that he has always intended, and continues to intend, to live and work at Bogan Downs for as long as is humanly possible. In cross-examination Patricia acknowledged that the suggestion that Stuart should retire from farming was "rational" but said that Stuart would never agree to it.
At the time of the trial in December last year, Bogan Downs was in its fourth year of a severe drought which had affected nearly all of New South Wales, and much of eastern Australia. The property had either been, or would shortly be, completely destocked as a result. This, of course, did not and does not affect the carbon sequestration income which Stuart receives from Mount Pleasant.
The evidence at trial showed Stuart's and Patricia's assets and liabilities to be as follows: (1) Stuart owns Bogan Downs (including Mount Pleasant) which is apparently unencumbered. Its value is estimated at $3.5 million, although a property of this size would be difficult to sell quickly. In addition, Stuart has superannuation worth $170,000 and a Toyota Utility which he values at $20,000. (2) Stuart and Patricia's jointly owned assets and liabilities (including those of the MacAlpine Family Trust) include farm equipment which they value at $173,000. That equipment carries finance of $72,000, leaving a net value of $100,000. The net cash position with the bank is $26,000 overdrawn. Stuart and Patricia also own a half share of Ramsy Park (value agreed at $750,000) and the Sydney unit (value agreed at $900,000). The mortgage liability on the Sydney unit is $500,000. Stuart and Patricia also own shares valued at $90,000. This results in total jointly owned assets of $1.3 million. Taking Stuart's half share of $650,000 and adding it to his own assets gives him a net worth of $4.3 million. (3) In addition to her $650,000 in net joint assets, Patricia has superannuation of her own of $170,000.
In the period between the trial and the completion of the parties' submissions, there was widespread rain in New South Wales which has, in many places, ameliorated the drought conditions. There was, however, no evidence of the specific effect on the conditions at Bogan Downs.
Stuart and Patricia gave evidence of the following expenditure requirements at present and in the future. According to Patricia, restocking the property will cost from $400,000 up to $700,000. In addition, fodder will be required at a cost of up to $250,000.
The costs of Stuart's surgery are estimated at $70,000, but an unspecified amount of this will be covered by his private health insurance. While Stuart is unable to work, a labourer will be required to replace him at a cost of $5,000 per month.
According to Stuart and Patricia, when Stuart is no longer able to work a full-time labourer will be required to replace him. This was estimated at $80,000 to $100,000 a year. They also say Stuart needs a new 4 Wheel Drive with special suspension ($90,000) and home modifications ($20,000) to accommodate his back problems. Home care and respite care in the future, should that be required, would cost $40,000 to $70,000 per year.
Stuart and Patricia would also like to make further provision for their children. This would include paying off the loan on the Sydney unit. Patricia also mentioned a need to undertaking works on Ramsy Park to improve its drought resistance. She said that she and Stuart had already funded work on a search for bore water which cost $15,000.
Stuart was cross-examined about whether, should his claim succeed, he would spend the money on the "needs" identified in his evidence out of his own pocket. His response was: Do that regardless. That's a leading question because that'd be a financial one. There's a lot of things I'd like to do there but if I have drought, don't make any money, use a lot of money up I may not be able to stay. It's all about security and farm security.
Stuart and Patricia were cross-examined about the arrangements concerning the unit in Sydney. In her affidavit, Patricia stated that the unit was let to Andrew at a "subsidised" rent. But when asked about how much the subsidy was, she professed ignorance of the current state of the market.
Both Stuart and Patricia acknowledged that Andrew is well paid in the work he does (the nature of which was not revealed in the evidence). He also has a property in Queensland, albeit that the property is the subject of a mortgage. Presumably it was acquired as a negatively geared investment. When Patricia was asked why Andrew could not buy the Sydney unit himself, she replied that it was an "investment for the future".
I thought that the evidence from Stuart and Patricia on this subject was somewhat defensive. Andrew has had great challenges in his life and it is not surprising that they should wish to assist him. But on the evidence it is far from clear that he is actually in need. The fact is that Stuart and Patricia have no intention of selling the unit or terminating the subsidy which they provide to Andrew. They are making a choice to provide for Andrew, a choice which, on the evidence, they appear to be well able to afford.

