Macaulay v Macaulay

Sullivan [2006] NSWCA 312 Thompson v Palmer (1933) 49 CLR 507; [1933] HCA 61 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7 Texts Cited: B McFarlane, The Law of Proprietary Estoppel, (2nd ed, Oxford University Press, 2020) J D Heydon, M J Leeming and P G Turner, Meagher, Gummow & Lehane's Equity: Doctrine & Remedies (5th ed, 2014, Lexis Nexis Butterworths) M Blackett-Ord and S Haren, Partnership Law (6th ed, 2020, Bloomsbury Professional) R I Banks, Lindley and Banks on Partnership (Sweet & Maxwell, 20th ed, 2017) Category: Principal judgment Parties: Scott Alexander Macaulay (Plaintiff) Craig Neil Macaulay (First Defendant) Christina Jane Kronenberg (Second Defendant) Tracey Maree Ford (Third Defendant) Representation: Counsel:

M Gunning (Plaintiff) A J McInerney SC/N Kabilafkas (Second and Third Defendants)

Gordon Garling Moffitt (Plaintiff) Campbell Paton & Taylor (Second and Third Defendants) File Number(s): 2021/00238598

Table of contents The dispute in broad outline Some matters of context The farms The Partnership The parties Neil and Janet Scott Christina Craig Tracey The relevant wills January 1988 Wills February 2007 Wills October 2007 Wills August 2016 Will August 2018 Will The facts in more detail Some preliminary observations about the evidence Scott's evidence about the representations The making of the February 2007 Wills April 2007 - property settlement; alleged assault The October 2007 Wills Scott takes work off the farm Rabobank refinancing in 2010 Janet dies Mr Twomey suggests that the October 2007 Will be revisited The June 2015 meeting The 30 September 2015 meeting November 2015 - alleged assault The February 2016 meeting and the 2016 Will 16 September 2016 - alleged assault 31 October 2016 - alleged assault 4 February 2017 - alleged assault March 2017 - Macaulay family discussions June 2017 - Neil sees Mr McGroder 30 July 2017 - the ute incident Neil terminates the Partnership The 2018 Will Scott's amendment application in relation to the 2018 Will Estoppel Did Neil make the representations? How did Scott understand the representations? Reliance Detriment Legal Principles - Detriment The parties' positions on detriment Has Scott suffered detriment? Parker v Parker Was it unconscionable of Neil to resile from the representations? What relief is appropriate? The partnership dispute The Fairfield debt Was Miltons partnership property? The 2016 Agreement about Janet's interest in the Partnership Taking of accounts Other claims for relief Constructive trust claims Succession Act ORDERS

JUDGMENT

1. The parties are the children of the late Neil Macaulay, who died in 2021, and the late Janet Macaulay, who died in 2012.
2. The plaintiff is Scott Macaulay. The defendants are his brother Craig Macaulay and his sisters Christina Kronenberg and Tracey Ford. I will adopt the naming convention used by the parties and, without intending any disrespect, I will generally refer to the members of the Macaulay family by their first names.

The dispute in broad outline

1. In 1989, Neil, Janet and Scott entered into a partnership known as the Parkvale Pastoral Co Partnership (the Partnership) for the purpose of carrying on the business of farming on Parkvale, a property of about 2,121 acres near Parkes. Neil and Janet had acquired Parkvale in 1988 and it was held in their joint names.
2. In time, two properties adjacent to Parkvale were also purchased. In 1994, the Partnership borrowed funds from the Commonwealth Bank of Australia (CBA) to purchase a 404 acre property directly to the south of Parkvale known as Miltons or Miltons Block but which was sometimes referred to in the evidence as Cordells. Legal title to this property was held by Neil, Janet and Scott as tenants-in-common in equal shares. In 1999, Scott borrowed funds from CBA which he used to purchase a 670 acre property directly to the east of Parkvale known as Fairfield. Scott is the sole registered proprietor of Fairfield. The parties agree that neither Parkvale nor Fairfield was partnership property. There is a dispute about whether Miltons was partnership property.
3. Scott farmed Parkvale, Miltons and Fairfield in the Partnership for most of his adult life up until 2017, when there was a serious rift in the family. This rift, which had been brewing for some time and which was largely stoked by disagreement as to what Neil's will should provide for Scott and Craig, eventually resulted in Scott being banished from the farm, in the termination of the Partnership, and in Scott being ostracised from the family altogether. There were numerous allegations that Scott had physically assaulted Neil, including one which became the subject of criminal proceedings, where Scott was found not guilty at trial.
4. Neil gave notice of termination of the Partnership (by then consisting only of him and Scott) as of 1 September 2017 but there has never been a winding up or taking of partnership accounts. The parties remain in dispute as to the partners' entitlements.
5. In addition to Parkvale and their interests in the Partnership, Neil and Janet acquired some non-farm assets during their lifetime. These included a modest house in Endeavour Place, Parkes, where they lived in their later years. They also accumulated some other savings and investments including superannuation.
6. By his final will made on 10 August 2018 (2018 Will), Neil left his estate as follows: 1. To Scott, his property at Endeavour Place in Parkes. 2. To Christina, Tracey and Craig, the balance of his estate including the whole of Parkvale and his interest in Miltons, in equal shares.

Some matters of context

1. Before addressing the issues in detail, it is convenient to describe some general matters of context.

The farms

1. Parkvale is located just north of Parkes on Renshaw McGirr Way (or, as it is also known, the Wellington Road), which runs in a northerly direction but then forks slightly north-east at the junction of Olieview Road, which runs north from that point. The eastern boundary of Parkvale runs along Renshaw McGirr Way and Olieview Road. Miltons adjoins the southern boundary of Parkvale and also borders Renshaw McGirr Way. Fairfield is to the east of Parkvale on the other side of Olieview Road. It is therefore separated from Parkvale by the road.
2. There were many sketches, paddock-maps and photographs of the properties in evidence. For the purpose only of illustrating the general layout of the properties, I have slightly edited one of those sketches to the following:
3. Parkvale consists of a mixture of highly arable red loam and clay soils, as well as undulating red granite soils. There are some areas of light timber, a creek line, a homestead and many significant farming improvements around the area of the homestead.
4. Miltons and Fairfield consist of red and grey loam soils and small areas of light timber. Fairfield has some improvements, consisting of a house, sheds and some grain storage, however at the times relevant to this dispute the farming infrastructure was nowhere near as improved or well-maintained as on Parkvale. That is because the Partnership farmed all of the lands together using the far better and constantly maintained infrastructure on Parkvale.
5. Fairfield has a couple of dams but does not generally have good access to water. Parkvale, on the other hand, has good water access, including a bore located in the handle of the battle-axe-shaped northern paddock marked AE on the diagram at paragraph [20].

The Partnership

1. The parties to the Partnership entered into a written partnership agreement which had effect from 30 June 1989. An unsigned copy of their agreement was in evidence. The parties do not dispute that each of Neil, Janet and Scott had a one-third partnership share until Janet's death in 2012.
2. The terms of the partnership agreement are fairly conventional. It is relevant to note clauses 10, 11 and 12, which governed the use of and improvements to land owned by partners. "10. The lands of all partners or any other lands which may be acquired by any partner during the term of this agreement shall be made available for use by the partnership business and the partnership livestock may be depastured thereon during the term or any other operation or activity relating to the partnership business may be carried on thereon during the term and all rates insurances premiums on fixtures thereon (other than insurance premiums on the contents of any dwelling house or chattels in or about any dwelling house which contents or chattels shall not be the property of the partnership) and all other outgoings in respect of the lands shall be paid by the partnership together with a rental as shall be mutually determined by the partners to be paid by the partnership for its use of the lands of any individual partners or lands owned jointly by any of the partners and the partnership is hereby granted a licence by each partner in respect of land now held by him or her or any land as may hereafter be acquired to use the same for the purposes of the partnership as aforesaid until the termination of the partnership in accordance with the provisions hereof provided always that on any partner ceasing to be a partner whether by giving notice of withdrawal or for any other reason whatsoever that partner shall be entitled to have vacant possession of all lands contributed by him or her to the partnership free from any right of occupation or use thereof by the partnership. 11. In the event of it being necessary or desirable in the opinion of the partners to effect any structural improvements on any of the lands of the partners either presently owned or to be owned in the future for the purpose of increasing the productivity thereof or any other permanent improvements the same may with the consent of the other partners be paid out of the partnership funds but in that case in the event of the partnership being determined after expenditure on those improvements then the said partner or partners owning the lands shall pay into the partnership for subsequent distribution between the partners in accordance with this agreement the actual cost of the improvements. 12. Notwithstanding anything herein contained nothing in this agreement shall be deemed to create any partnership in the lands brought under the provisions of the agreement by any partner."