Grant's circumstances

Grant continues to own Salisbury. His affidavit did not separately mention Booka and it is unclear whether that property is now treated as part of Salisbury. Nor did the affidavit mention Tubba Villa which has presumably been sold.
Grant and his wife Cathy have set up a discretionary trust as well as a superannuation trust. Between them, the two trusts own properties at Grenfell which were bought in 2017. Grant estimated his net assets at $8 million.
There was no evidence as to any expenditure requirements Grant may have. It was not suggested that he is relevantly in need.

Claim for provision

Stuart's written submissions in chief did not specify the quantum provision he contended he was entitled to, and the omission was picked up by counsel in Grant's submission in response. In reply, Stuart's submissions made it clear that he was claiming costs and expenses which he was likely to incur in the future, on the basis of "financial need" (see s 60(1)(d) of the Act). These needs were said to "include": (1) $90,000 for the costs of the back operation recommended by Dr Sheehy, including replacement labour at Bogan Downs (see [302] above); (2) $110,000 for the new Toyota utility and home modifications (see [303] above); (3) $40,000-$70,000 per annum in care costs (see [304] above: the evidence was only that Stuart was likely to need such care in the future; I take the claim as being for a lump sum to cover that likelihood, but there was no suggestion in the submissions as to how that lump sum would be calculated); (4) $80,000-$100,000 per year in replacement labour (see [303] above: the same comment applies as for (3)); (5) $300,000-$700,000 for restocking costs plus "up to" $250,000 for fodder (see [301] above); (6) $500,000 to pay off the mortgage on the Sydney property (see [299] above).
In Vigolo v Bostin (2005) 221 CLR 191, the High Court considered a family provision claim by a son against the estate of his father. The family had been involved in farming and the son had contributed substantially to the success of the farming venture on the understanding that he would ultimately receive one of the properties, which was in his father's name. There was a falling out between the son and his father over the son's involvement in other ventures. This was followed by a deed of settlement which divided the family assets between the father and the son. When the father died, he had left the son out of the will, in favour of the other children of the family (who were each considerably less well-off than the son).
Callinan and Heydon JJ said at 221 CLR 191 [124]: The appellant is a middle-aged, married father of one dependent child, and is of substantial means. At the time of his father's death, he and his wife had assets worth approximately $1.5m. No evidence was adduced at trial of the amount of money required (or desired) by the appellant for his ''proper maintenance, support, education or advancement in life'', and no suggestion could be made that the appellant was unable to meet, from his own resources, the cost of properly maintaining, supporting, educating or advancing himself in life.
It was argued on behalf of the son that although he had no claim based on need he had a "moral claim" based on his contribution to his father's estate. But this claim was rejected by the Court (see Gummow & Hayne JJ at [74]-[83] and Callinan and Heydon JJ at [125]-[131]; see also [123]). The application for provision therefore failed.
Delaforce v Simpson-Cook (2010) 78 NSWLR 483 concerned a claim by the deceased's ex-wife to a property, described in the judgment as the "subject property", which was a house adjoining the former matrimonial home. The subject property had been acquired by the deceased in his own name, but he had made promises to the plaintiff about her receiving it, as she had always wanted to own it.
At first instance the plaintiff succeeded both on the basis of a proprietary estoppel, and by way of family provision. She had assets of $4 million which apparently included a number of properties, with liabilities of $1.5 million. But there was a "tight balance" between the plaintiff's income and expenditure, and some of the properties were in need of urgent repairs which would cost $150,000. The plaintiff was employed full time but her job security was uncertain.
Handley AJA, speaking for the Court of Appeal, said at [98]: The plaintiff would have liked more income, or a capital sum to ease her liquidity problems and cover the costs of the repairs but those needs were not addressed by a transfer of the subject property which the plaintiff would never sell. With net assets of $2.5 million she had no need for provision for her maintenance, education or advancement in life and if she did have such a need the order did not address it. In these circumstances the deceased's promises and the plaintiff's long felt wish to secure the property could not create a need of the kind addressed by the Act or support an order under it. The executor's appeal against the order under the Family Provision Act must therefore be allowed.
Hannaford v Hannaford [2010] NSWSC 911 was, like Vigolo v Bostin, and like this case, a family provision claim by one of the sons in a farming family. The farming assets were held in a Robertson scheme company controlled by the mother. After a falling out between the mother and the son, a settlement was entered into under which the son received one of family holdings, called "Inverness", in exchange for his interest in the company. He received nothing further under his mother's will and sought further provision from her estate.
Bergin CJ in Eq found that, as a result of different valuation methods having being used to value the various family holdings, the son received under the settlement approximately $700,000 less than his proportionate share. Her Honour also found that when the deceased made her will, she was not aware of this and believed that the son had been fairly treated. Her Honour referred to the passage which I have quoted from Delaforce and continued (at [74]): Although qualifying this statement by saying that if the applicant "did have such a need the order did not address it", it might appear that the Court was expressing the view that if one has net assets of $2.5 million there is no demonstrable need for provision under the Act. I do not read the judgment to preclude an order being made under the Act in all cases in which there may be net assets of $2.5 million. Much will depend upon the facts of each case including the financial burdens that may be placed upon an applicant in the future by reason, for example, of an expected inability to work and an absence of any superannuation benefits or a fund to assist in supporting the applicant and his or her family in the future. Circumstances may vary dramatically from case to case. For instance, in Delaforce the property in question was in the inner west of Sydney and not used for the generation of income. In the present case, Inverness is a rural property used to generate income and exposed to the vagaries of the weather including severe drought.
I think that the passages I have quoted from Vigolo and Delaforce both recognise that there comes a point at which a plaintiff's ability to provide for his or her own maintenance, education and advancement ordinarily precludes any entitlement to further provision. Implicit in this is that, in assessing "financial needs" under s 61(d), the court adopts an objective or standardised approach. The approach is standardised in the sense that it does not have regard to the size of the estate, the means of the other beneficiaries, or other factors extraneous to the plaintiff's circumstances.
I do not think the other point which Handley AJA made in Delaforce about the particular provision in that case not satisfying the plaintiff's needs detracts from this. Nor do I think that what Bergin CJ in Eq said in Hannaford qualifies it; although, as her Honour observed, where the threshold lies in any particular case will depend on the plaintiff's age, state of health and possibly other factors. Nor is it inconsistent with the well-established principle that in determining "financial need" for the purposes of the Act the court is not limited to what is required for bare subsistence: see Steinmetz v Shannon (2019) 99 NSWLR 687 at [128]-[131].
Of course this does not mean that no plaintiff whose assets exceed the threshold can succeed in a family provision claim. There may be other factors which mean that "proper" provision extends beyond the applicable standard. In Vigolo, the fact that the plaintiff had contributed substantially to the deceased's estate was seen as being, at least potentially, such a factor. In Hannaford, it was the fact that the previous division of assets was, unknown to the deceased, less than she had intended. But once the threshold is reached then, unless there is some other factor present, the claim must fail, independently of the value of the estate and the merits of the competing beneficiaries under the will.
In the present case, it is notable that some of the expenditure claimed by Stuart as "needs" result from the back condition from which Stuart has suffered for many years, and Stuart has not satisfied those "needs" out of the substantial sums of money which he has received in recent times. The claim for a new Toyota utility is one example.
In this regard, the passage which I have quoted from Stuart's cross-examination at [305] above is significant. It gives the impression that what Stuart really wants is a lump sum, the larger the better, which he can draw on according to his various farming and family priorities as he then sees them.
Of course, if the deceased failed to make adequate provision for Stuart, and he is entitled to a provision, it will be up to him how he spends it. But the fact that he has not so far seen fit to meet the alleged "needs" calls into question whether they are truly needs.
In any event, it is clear that Stuart has sufficient assets to pay for such expenditure many times over. Stuart's submissions argued by way of response that Stuart and Patricia were both "asset rich and cash poor". The submissions also stressed that farming is in Stuart's blood; he has lived his whole life at Coolabah and farming there is all he knows. For him to uproot himself and move now would be, so the argument ran, unthinkable.
I do not accept these arguments. If the Court were assessing damages in a personal injury claim, it might be necessary to ask whether (for instance) the plaintiff's desire to remain in his or her home, and the corresponding need for in-home care, were reasonable. But that is not the measure of "proper" provision under the Act. The Act is not concerned with compensating wrongdoing by the deceased but with altering the deceased's testamentary arrangements to the minimum extent necessary to discharge the deceased's moral obligation (I use this phrase having regard to what was said in Steinmetz v Shannon at [44] and [109]) to make provision for the beneficiary.
In my opinion the reasoning in Delaforce applies here. The deceased was not obliged to underwrite what is ultimately a choice by Stuart to continue to live on the farming property he inherited, any more than she would have been obliged to do so if he had had no farming backyard and he had acquired the property later in life after the family rift had arisen. Still less was the deceased obliged to supply working capital to Stuart so as to reduce the borrowings which he would otherwise have to make to pursue his farming business.
The drought has been a severe test for Stuart and Patricia but it is part of the farming cycle. It would be absurd to suppose that Stuart's entitlement from his mother's estate could depend upon whether judgment was delivered before or after the recent rains, or require an investigation into the degree to which those rains broke the drought specifically on Bogan Downs.
So far as the alleged need to pay off the mortgage on the Sydney flat is concerned, I question whether a plaintiff's needs under the Act extend to the advancement of his or her adult child. If the deceased had a moral obligation to provide indirect assistance to Andrew in this way, would Patricia's parents have had a similar obligation? Would the Court need to inquire into whether Andrew had received, or was likely to receive, legacies from that or any other source?
In any event, that "need", on analysis, is a "need" to reduce the cost to Stuart and Patricia of subsidising Andrew's living arrangements. For reasons I have given, I am not satisfied that Andrew relevantly needs this subsidy. The purchase of the unit was a choice by Stuart and Patricia. So was (and is) the decision to subsidise Andrew's occupation of it. In my opinion the deceased had no obligation to underwrite those choices.
Finally, I observe that on no view could it be considered necessary for Stuart and Patricia to have purchased Ramsy Park. I do not criticise Stuart for his generosity in applying $750,000 of his carbon sequestration monies to assisting Amanda and her husband to acquire the property. But if Stuart were truly in need, the money tied up in Ramsy Park would be the obvious place from which that need could be satisfied.
There was no evidence about the state of the residential property market in Nyngan or Cobar. But it is quite clear that, with $4.3 million in net assets, Stuart could buy a retirement home there (or in Sydney for that matter) and have more than enough money left over to live comfortably for the rest of his life. The simple fact is that he is not relevantly in need.