The parties

1. All of the Macaulay children were active participants in the proceedings.

Neil and Janet

1. There was little evidence of Neil and Janet's life prior to the purchase of Parkvale. Between 1961 and 1970 they had four children, being the parties to these proceedings.
2. In the 1960s the family lived in Cootamundra where Neil owned and operated a butcher shop. Neil also worked in a farming partnership with his father, Alexander Macaulay, and his brother, Brendan Macaulay, which traded under the name AB & N Pastoral Company (the ABN Partnership). In 1969 Neil and Janet purchased "Glenroy", a small farming property on Gundagai Road near Cootamundra where the family subsequently moved. Neil eventually stopped working as a butcher and leased out his shop in town in order to devote himself fully to farming. Over the years both Neil and Janet and the ABN Partnership acquired other farming properties.
3. In about 1982 or 1983, there was a falling out among Alexander, Brendan and Neil. It was unclear what exactly this dispute was about, but it appears to have concerned financial matters. This led to a bitter dissolution of the ABN Partnership.
4. Alexander died in 1985. There was some evidence that Neil thought that the way his father's estate was divided was unfair to him and his other brother Max Macaulay.
5. In about 1987 or 1988 Neil and Janet sold their other properties. They used the proceeds, together with Neil's inheritance from Alexander's estate, to purchase Parkvale. The evidence suggests that Parkvale was purchased outright by Neil and Janet.
6. As mentioned above, Neil, Janet and Scott established the Partnership in 1989 in order to farm Parkvale. A written agreement was prepared by Callan & Luff, Solicitors and Tax Agents. Their invoice dated 15 February 1990 suggests that this agreement was duly executed, however only an unexecuted copy was in evidence.
7. During the 1990s the Partnership experienced commercial success. By leveraging its mix of cropping and livestock farming, it became quite profitable. The family won a string of crop competitions at local and state Royal Agricultural Society shows during this period. In 1994, the partners acquired Miltons as tenants-in-common in equal shares. In 1999, Scott acquired Fairfield. The Partnership conducted its farming business on all three properties but the main homestead and the vast bulk of the farming infrastructure was located on Parkvale.

1. Neil died on 9 January 2021. The schedule of property attached to the grant of probate for Neil's estate identified the following assets. Description Value of share Endeavour Place, Parkes $470,000 Parkvale $6,100,000 Miltons $1,000,000 Furniture and Personal Effects To be ascertained Refund of Accommodation Payment to Niola Nursing Home $327,661.48 CBA Farm Management Deposit Account $195,497.76 CBA Cheque Account $71,739.96 CBA Farm Management Deposit Fixed Term Account $114,846.81 Rabobank Account $35,000 Superannuation $658,973 Investment $61,928.88 Amount owing to deceased by Parkvale Farm Pty Limited atf Parkvale Trust $424,855 Farming Plant and Machinery $130,600 Partnership Debt To be ascertained

Scott

1. Scott was born in 1963.
2. Like his siblings, Scott grew up in Cootamundra and then on the family farm Glenroy. Scott finished school in 1978 after achieving his year 10 school certificate and commenced farming with Neil, his grandfather Alexander and his uncle Brendan under the ABN Partnership.
3. Scott's evidence was that he always wanted to be a career farmer. In 1979 he studied farm technology, wool classing and automotive engineering at Wagga TAFE for 12 months on a full-time basis. In 1981 he obtained a wool classing/sheep classing certification and a mechanical/welding certification from TAFE. He also achieved a chemical usage/poison certification around 1990.
4. Scott worked for the ABN Partnership until around 1985. From 1985 to 1987, Scott moved to Sydney where he worked for CSIRO in animal production relating to sheep and cattle. For a period of time in 1987, he resided with Christina and her husband, and then moved into rented accommodation.
5. In January 1988 Scott travelled to Alberta, Canada to participate in a farm exchange organised through the Internal Agricultural Exchange Association. During this exchange, Neil asked Scott to come and work with him and Janet on Parkvale.
6. In November 1988 Scott returned to Australia and went to live and work with his parents at Parkvale. It was around this time that the three of them established the Partnership. Scott was a partner and worked the farmlands to produce profit for the Partnership, until it was terminated in 2017. I have already referred to the purchase of Miltons and Fairfield.
7. In 1990 Scott married his first wife Ann-Maree. Together they had three children, all of whom are now adults. At the beginning of their marriage, they lived in the shearer's cottage on Parkvale but soon after moved out.
8. Scott and Ann-Maree purchased a house on Victoria Street in Parkes some time in the mid 1990s. They lived at Victoria Street until Scott purchased Fairfield in 1999. They then lived in the homestead on Fairfield until 2003 or 2004, when they moved back into Victoria Street as their eldest child was starting high school.
9. In 2006 a severe drought hit the region. It had a devastating effect on farms and rural families across NSW and the Macaulays were not spared. The drought led to a downturn in the fortunes of the Partnership and Scott was forced to find other work at the mines whilst maintaining his farming responsibilities. It was during this time that Scott and Ann-Maree separated and ultimately divorced.

Christina

1. Christina was born in 1961.
2. Christina assisted her family with farming activities from the time they moved to Glenroy in 1969.
3. Christina completed the HSC at Cootamundra High School in 1978. In 1980 she moved to Sydney and commenced hospital-based nursing training in Blacktown Hospital which she completed in 1983. In 1985, Christina became a qualified midwife. She completed other nursing training and qualifications throughout the 1980s. Christina worked as a community nurse in the Western Sydney Area Health Service from 1987 to 2001.
4. Christina currently resides in Parkes with her husband of 39 years, Arno Kronenberg. Together they have four children, all of whom are now adults.
5. Christina currently works two days each week as a community nurse in Trundle and two days each week as a child and family health nurse at Parkes Hospital.

Craig

1. Craig was born in 1966.
2. He attended Cootamundra High School and St Gregory's College Campbelltown until the end of year 10 in 1982. He then completed a TAFE course in Albury and Cootamundra as a mechanic from 1983 to 1984. During this period Craig worked on Glenroy.
3. From 1984 to 1988 Craig undertook and completed a boilermaker's apprenticeship. From 1988 to 1994 Craig lived between Cootamundra, Brisbane and Parkvale, intermittently working as a boilermaker, for an engineering company, and on the farm.
4. In 1994 Craig moved into the cottage adjacent the homestead on Parkvale. In 1996 he married his current wife Julie Macaulay. In 1998 the couple moved into a house in Parkes where they remain to this day. From 1999 to 2005 Craig worked for Australian Topmaking services performing metal fabrication and maintenance work. From 2005 to 2017 he worked full-time at the North Parkes mine.
5. Craig and Julie have three adult children.

Tracey

1. Tracey was born in 1970.
2. Tracey enjoyed growing up on Glenroy and took advantage of country life. Tracey boarded at Loreto Normanhurst from years 8 to 12 and completed the HSC there in 1988.
3. Tracey lives on a property in Manildra with her husband Phillip Ford. They have three adult children. From 2001 to 2013, they lived in the Allenby Road house in Orange, which they rented at below-market rates from Neil and Janet. Tracey gave evidence that the purchase of their current home in Manildra was facilitated in 2013 by a $100,000 interest-free loan from the Partnership, approved by both Neil and Scott. I note that this loan does not appear in the financial statements for the Partnership that were in evidence. However, there was evidence that it was partially repaid in cash as to $50,000 and that Phillip worked for the Partnership for a time as a means of further repaying the loan.

The relevant wills

1. There was significant dispute as to the circumstances in which Neil and Janet made their various wills. I will return to that issue in the context of my more detailed consideration of the facts. For the moment, it may assist the reader to understand the overall arc of the dispute by noting what each will contained.

January 1988 Wills

1. Neil and Janet made mutual wills in January 1988. Nothing really turns on these wills. Broadly, each was entirely in favour of the other but, should the other predecease them, Scott and Christina were appointed executors and each testator left their entire estate equally to such of their surviving children who attained 18 years.

February 2007 Wills

1. On 12 February 2007, Neil and Janet made mutual wills (the February 2007 Wills) prepared and witnessed by their longtime solicitor, Mr Bill Thompson of Commins Hendricks in Coolamon, that were partly typed and partly handwritten. Only Neil's February 2007 Will was in evidence but I infer that Janet made a will in similar form at about the same time. The sense of urgency implied by the form of these February 2007 Wills was largely due to the fact that Scott was at that point in the throes of separating from his first wife, Ann-Maree, and a property settlement with her was in prospect.
2. Pursuant to the February 2007 Wills, Neil and Janet again left their entire estate to the other in the first instance. However, if the other should predecease them, these wills provided as follows: 1. The four children were appointed executors. 2. Furniture, jewellery and personal effects were left to Christina and Tracey. 3. Craig was to be provided: 1. Fairfield "debt free" as from the next 1 February following the testator's death; 2. Stock (ie, sheep) to the value of $50,000. 1. Scott was to be provided: 1. Parkvale; 2. The testator's two-thirds share of Miltons (on the hypothesis that each testator will have inherited their deceased spouse's one-third share); 3. The testator's interest in the farming business subject to: 1. payment of Partnership debt of approximately $300,000; 2. payment of Fairfield debt of $260,000 and the transfer of Fairfield to Craig; 3. "My son" (presumably Scott) being entitled to the income from the farming business until the next 1 February following the testator's death; 4. Payment of $250,000 to each of the testator's other three children should Scott sell, divorce or enter into a property settlement under the Family Law Act 1975 (Cth) or the De-facto Relationships Act 1984 (NSW) (this clause being expressed to apply until 1 February 2017); 5. Scott was to be responsible for funeral expenses. 1. The rest and residue of the testator's estate, subject to debts, was bequeathed equally to Christina and Tracey. 2. Any daughter living in a house had the option to "take that house as her share". 3. Should Scott and Craig wish to "sell or lease" (which in Scott's case I take to be a reference to Parkvale and Miltons and in Craig's case to Fairfield), then they were required to give the other six month's written notice of settlement or the lease would start on the 1 February (which I take to mean the 1 February following expiration of the six month notice period) subject to: 1. Rent or purchase price being market value. 2. If the above cannot be agreed, then rent or purchase price being determined by a registered valuer. 3. The "opt" (which I take to mean the option to sell or lease) to be agreed (which I take to mean agreed by the recipient of the option) by notice in writing.

October 2007 Wills

1. Neil and Janet contemplated that the somewhat hurried handwritten February 2007 Wills would be typed out and re-executed in due course. This occurred on 15 October 2007. On that day, each of Neil and Janet returned to Mr Thompson's office at Coolamon and executed mutual wills (the October 2007 Wills) that largely reflected the February 2007 Wills, save for an error that assumed significance for the family in later years.
2. The relevant changes appeared in clause 4 of the October 2007 Wills, which dealt with the entitlements of the beneficiaries. Because so much turns on the content of this clause, I will set it out in full: "4. SHOULD my [wife/husband] fail to survive me THEN I LEAVE the whole of my Estate as follows: 4.1 I LEAVE my furniture, jewellery and personal effects equally to my daughters SUBJECT to such items being distributed in accordance with any list that I may leave. 4.2 I LEAVE UNTO my son Craig the following - 4.2.1 The property 'Fairfield' of approximately 600 acres debt free. Craig is to take possession of the property as from the 1st February after the date of my death on the basis that until that date Scott is entitled to farm the farmlands and be entitled to all income after the payment of all expenses. 4.2.2 Stock to the value of $50,000.00. 4.3 I LEAVE UNTO my son Scott the following - 4.3.1 The property 'Parkvale'. 4.3.2 The two thirds my spouse and I own of 'Fairfield'. 4.3.3 Interest in any farming business, capital, loan and beneficiary account, plant and livestock, FMD's but subject to - (a) Payment of the partnership debt which is approximately $300,000.00 as at the date of my Will. (b) Scott transferring at his expense the property known as 'Fairfield' to Craig. (c) the payment of the 'Fairfield' debt of approximately $426,000.00 as at the date of my Will. (d) My son will be entitled to the income from the farming business until the 1st February after the date of my death and then the stock to the value of $50,000.00 is to be delivered to Craig. (e) Should my son Scott sell, divorce or enter into a property settlement under the Family Law Act or De Facto Relationship Act then he is to pay the sum of $250,000.00 to each of my other three children. This clause applies until the 1st February, 2017. (f) My son Scott shall be responsible for funeral and estate expenses. 4.4 I LEAVE the balance of my estate including shares, superannuation, houses subject to any debts owing in relation to the houses equally to my daughters. 4.5 Should any daughter be living in one of the houses then that daughter shall have the option to take the house as part of her share subject to the payment of the debt. 4.6 SHOULD either brother wish to sell or lease then they must give their other brother at least six months written notice and settlement or the commencement of the lease will start on the 1st February after the expiration of that six months notice subject to the following conditions: (a) Rent or purchase price will be market value. (b) If market value cannot be agreed upon then the price will be determined by an independent registered valuer. (c) The option must be accepted by notice in writing."

August 2016 Will

1. By August 2016, Janet had died and Neil was in his eighties. An air of rancour and mistrust had settled upon the Macaulay family. There is a significant body of evidence as to the detail of the disagreements that existed among the Macaulay children, including as between Craig and Scott about what each believed they should inherit.
2. On 26 August 2016, Neil made a new will (the 2016 Will) by which he left the whole of his estate to all four children in equal shares. This 2016 Will was prepared by a new solicitor, Mr Graham Billing of Graham Billing & Co in Orange.
3. This was a significant departure from the scheme of the 2007 wills. From Scott's point of view, it also represented a serious departure from what, according to his evidence, his father had always told him would happen on his death.
4. A prominent aspect of the second and third defendants' evidence was that the 2016 Will represented a division of Neil's estate for which Scott, for a time at least, positively advocated and to which he actually agreed. For reasons I will explain, I do not accept that evidence. Neither Neil nor any other member of the Macaulay family could sincerely have believed that Scott wanted or agreed to a four-way split of Neil's estate, including the farms, in August 2016.
5. As will be seen, Craig believed that this will was an "interim will" designed to stay in place only until Scott turned 55. As I will explain later in these reasons, there is also evidence to suggest that Neil considered this will to be an interim measure.

August 2018 Will

1. Neil's final will was executed in the presence of Mr Billing on 10 August 2018 at Orange. It is this will that has been admitted to probate.
2. As I have already mentioned at [8] above, under the 2018 Will, Scott is to receive the Endeavour Place property but the whole of the rest of Neil's estate, including the entirety of Parkvale and his interest in Miltons, is to go to Christina, Tracey and Craig in equal shares.
3. Also as mentioned above, and as may be expected, Scott contends that this 2018 Will represented a further serious departure from what he had been promised and from the assumption upon which he claims to have relied to his detriment for many years.

The facts in more detail

1. Before addressing the facts in detail, it is appropriate to say a few things about the evidence generally.

Some preliminary observations about the evidence

1. First, the parties led a significant amount of affidavit evidence. The text alone of the affidavits came to over 500 pages. The volume of testamentary evidence exceeded the volume of centrally relevant documents by a considerable margin. The defendants in particular approached the evidence as though the proceedings involved a roving commission of inquiry into all aspects of their relationships with Scott over a 15-year period. Much of this evidence was of only marginal relevance to the actual issues in dispute. It included, for example, evidence about Scott using a partnership credit card in October 2005 to buy two pairs of jeans, the good deals on tires Phillip Ford could get from Curtis Bros in Glebe when he and Tracey were dating, and the circumstances in which Ann-Maree received her car in the property settlement with Scott (including whether it was a black or a silver Commodore).
2. I have not found it necessary to resolve all of the factual disputes between the parties that are the subject of so much back and forth in their sworn affidavits. The parties wisely confined the issues at trial to the real issues in dispute, being: 1. In respect of Scott's claims over Parkvale and Miltons: 1. Whether Neil made the representations (or whether he induced the assumption) for which Scott contends. 2. Whether Scott relied to his detriment on the representations or the assumption such that it was unconscionable for Neil to depart from them. 1. The basis on which the Partnership should now be wound up. This issue involved three principal questions identified at paragraph [14] above. There was originally also a fourth question, namely whether accounts should be taken on a wilful default basis on the footing that Scott had physically assaulted his father, but the defendants did not press this point in final submissions.
3. As will be seen, the resolution of all of these issues involves a detailed consideration of what happened in the long series of meetings with various financial and legal advisers between late 2014 until the middle of 2017, all of which involved discussions about Neil's testamentary intentions. Neil attended most but not all of these meetings. The evidence about these meetings (in particular, how Neil's testamentary intentions evolved over the final years of his life) was also relevant to Scott's alternative claim for provision under s 59 of the Succession Act.