Contribution to deceased's estate

Stuart's written submissions argued, consistently with his allegations in the proceedings, that Stuart had contributed to the value of the deceased's estate through leaving money on the table in the 1995 settlement of his claim against his father's estate, and, involuntarily, through the alleged misappropriations of his inheritance by the deceased.
If these allegations were sustained, they would not support claims for expenditure as formulated on Stuart's behalf in these proceedings. The appropriate provision would be one calculated by reference to the contributions to the estate. Stuart's case never attempted to quantify what these were. In any event I have rejected the claims on the merits.
In passing, I revert back to my concern that, in the case of the 1995 settlement, Stuart is seeking to go behind the terms of a settlement which he entered into with the benefit of legal advice. In Vigolo, there was also a family breakdown followed by a settlement and that was seen as critical. As Gummow and Hayne JJ said (at [78]), the statute required attention to all relevant circumstances, and: These included not only the efforts of the appellant in building up the family assets over many years, but also the effect of the breakdown of the substratum of the family relationships upon which had depended the continuation of the representations made to the appellant by his father. Those relationships and the continued currency of the assurances given to the appellant were changed fundamentally by entry into the Deed of Settlement and the steps taken thereunder during the remainder of Mr Vigolo's life.
In my view, this reasoning suggests that the breakdown and settlement was crucial because it changed the parties' expectations. Once the family relationship had dissolved into acrimony and the parties were negotiating a financial separation, the plaintiff could not reasonably have expected that his previous efforts in building up the family business would be recognised, ultimately, in his father's will. If those efforts were to receive a financial recognition, it would be through the settlement or not at all.
If this analysis is correct, it would be equally applicable to these proceedings. Stuart could not reasonably have thought that he would receive anything more for the monies he provided for Booka than what he obtained in the 1995 settlement. Similar reasoning might apply to the misappropriation claims based on the ledger book in his possession, if Stuart was aware of the basis for those claims and chose not to pursue them, but I do not need to consider this point further for the purposes of this judgment.