Scott's evidence about the representations

1. Scott's evidence as to the setting in which the relevant representations were made was as follows.
2. For a period of over 25 years, Scott says that he worked with Neil (and with Janet while she was alive) in the operations and management of the Partnership. The central operations of the Partnership, including the homestead, machinery and infrastructure, were located at Parkvale. During this period of over 25 years (but apart from the period from 2006 or 2007 to 2012 where Scott worked evenly between the mines and the farm), Scott worked with Neil almost every day, performing cropping and livestock activities and engaging in all of the planning decisions for the farms. This work involved regular meetings between Neil and Scott (and at times, with agronomists and stock and station agents as well) at the Parkvale homestead to discuss decisions regarding such things as real property purchases, grain and wool sales, blook lines of livestock, purchases and sale of seed and grain, purchases of fertiliser, long-term soil agronomy and purchases of machinery and infrastructure. Over this 25-year period, Scott and Neil also attended meetings with insurers and financial managers to discuss the management of the partnership business.
3. Scott said that it was in this setting that Neil would say to him on a regular basis over this 25-year period that the farms would eventually belong to him.
4. Scott says that the nature of Neil's oral representations up until 2007 was that he would inherit, receive or retain all of the farms, being Parkvale, Miltons and Fairfield. From 2007, however, he says that these representations changed from him ending up with all three farming properties, to him just receiving Parkvale and Miltons. Particular examples of Neil's representations which Scott gave are set out below.
5. In 1994 when Miltons was purchased, Scott says that Neil said to him words to the effect: "[Miltons] is a long-term investment that will ultimately belong to you in the future."
6. In 1999, on the purchase of Fairfield, Scott recalls his father saying to him words to the effect: "This is yours - at the end of the day you are going to get it anyway - so why should I put my name on it."
7. He also recalls another conversation with Neil in the early 2000s in which they discussed changing blood lines of sheep. He says that his father said words to the effect: "Changing the blood lines will maintain and continue the livestock on the farms (being Parkvale, Miltons and Fairfield), and improve our ability to control and manage the farm debt. Changing bloodlines will also ensure the ongoing viability of the farms, which will ultimately go to you in the future."

The making of the February 2007 Wills

1. On 12 February 2007, Neil, Janet, Scott, Craig and Christina travelled to Coolamon, near Cootamundra, to meet with Mr Thompson.
2. The subject of the meeting was succession planning for Neil and Janet. Most likely because of his earlier experience with the acrimonious family dispute involving his own father and brother, Neil wanted his children to participate in his succession planning. He wanted his children to know his testamentary intentions. The immediate impetus for the meeting was that Scott had separated from Ann-Maree and was seeking to resolve a property dispute with her under the Family Law Act.
3. The fact that Janet also attended the meeting and made a will in the same terms as Neil, and that she did likewise in October of the same year, demonstrates that she also wanted the children to know her testamentary intentions. It would have been no comfort to Neil, who particularly cared about this issue, if the children knew the content of Neil's will but did not know the content of Janet's. There is a fairly strong inference to be drawn that Neil and Janet wanted the content of their February 2007 Wills as well as their later October 2007 Wills to be clearly understood and, ideally, agreed to by their children.
4. I have already described the overall scheme of the February 2007 Wills. However, it is important to note that there was an alternative testamentary scheme discussed amongst the family in the 12 February meeting so far as the farming properties were concerned. That other testamentary scheme, which was described as "Option 1" ("Option 2" being the scheme ultimately adopted) involved the properties being divided as follows: 1. Scott would inherit Parkvale plus two-thirds of the plant and livestock and assume two-thirds of the partnership debt on condition that he transfer clear title to Fairfield and his one-third interest in Miltons to Craig. 2. Craig would inherit (or receive from Scott) Fairfield plus Miltons, as well as one-third of the plant and livestock on condition that he assume one-third of the partnership debt.
5. Option 1 therefore involved Craig receiving around 1,065 acres of land, being around one-third of the combined farmlands, but becoming a one-third partner in the Partnership and assuming a corresponding amount of debt. The partnership debt at the time seems to have been about $300,000. The total value of plant and livestock at the time (at least for the purposes of the discussion in February 2007) seems to have been about $450,000.

April 2007 - property settlement; alleged assault

1. On about 16 April 2007, Scott and Ann-Maree reached a property settlement.
2. A theme running through the evidence was that the 2007 wills had somehow been orchestrated so as to give the appearance that Scott's financial position was worse than it really was, in order to improve his prospects of obtaining a favourable property settlement with Ann-Maree.
3. I am not able to identify any evidence that seriously supports this notion. The true position was far more mundane: the prospect of a property settlement with Ann-Maree was a reason why Neil and Janet felt it important to identify clearly what Scott could expect to receive on his parents' death, as well as the property he would be required to transfer to Craig. As I will explain, Scott's position was somewhat worse under the 2007 wills compared to what he had originally been promised, but that is a matter about which Scott has never complained and which, in any event, likely benefits the defendants.
4. At around this time, Christina visited Parkvale and claims to have witnessed Scott assaulting Neil. According to Christina, she witnessed Scott launch himself at Neil and punch him "around the chest and head" in an unprovoked attack. She says that Janet came out and broke them up. Scott was briefly cross-examined about this incident but denied that it occurred. He said that he did not assault his father on this or any other occasion. Christina was not asked about this issue in cross-examination.
5. It was unclear whether I am asked to find that the various alleged assaults, including this alleged assault, actually occurred. Despite the prominence which the alleged assaults assumed in the defendants' evidence, there was a distinct retreat in final submissions from the contention that I should find that each assault occurred. They instead submitted in final written submissions that "when viewed as a whole, it ought be accepted that Scott had assaulted his father and behaved aggressively towards him over a period of time…". In final oral submissions made very shortly after that written submission, the second and third defendants retreated even further. They submitted that the only fact I really needed to find in relation to the assaults (to the extent that it was even relevant) was that Neil had a state of mind that he had been assaulted and therefore the defendants were justified in believing that the assaults had occurred, because Neil had told them so. I am not entirely sure what I was finally asked to find in relation to the assaults. I am however not prepared to make a global or overall assessment of the evidence about the assaults along the rather unclear lines identified by the defendants. An allegation of assault is a serious matter. The appropriate course, in the circumstances, is for me to make findings about each incident according to the evidence proffered in relation to it.

The October 2007 Wills

1. The typed copies of the February 2007 Wills attached to Mr Thompson's letter of 19 February contained the error to which I have already referred. Despite what was contained in the handwritten will, clause 4.3.2 of the typed version mistakenly referred to Fairfield instead of Miltons. However, nobody appears to have noticed because on 15 October 2007, Neil and Janet returned to Coolamon to execute new wills which contained that same error. They also executed powers of attorney and appointed enduring guardians, being each other and their children.
2. It appears that Mr Thompson's suggestion of circulating the February 2007 Wills for consideration by the children was taken up, because both Christina and Tracey recall seeing them. However, neither Scott nor Craig could recall seeing them at the time.
3. The family again travelled to Coolamon to meet with Mr Thompson in October 2007. It is unclear whether Tracey travelled with them, but nothing turns on this. She appears to have signed an acceptance of her appointment as attorney on 9 April 2007, although this is difficult to reconcile with the date next to her signature on the appointment of enduring guardian being 15 October 2007 (the same date next to Christina, Craig and Scott's signatures on both appointments). In any event, I infer that at least Christina, Craig and Scott were in attendance on 15 October and that, as previously, there was discussion among them as to the content of Neil and Janet's wills. I also infer that, as previously, Neil and Janet wanted their testamentary wishes to be known and understood by their children. I infer that this was important for them and that they understood it to be important for their children, particularly Scott and Craig, who Neil and Janet at that stage expected to inherit the farms.

Scott takes work off the farm

1. In late 2006 or early 2007, Scott took a job with Pybar Contractors at the North Parkes Mines. He remained employed there until 2012. He says this was due to the drought and the ensuing downturn in the Partnership's finances, which meant that he was earning only minimal income as a partner.
2. Scott's sisters refute the suggestion that economic circumstances forced Scott to take on outside work. Whilst they both accept that there was a severe drought that affected the farming operations, they contend that Neil and Janet encouraged Scott to get another job as a way of assisting him with personal issues caused by his failing marriage.
3. I do not accept that that is an appropriate way to characterise what occurred. The Partnership did suffer a significant drop in income during the period that preceded Scott working in the mines. The total income for the farm in the 2006 financial year was $601,454.10. In the 2007 financial year this dropped to $407,948.53. In the same years, the Partnership went from making a pre-tax profit of $106,019.74 to making a loss of $3,560.48. Scott's total drawings from the Partnership decreased accordingly. In the 2006 financial year, he drew $64,738.72; in the next year his drawings dropped to $36,413.83 and in the year after they dropped further to $15,100.56.
4. By far the most likely explanation for Scott taking work off the farm is that economic circumstances forced him to do so. Scott had been a farmer all his working life. Following his separation, his personal financial circumstances were strained, as were the circumstances affecting the Partnership generally. It may well be that Neil and Janet also believed it would be good for Scott to work elsewhere in those circumstances. Whatever the motivation, I do not regard the fact that Scott took work off the farm as signalling a general retreat from farming.
5. At the mines, Scott worked an "even" roster, meaning that the number of days he spent working on the mines was equal to the number of days he had off. He worked 12-hour days, either as day shifts or night shifts.
6. Scott says that on his days off from the mine he devoted himself entirely to his work on the farm. In cross-examination Scott did admit that he did have some days off work altogether from time to time but maintained that he generally worked evenly between the mines and the farm during the period in which he was employed at the mines.

Rabobank refinancing in 2010

1. In late 2010 or early 2011, Scott, Neil and Janet came to the joint decision to refinance the various facilities they had with CBA. Some of these facilities were for personal loans and others were for partnership borrowings. Neil and Janet had a loan facility with a balance of $420,000, which had been taken out to purchase the Endeavour Place property. Scott had a loan with CBA for funds used in purchasing Fairfield. The Partnership also owed money to CBA. The 2010 statements show this liability differently but at least in 2006 and 2008, the accounts showed two separate liabilities owing to CBA, one for an "overdraft" facility and another entitled "bank finance".
2. Rabobank offered an all-in-one debt facility which provided an interest only loan with no compulsion to continually pay down the debt. Mr Haggarty, the banker at Rabobank who assisted with the refinance, gave evidence in the proceedings. He said that Neil and Scott told him that they were not happy with the service they were receiving at CBA. He remembers that it was their intention to pay down their debt as much as possible to increase their equity in order to buy a new neighbouring property. Scott says they were attracted by the opportunity to consolidate the debt into one account.
3. Whatever their motivation, on 27 January 2011, Neil, Janet and Scott signed an acceptance and acknowledgment with Rabobank to facilitate the refinancing. An aspect of the arrangement was that Parkvale and Fairfield were mortgaged to Rabobank to secure the facility.
4. As part of the Rabobank refinancing arrangements, the Partnership took over the personal debts of Neil, Janet and Scott, namely the debts used to purchase Endeavour Place and Fairfield. In the partnership accounts these debts were incorporated into the Rabobank facility. Simultaneously, corresponding loans from the Partnership to Scott, representing the value of his old CBA loan, and to Neil and Janet, representing the value of their old CBA loan, were recognised as assets of the Partnership. Accordingly, the partnership accounts for 2011 records non-current receivable loans named "Loan: Scott Macaulay re: Fairfield" in the amount of $453,288.11 (being the Fairfield debt) and "Loan: NJ & JT Macaulay (Refinance Loan)" in the amount of $420,000 (representing the Endeavour Place debt). The Fairfield debt remained on the financial statements of the Partnership in subsequent years. The Endeavour Place debt was apparently repaid by journal entry in 2014/2015, being "set off" against Neil and Janet's partners' funds which, at the relevant time, had a significant credit balance. For this reason, the Endeavour Place debt no longer appeared in the financial accounts from the 2015 financial year onwards.

Janet dies

1. Janet died on 18 August 2012.
2. On 14 August 2013, probate in relation to Janet's 15 October 2007 Will was granted to Neil as executor of her estate. Janet left her whole estate to Neil. The inventory of property attached to the grant of probate has been summarised at [43] above. There seem to have been no immediate steps to administer Janet's estate. For the three years following her death, it appears that all parties treated Neil as executor of her estate as continuing to own her interest in the Partnership.

Mr Twomey suggests that the October 2007 Will be revisited

1. Mr Twomey was Neil's (and the Partnership's) long-term accountant. He had acted for Neil, in one capacity or another, over several decades. Neil had engaged the firm at which Mr Twomey later worked from as far back as the early 1960s.
2. On 22 December 2014, Mr Twomey wrote to Mr Billing, the solicitor who had recently begun to act for Neil, in relation to Neil's October 2007 Will. The letter summarised a discussion that Mr Twomey had had with Neil and Scott on 16 December 2014. As with almost everything else, the parties were in dispute as to why Mr Twomey was looking at the October 2007 Will in the first place. It is however quite clear that, as Scott pointed out, the impetus for the discussion with Mr Twomey was Neil's health. He was by this stage 79 years old and had been unwell. It is hardly surprising that Neil would ask his long-term trusted adviser to review his October 2007 Will. It would be equally unsurprising if Mr Twomey had instigated the review for the very same reasons.
3. Mr Twomey's letter of 22 December 2014 raised a number of fairly straightforward issues concerning the October 2007 Will. For example, he pointed out that clause 4.2.2, which provided for Craig to receive stock to the value of $50,000, should probably be revisited to provide that Craig would be given a percentage of stock instead. He pointed out that the reference to Fairfield in clause 4.3.2 was a mistake and should instead be to Miltons. Mr Twomey also noted that the acreage to be held by the two brothers (assuming the transfer of Fairfield to Craig, as was envisioned by the October 2007 Will) would be approximately 80% by Scott and 20% by Craig. It is, no doubt, for this reason that he suggested that clause 4.2.2 should refer to 20% of stock, as opposed to a dollar value.
4. I am satisfied that Neil's testamentary wishes as at December 2014 had not materially changed since 2007. It is apparent from the terms of the 22 December letter that Neil still wished for his sons to end up owning the farms in the same manner as had been envisioned in 2007. In reaching this conclusion, I have had particular regard to the fact that Mr Twomey gave evidence in the proceedings and was cross-examined. He was a thoughtful witness who expressed himself with care. There were many documents prepared by him in evidence, including file notes and correspondence. In all of that material, it is apparent that he paid careful attention to Neil's instructions and gave serious consideration to his interests, both in his individual capacity and as a partner in the Partnership. His attempts to resolve the present dispute, which attempts are evident from the correspondence, were level-headed and fair-minded. The general antipathy shown towards him by the defendants, particularly by Craig who perceived him to be acting in Scott's interest, was unfounded. I have no doubt that his 22 December 2014 letter faithfully reflects what Mr Twomey was instructed as to Neil's testamentary wishes at that point.

The June 2015 meeting

1. On 11 June 2015, there was a meeting in Orange attended by Neil, Scott, Christina, Craig and Tracey, together with Mr Twomey and Mr Billing. The meeting was arranged by Mr Twomey, apparently at the request of Scott. Prior to the meeting, Mr Twomey sent an email explaining that the purpose of the meeting would be "to consider the options going forward after 1 July 2015" and attaching a note setting out some issues concerning the distribution of partnership income after 1 July 2015. He referred to "discussions" (which was likely a reference to discussions with Neil and Scott as well as with Mr Nathan Robinson, who was the accountant at Twomeys who was primarily responsible for preparing the partnership accounts) about reconstituting the Partnership. It is relevant to note the following parts of the note: "NOTES RE MEETING WITH NATHAN TO DISCUSS MACAULAYS CHANGES AT 1 JULY 2015 Now that we do not have the opportunity to distribute the partnership income 3 ways after 1 July 2015 we need to reassess how the farming operations should continue after this date. Our discussions centred on a reconstitution [of] the partner[ship] Parkvale Pastoral Co. [P]resently the partners are: Neil Macaulay 1/3 Estate on Jan Macaulay 1/3 Scott Macaulay 1/3 The [s]hare of the partnership of the late Jan Macaulay transfers to Neil her spouse. If no alterations are made to the partnership, income will split 2/3 Neil and 1/3 Scott. This will resolve in unequal profit distribution for both taxation and personal reasons. With this in mind we are proposing that consideration be given to the partnership being restructured from 1 July 2015. We will have Scott 50% Neil's Family Trust 50%. The structure of the trust we are recommending is for Neil to be the trustee and the beneficiaries are himself plus his children and their issue. Also as beneficiaries we should include trusts or companies which are controlled by any [beneficiaries]. The partnership should run for a period of time and we recommend that it does so for 1 year. Then the Parkvale Pastoral Co can be [taken over] by the family trust and operate as a family trust in the farming business..."
2. Mr Twomey was correct to raise his concerns about the Partnership. Janet had died on 18 August 2012 and it seems partnership income had, for the following three years, been shared equally among Neil, Scott and Janet's estate. However, if Janet's partnership interest had not been dealt with by the 2016 financial year, the whole of the share of partnership income held by Janet's estate would begin to attract tax at the highest marginal rate: see s 14 of the Income Tax Rates Act 1986 (Cth).

The 30 September 2015 meeting

1. Neil and Scott met with Mr Twomey again on 30 September. Mr Twomey's notes of this meeting deal, in part, with the question of the Partnership. I will set out that part of his notes in its proper context later in these reasons. In relation to Neil's will, his notes include the following: "Neil's Will and Land Transfers It was decided that we should look at the situation of land transferred under Neil's Will. Presently the Will is very confusing and we have had discussions with all parties and Graham Billing (a Solicitor from Orange) in this regard. After discussing all matters with Scott and Neil today, it has been decided that we do a few essential things: 1. A new Will needs to be prepared, and in that Will, Neil should ensure that Craig receives approximately 800 acres of land for his benefit upon his passing. With this in mind it is envisaged that the property of Fairfield, plus the 3 paddocks marked U, AE and Q on the rough map, will be the property that will be transferred. This totals 802 acres. It was intended that perhaps this could be done prior to Neil's passing by intergenerational transfer, however this does not meet with the satisfaction of Neil and Scott. At this point the debt of the partnership is such that they require full usage of all land owned by Neil and Scott by Parkvale Pastoral Co for income producing in order to extinguish the partnership debt with Rabobank. Neil feels that once he passes it will go to Craig accordingly. If upon review of his will in 3 years time, the debt is low or extinguished then an inter-generational transfer will be considered. 2. In the Will it is envisaged that Neil will pass the property known as Parkvale to Scott on the understanding that Scott will transfer the property of Fairfield to Craig. Also the 3 paddocks mentioned above will be transferred to Craig. We still require a clause in the Will to permit the finalization of any harvest to be the change over time for the transfer of such property. 3. I need to look at the value of all the land, plant, equipment and livestock, taking into account the debt to Rabobank. This is to determine exactly how will the distribution upon Neil's death impact on the transfer and the value of the proportions that will go to Craig and what proportions will stay and be transferred to Scott. 4. With this calculation Neil & Scott need to then sit down with Craig to have agreement before a new will [will] be prepared. I feel we do not need to contact the Solicitor until a basis of agreement is found. 5. No changes will be made to the entitlement of Christina or Trac[e]y. 6. The executors will be Christina and Scott."