Deceased's family relationships and testamentary intentions

In Sgro v Thompson [2017] NSWCA 326, White JA, with the agreement of the other members of the Court of Appeal, repeated and reaffirmed the statement of principle which he had previously (as White J) made in Slack v Rogan (2013) 85 NSWLR 253 (at [127], citations omitted): In my view, respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed. This is subject to the qualification that the court's determination under s 59(1)(c) and s 59(2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will.
As his Honour acknowledged in Olsen v Olsen [2019] NSWCA 278 at [76]-[78], this statement of principle could be controversial if it were understood to involve a reading down of the Court's powers under the Act so as to preserve testamentary freedom. But it is not necessary to go into that here. His Honour's statement can be understood as operating at least on an evidentiary level. Where in a will the deceased has made a judgment based on facts which the deceased is likely to have known, the court can and should recognise that, in the ordinary case, the deceased would have had a better understanding of those facts than the court can hope to have gleaned from the trial.
His Honour's statement also reinforces where the onus lies in litigation of this type. It is for the plaintiff to prove that the provision made in the will was inadequate for his or her proper maintenance, education or advancement. The propriety of a provision depends on the circumstances and if the plaintiff wishes to point to factual circumstances which make the provision inadequate the plaintiff must establish those facts. In many cases a claim for further provision involves questioning the deceased's testamentary judgment. In such a case, if there is a suggestion that the judgment has in some way miscarried, that is for the plaintiff to prove. Those who represent the deceased's estate do not bear any onus to demonstrate the judgment's soundness.
In the present case, the deceased's 2009 will reflected a testamentary judgment she made, which was adverse to Stuart, going back to 1993. To the extent that the judgment depended upon the benefits previously conferred on Stuart, on Stuart's role in the family rift, and in his behaviour thereafter, the deceased will have had a far deeper knowledge of the facts than was revealed by the evidence presented at the trial.
The written submissions for Stuart contended that the estrangement was at least partly caused by bigotry and further that it was overcome in later years. But on my findings those contentions fail on the facts.
It is true that the will resulted in Grant doing significantly better out of the family assets than Stuart has. But Grant also contributed more to the deceased's wellbeing, and to her material circumstances.
Stuart's written submissions relied on the decision in Hannaford which was said to have common features to this case. But in my view the critical distinction is the finding in Hannaford that the deceased intended the plaintiff to receive a larger share of the family assets than he in fact received, and that had she known this she would have made different provisions in her will. In the present case there is no comparable basis for saying that the deceased's judgment, as expressed in the 2009 will, miscarried. And on my findings, none of the relevant circumstances changed in any significant or unforeseeable way between when the will was made and when the deceased died (or up to the date of trial).

Conclusions and orders

I have concluded that the deceased's 2009 will did not leave Stuart without proper provision for his proper maintenance, education or advancement. Stuart's claim fails and must be dismissed.
I was asked by the parties to defer dealing with the question of costs until after I had delivered my judgment. If the parties are unable to agree on the costs order which follows from my decision, that issue may be the subject of further argument.
The orders of the Court are:
Order that the plaintiff's claim be dismissed.
Direct that the parties bring in an agreed minute of order concerning costs, or in default of agreement make any application concerning costs, within 14 days.

Amendments 06 July 2020 - [329] amendment typographical error 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: 06 July 2020

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