November 2015 - alleged assault

1. By the second half of 2015, Scott and Craig were well and truly divided on the question of what Neil should do about his will. The topic became a sore point that was rehashed in discussions many times over. At no point in those discussions did Scott suggest that he himself should inherit anything more than what was provided for him under Neil's October 2007 Will. Craig, on the other hand, was adamant that he should inherit considerably more than what was provided for him under Neil's October 2007 Will and that this should be at Scott's expense (ie, that Scott should inherit less in order to allow Craig to inherit more).
2. Christina, Tracey and Craig had also developed a deep antipathy towards Scott by this time. Not all of this was due to the situation regarding Neil's will. In Tracey's case, for example, she stopped talking to Scott in about July 2015 when Scott told her that he did not want her husband, Phillip, continuing to do work on Parkvale. As mentioned above at [68], Phillip had been doing work there in partial repayment of the funds which the partners had lent to them for their Manildra property. Christina and Tracey may have been protective towards their father, which is understandable, and may have seen Scott's response to Craig's demands as being somewhat truculent and uncompromising. They would have witnessed Neil becoming upset at the impasse between Craig and Scott and, in all likelihood, lay a large part of the blame at Scott's feet.
3. It is relevant to note two incidents that are alleged to have occurred at around this time.
4. On 5 November 2015, there was an altercation at Parkvale between Neil and Scott while they were transferring grain from one silo to another with an augur and a tractor. The Partnership had purchased a new header and Scott wanted to sell the old one. They had a discussion about this, during which Neil said that it was "his" header and that he did not want to sell it. Scott said that it was property of the Partnership and that he wanted to sell it. Tensions must have been high, because several minutes later Neil approached Scott from behind and struck him hard with a galvanised steel pipe used for fencing. Scott was working heavy machinery at the time and had not heard his father approaching. The blow caused fairly significant bruising which lasted over many days. The defendants did not dispute that Neil assaulted Scott on 5 November, nor did they dispute the photographic evidence as to the extent of the injuries he suffered.

The February 2016 meeting and the 2016 Will

1. On 1 February 2016, all of the Macaulays met with Mr Twomey in Young. The purpose of the meeting was to continue the discussions about what Neil's will should provide and, in particular, to "hear Craig Macaulay's concerns as to the amount of land that he felt his father had promised him", as Mr Twomey later described it in correspondence to Mr Billing.
2. It is important to bear in mind the incorrect and rather unfortunate advice that had by this stage been given to Neil by Mr Billing, which was that Neil could not leave property to Scott on condition that he transfer Fairfield to Craig. As I explained earlier, this meant that Neil felt that he had no choice but to continue down the path of having increasingly unproductive, acrimonious discussions with the children in the hope of reaching an agreement. But, in fairness to Craig, it also meant that he perceived himself to be in a quite precarious position so far as Neil's October 2007 Will was concerned. If this advice was correct (and Craig had no reason to think otherwise) it meant that if Neil died without making a new will, Craig might receive nothing. This circumstance no doubt explains Craig's doggedness in pursuing his own interests at about this time.
3. Each of the parties, and Mr Twomey, gave evidence about the 1 February 2016 meeting. Save for Christina and Tracey, whose accounts of how Scott supposedly suggested a four-way split of Neil's estate (and Neil's purported agreement to this course of action) were similar, everyone had a different recollection as to what occurred.
4. Before addressing the matters of disagreement, it is important to note the starting position adopted by Craig at this meeting, which was that he should inherit 1,065 acres of Parkvale, including all of the central areas containing the homestead and the major farming infrastructure, without any associated debt. How and why he considered this to be a fair, let alone practicable, outcome was not explained. Unsurprisingly, Scott did not agree that this would be appropriate. Craig says that it is what his father wanted to do, but I seriously doubt that. As I have already explained, Neil had by this stage warmed to the idea of Craig somehow receiving Fairfield together with some top paddocks of Parkvale. However, there is nothing in any other discussions or correspondence (for example, with Mr Twomey or Mr Billing) to suggest that Neil was at any stage willing to split Parkvale up in the way advanced by Craig at this meeting.

16 September 2016 - alleged assault

1. Christina says that on 16 September 2016, she visited Neil at his home in Parkes and he told her that: "Scott pushed me down again today and dragged me along the ground wanting to know what was in my Will. He always wants to know what's in my will and is telling me what to do with it."
2. Christina called Scott, who flatly denied that any such thing had occurred. He explained that Neil had fallen in the sheep yard and that he had grabbed Neil by the arms.
3. The basis on which I am asked to find that Scott assaulted Neil on 16 September 2016 is quite unclear to me. Scott flatly denied that it occurred. There is no other evidence that it did occur, save for the evidence of Christina and Tracey that Neil said it occurred, although each such account of what Neil told them was slightly different. As my conclusions about the November 2015 incident already demonstrate, Neil was entirely capable of making false allegations of assault against Scott.
4. In these circumstances I am not persuaded that this assault occurred.

31 October 2016 - alleged assault

1. On 31 October, Neil visited Craig and told him that Scott had thrown him down in the sheep yards. Neil apparently said that this occurred in the context of a "stranger" arriving to look at the old John Deere 9500 header which by now was for sale.
2. I am unwilling to accept that Scott assaulted Neil on 31 October 2016, as Craig suggests. Scott gave credible evidence as to what occurred on this occasion and, so far as I can tell, was not challenged on it in cross-examination. He explained that his father had agreed to list the header for sale and that someone had arrived to inspect it. When Neil found out, he became angry and hostile. He (Neil) picked up a loose metal bar and threatened Scott, much as he had done in the previous November. Scott got out of his way and there was no physical contact. Scott avoided him and got on with his work. Scott says that Neil "scampered" away, got into his ute and left. Scott's diary records: "…The day didn't end well. Dad not trusting my judgment."
3. I accept Scott's account. I was not given any serious reason to do otherwise. Bolstering my conclusion even further, as well as my inferences above that Neil was perfectly capable of making up false accusations in respect of these assaults, Neil gave a vastly different explanation for the injuries to Dr Whitmill on 15 November, being that he "fell and hit [his] head trying to avoid ram in race…".

4 February 2017 - alleged assault

1. On 4 February 2017, Neil visited Craig in a distressed state with a laceration and swelling on his right cheek. According to Craig, Neil said that Scott had punched him in the face and grabbed him forcefully by the left arm and clothing.
2. I am, yet again, unable to accept that Scott assaulted Neil in the manner reported by Craig.
3. Scott's evidence in relation to this incident was as follows: "105. I recall on this day that there were dead crows in an open 20,000 gallon water tank at Fairfield. I believe that Dad was cranky with me over the dead crows in the water tank, and perhaps over leaving a gate [open] as well, even though I recall that Craig was with Dad the previous day when the gate was left open while Craig was gathering firewood, which allowed the rams in with the maiden ewes, something which would never happen. I remember Dad mistakenly blamed me and said to me words to the effect of: 'You should know better.' 106. Dad then fronted up to me and was striking me around my chest and stomach with his fists. Dad then swung himself off balance. I remember trying to hug him in defence to stop him swinging. I did not see any bruising or laceration on his face."
4. As appears from this evidence, things were clearly not good between Scott and his father. But Scott was not challenged on his account of what occurred on this occasion.
5. There seems to be no doubt that there was a confrontation of some kind and that the two made physical contact. Scott admits as much. But he says, and I accept, that he did not strike his father or grab him forcefully by the left arm or clothing. Scott's diary note for that day fairly describes what happened: "Dad's switch went off again over? possibly opening gates - crow in tank at Fairfield? Who knows. I defended another barrage of [blows] Dad falls over. Tells me I'm finished get off. He goes."

March 2017 - Macaulay family discussions

1. On 6 March 2017, the Macaulay children all met on the verandah of the Parkvale homestead. One of the topics of discussion seems to have been whether Neil was getting too old to be continuing on the farm and whether he should move into a nursing home.
2. I gather from the second and third defendants' affidavit evidence as well as Scott's diary entry that the topic of Neil's will was also brought up at this meeting: "Family meeting 4.30pm @ Farm… Meeting with Family was ? Sell down liquid assets… of which Scott has ½ pay back debt ½ go my way + Fairfield and 130 Ac Miltons. + when Dad deceased Scott ¼ of Total Assets (All agreed Chris Tracey + Craig as we as I. Craig would take this to Dad."
3. This diary entry is somewhat indecipherable: it suggests that Scott may have agreed to a four-way split of assets at this meeting. However, even the second and third defendants' evidence does not go as far as to say that Scott agreed to a four-way split. In fact, Craig's position was that he believed that Neil had reverted to Option 1 by the time of this meeting. I find that there was no general agreement about the topic of Neil's will on this occasion.
4. More evidence that Scott did not agree to a four-way split is that the following day, Scott spoke to his father to again try to discern what was happening with his will. He records as follows in his diary: "Spoke to Dad Re above. He told me that it is not what he wanted but would go ahead. Until I said that it is the only way to go because his intentions have never been signed off on. I told him coming from Craig + Chris that a 4 way split is happening. Dad has denied it and I told him that I would go ahead until he writes down his intentions & signs off. That is why I cannot go forward farming until it is in writing. He has the intentions to see Geoff Twomey for his intention to be written down and signed off so I (Scott) [have] foundation to continue on farming without [being] white anted…"
5. I particularly note Scott's reference to being unable to go ahead with farming without some certainty as to what his inheritance would be.

June 2017 - Neil sees Mr McGroder

1. By June 2017, Scott had sought his own legal advice to determine where he stood. Mr Twomey and Mr Eris Gleeson, solicitor, of Gordon Garling Moffitt in Young had by this point suggested that it might be appropriate in the circumstances for Neil to try to obtain some independent advice about his will "for it to be fair". This was sound advice in circumstances where there appeared to be a significant disconnect between what Neil was saying to Scott about his testamentary intentions and what Scott was hearing from his siblings, who were closely involved in communications with Mr Billing.
2. Neil, it seems, had come to the same conclusion. Scott's contention that Neil made the appointment to see Mr Dennis McGroder, a solicitor of McGroders Solicitors & Conveyancers in Forbes, on 29 June 2017 was not challenged on cross-examination.
3. Scott drove Neil to the appointment, but did not attend with him. Mr McGroder took careful and extensive notes of the meeting. Mr McGroder also gave evidence in the proceedings and was cross-examined. He was considered and thoughtful.
4. Mr McGroder's notes show that he had a lengthy conference with Neil, during which Neil gave him a detailed run-down of his assets and liabilities, the history of the Partnership, and a range of other matters relevant to making a new will. He gave him names, dates, acreages and values. Neil told Mr McGroder that he had never made a will but that he wanted to make a will as follows: 1. Executors and trustees were to be Christina and Scott. 2. Scott was to receive 2,000 acres of Parkvale, on condition that he transfer Fairfield to Craig. 3. Craig was to receive 330 acres at the northern end of Parkvale. These acreages seem a little imprecise, but Mr McGroder twice noted that Craig was to get 1,000 acres unencumbered. 4. His interest in the Partnership was to go to Scott. 5. The Orange house was to go to Tracey. 6. The Parkes house was to go to Christina. 7. The residue was to be divided among the four children.
5. Mr McGroder also made notes on a paddock plan at the same time. His notes on that paddock plan suggest that Neil wanted paddocks AE, Q, U and V to go to Craig. They also suggest that Miltons would go to Scott and that Scott would be expected to give Fairfield to Craig.
6. Mr McGroder also noted that Neil's personal solicitor had been Mr Billing. He handwrote a note in red ink whereby Neil authorised and instructed Mr Billing to transfer his file to Mr McGroder, which Neil signed.

30 July 2017 - the ute incident

1. On 30 July 2017, an incident occurred involving Scott and Neil that was of lasting significance for the parties.
2. According to Scott's first affidavit: "192. The background to this matter is that on Sunday 30 July 2017. I was at Parkvale. John Simpson (our neighbour) called me on my mobile and said words to the effect of: 'Your Dad had broken down in his ute in the laneway. He's walked a kilometre to my place. It looks like he is out of fuel. I'll come down and put 20 litres of fuel in it.' 193. Not long after, John spoke to me again and said: 'I have put 20 litres of fuel in it and tried to start it. But it looks like it is a transmission problem'. 194. I then drove down to John Simpson's place, and towed the ute back to Parkvale with Dad. After this, I took Dad back to Endeavour Place (where Dad was living at the time). 195. As I was coming into town and I said to Dad: 'We need to all sit down and talk about your plans with Parkvale, myself and the others, as it is all coming to a head with Tracey and Craig. Your memory is failing.'"
3. However, according to Tracey, Neil gave her the following account of the incident: "On my way back to 'Parkvale' in Kamandra Lane I broke down and started walking and I went in to the first property and they called Scott and he came and picked me up and we towed the ute back to Parkvale. Scott then drove me home. On the way back to my place at Endeavour Place Scott was asking me about my Will he is always at me about my Will and wanting me to change it to suit him. When we pulled up in the driveway at Endeavour Place Scott became very angry and grabbed me and punched me in the ear in the ute and then Scott put his leg over the gear stick and kicked/pushed me out of the ute with his foot and I landed hard on the concrete. Scott then drove off and left me there."
4. Neil had a cut to his right ear and reported pain in both his left and right hips. Tracey encouraged him to report the incident to the police, which he agreed to do. He was then accompanied to the Parkes police station by Christina. Neil made a formal complaint and was interviewed by Constable Jayden Hudson.
5. A transcript of the interview was in evidence. Neil said: "Well we were driving back from out at the farm. And um he started to talk about the other three, ah it was Christina, Tracey and Craig. That's the other three children. And he reckoned that you know that they didn't deserve anything, and I said 'Well that's not, that's not gonna happen'. And um, then one thing led to another. He said 'I'm doing all the bloody work and he said "they're going to benefit out of it"'. And I said 'well OK, that's the way it's going to be'. And I said 'You will come out of it better than them because you'll get the farm'. And ah one thing led to another he said 'Oh they're getting too much' or something, and I said 'Well, not in my book'. And that's when he pushed me out of the bloody car, onto the onto the driveway. So I just closed the door and went inside but I hit the ground on this side of my ear hit the thing and I knew it was bleeding, but anyway he'd driven off, so I thought well I mightn't see him tomorrow."

Neil terminates the Partnership

1. On 1 September 2017, Neil, Craig and Tracey attended a meeting with Mr Billing. Mr Billing had prepared a notice of termination of the Partnership which Neil signed. Craig took charge of serving the notice of termination on Scott, which he did on 4 September 2017.
2. In view of the AVO, there was no realistic way in which the Partnership could continue in any event, because it had the effect of preventing Scott from attending Parkvale.
3. The charges against Scott were not heard until late June or early July 2018. Even after Scott was acquitted, the AVO continued for a further three months.
4. The events of 30 July 2017 marked the end of Scott's association with Parkvale. He has been entirely ostracised from the family ever since. The locks to Parkvale were changed in about January or February 2018. He owns Fairfield, but either Neil or Scott's siblings cut off the water supply from Parkvale. Since about 2018, he has leased Fairfield to Mr Green, who has farmed it in conjunction with his own adjoining property.
5. Although there was very little evidence about it, it seems that following the dissolution of the Partnership, the Parkvale Trust and its corporate trustee Parkvale Farm Pty Limited were established to conduct the farming operations going forward. No evidence was adduced as to who currently controls the trust. The Parkvale Trust is noted as owing funds to Neil's estate in the inventory of property that is set out above at [44].

The 2018 Will

1. From the AVO incident onwards, the other members of the Macaulay family seem to have communicated with Scott mainly through lawyers. On the evidence before me, the main topic of correspondence after Scott was served with the notice of termination was the question of how to wind up the Partnership. The question of inheritance largely fell by the wayside at this point.
2. On 2 August 2018, Mr Gleeson (on behalf of Scott) put his position in a letter to Graham Billing & Co that Scott and Neil had agreed to be equal partners following Janet's death.
3. The next day, Neil signed an informal will in Mr Blackwell's presence that someone, quite possibly Mr Blackwell, annotated with the words: "I HAVE READ THE ABOVE. THESE ARE MY TESTAMENTARY WISH[E]S. I WILL RETURN NEXT WEEK TO SEE MR BILLING TO SIGN MY WILL IN THESE TERMS. I SIGN THIS DOCUMENT IN CASE SOMETHING HAPPENS TO ME BEFOREHAND AS AN INFORMAL WILL."
4. The document referred to Neil's existing 2016 Will and then stated that Neil wanted to change his will along the lines of the 2018 Will that came to be executed on 10 August. It emerged in cross-examination that the document signed on 3 August had been typed up by Tracey.
5. The informal will recited that Neil and Janet had "funded" Fairfield; that Scott had been trying to get Neil to "change" his will to "favour him"; and that Scott had tried to get Neil to sign a document that had not "been written by [Neil] (handwritten in red pen)", referring to the authority that Neil signed in Mr McGroder's presence. All of these things were untrue. The document was a jumble of what seem by this stage to have become, for the defendants, convenient truths about what the dispute as to Neil's estate had actually been about and what Scott's position had actually been.
6. As I have sought to explain, Scott's position was never that Neil should change his will to "favour" him. It was that Neil should not make a new will that significantly detracted from what Scott would have received under the October 2007 Will. Even to say that Scott's position was that Neil should "change" his 2016 Will to "favour" Scott is a fairly significant misdescription of what actually occurred. Even after he had made the 2016 Will, Neil continued to tell Scott that his will would not provide for a four-way split. He continued to tell him that he wanted to leave his estate to Scott just as had been reflected in the October 2007 Will, save that Craig should also receive some top paddocks of Parkvale. From Scott's point of view, he was not seeking to have Neil "change" his will to "favour" him. He was seeking to ensure that Neil made a will that accorded with what he had been promised since 2007.

Scott's amendment application in relation to the 2018 Will

1. At the end of all of the evidence and just before closing submissions were to commence, it became clear that Craig wanted to say more about the circumstances in which the 2018 Will was made than had been said in his affidavits up to that date (23 August 2024). His affidavits, I note, had been prepared during the time he was represented in these proceedings by Mr Billing.
2. Rather than receiving his evidence as to this matter from the bar table, I gave him leave to prepare and rely on an affidavit in which he set out his evidence as to the circumstances in which the 2018 Will had been made. That affidavit was dated 24 August 2024 and was filed in court and read without objection on 26 August. Craig was not cross-examined on the affidavit.
3. Craig's evidence as to this matter was brief. He described driving his father to an appointment to see Mr Billing on 10 August 2018 and that he believed the purpose of the meeting was to "start drafting a new [w]ill". In addition to Mr Billing and Neil, Christina and Tracey were also present. Mr Blackwell was present near the end. Craig said that Mr Billing produced printed copies of the unsigned 10 August 2018 Will. He said that he was "bewildered" because this was the first he knew of such a will or of the informal will signed by Neil on 3 August. He said that he had only limited time to review the document and that it was rushed.
4. On the heels of that evidence, Scott made an application to amend his claim to contend that the making of the 2018 Will was attended by suspicious circumstances and that the defendants should be put to proof of the circumstances in which that will had been made, including that Neil had capacity to make it and that Neil made it of his own volition.
5. I rejected that application at the time it was made. My reasons for doing so were threefold. First, the plaintiff's application as I (and the second and third defendants) understood it was not strictly to amend his claim but to have time to consider and then bring in a form of amended pleading which by that point had not yet been formulated. In the context of an amendment made so late in the trial - the evidence had closed and the parties were about to begin their closing submissions - it would have been inappropriate to make orders which threw open the issues other than in a carefully delineated way and by reference to a specific proposed amendment.

Estoppel

1. Scott's principal case is one of proprietary estoppel by encouragement, being that category of equitable estoppel derived from the decision of Dillwyn v Llewelyn (1862) 4 De GF & J 517; 45 ER 1285: see Kramer v Stone (2023) 112 NSWLR 564; [2023] NSWCA 270 at [80] and Meagher, Gummow & Lehane's Equity: Doctrine & Remedies (5th ed, 2014, Lexis Nexis Butterworths) at [17-070].
2. The foundation of proprietary estoppel by encouragement was explained by the plurality in Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 at [6]: "In these cases, the equity which founded the relief obtained was found in an assumption as to the future acquisition of ownership of property which had been induced by representations upon which there had been detrimental reliance by the plaintiff. This is a well recognised variety of estoppel as understood in equity and may found relief which requires the taking of active steps by the defendant."
3. In Kramer v Stone at [76] to [105], Ward P said at [77]: "Proprietary estoppel by encouragement is one of a number of discrete equitable doctrines falling within the rubric of 'equitable estoppel'. The elements common to such doctrines are encapsulated in the well-known formulation of Brennan J, as his Honour then was, in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 428-429; [1998] HCA 7 (Waltons Stores v Maher): '… [I]t is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise. For the purposes of the second element, a defendant who has not actively induced the plaintiff to adopt an assumption or expectation will nevertheless be held to have done so if the assumption or expectation can be fulfilled only by a transfer of the defendant's property, a diminution of his rights or an increase in his obligations and he, knowing that the plaintiff's reliance on the assumption or expectation may cause detriment to the plaintiff if it is not fulfilled, fails to deny to the plaintiff the correctness of the assumption or expectation on which the plaintiff is conducting his affairs'"

Did Neil make the representations?

1. In order to found a proprietary estoppel, a representation must be sufficiently clear. The required level of clarity or certainty is not as high as is required by a contract or by the doctrine of promissory estoppel: Coster v Coster at [169]-[170]; Kramer v Stone at [84]; see also Flinn v Flinn [1999] 3 VR 712; [1999] VSCA 109 at [80]; Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84 (Delaforce) at [55]. I particularly note what Hodgson JA said in Sullivan v Sullivan [2006] NSWCA 312 at [85], cited with approval in Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26 at [147] (Keane J) and [179] (Nettle J) and in Kramer v Stone at [86]: "Generally, a promise or representation will be sufficiently certain to support an estoppel if it was reasonable for the representee to interpret the representation or promise in a particular way and to act in reliance on that interpretation, thereby suffering detriment if the representor departs from what was represented or promised. Generally, if there is a grey area in what is represented or promised, but it was reasonable for the representee to interpret it as extending at least to the lower limit of the grey area and to act in reliance on it as so understood, I see no reason why the Court should not regard the representation or promise as sufficiently certain up to this lower limit."
2. Scott's evidence about the representations made to him is set out above at [94] to [106]. I have already referred at [90] to [91] to the general caution that should be applied in assessing a witness's evidence about things said so long ago, particularly where that witness stands to benefit from the Court's acceptance of that evidence. I approach Scott's evidence about the representations accordingly.
3. It is first appropriate to identify the reasons why, in the second and third defendants' submission, I should reject Scott's evidence about the representations.
4. Christina and Tracey squarely disputed that Neil ever made representations to Scott about inheriting or receiving the farmlands. It was difficult to discern the extent to which Craig joined in this submission although it probably does not matter. As I will explain, Craig gave evidence (which Christina and Tracey did not controvert) that Neil had made promises to him about inheriting or receiving part of the farms, a circumstance that has a bearing on my assessment of Scott's evidence about the same subject matter.

How did Scott understand the representations?

1. Christina and Tracey submitted that anything that had been said by Neil as to his testamentary intentions was just that: a statement of testamentary intention, which Scott always understood to be subject to change. They pointed out that Scott had accepted in cross-examination that even before 12 February 2007 he believed that his father would seek to provide for all of his children, including some provision for Craig which might come out of the farms. They submitted that he never in fact understood anything his father said about inheriting Parkvale and Miltons as involving any kind of promise, representation, or assurance, such that Scott should have foreseen that Neil could have changed his mind and devised them to others instead.
2. It is necessary to set out the three passages of cross-examination on which Christina and Tracey particularly relied in this respect. First, so far as the position prior to 2007 was concerned, they referred to the following: "Q. Before 12 February 2007 it's correct, isn't it, that you didn't know what your father intended for you and the three other children with respect to his estate in due course, correct? A. I never saw a will prior to 2007. And the intention of what dad told me many a time, that I was to continue farming. Q. Before 12 February 2007 you didn't know what your mother's intention was-- A. That's correct. Q. --with respect to her estate? A. That's correct. But again, paralleling what I said with dad, she also promoted farming for me. To me. Q. Whatever your mother's intention with respect to her estate, you knew that she on the passing of your father would be providing in some way for all four children, correct? A. With me farming and three children, three siblings having residue. Q. Before 12 February 2007 in respect of your father's intentions with respect to what he proposed on his death and upon the death of your mother, you always understood that he'd provide for all four children, correct? A. That's correct. Q. You didn't have an understanding as to how he would do so in the period before 12 February 2007, correct? A. I can't answer for dad. Q. I'm asking about your understanding. A. I - please repeat the question. Q. Before 12 February 2007 you did not know what your father intended as to how he would divide his estate between the four children in due course following his passing and your mother's passing? A. I did not know. Q. But you knew as to both parents before 12 February 2007 it was up to them to decide, correct? A. Of course. Q. You knew that they could change their mind with respect to their testamentary intentions in whatever will they had, correct? A. It's, it's their choice."

Reliance

1. Scott is required to demonstrate that he acted in reliance on the relevant assumption and that his reliance was reasonable. Reliance is not to be presumed and the onus is on the plaintiff in proving it: Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 at [58]; Caringbah Investments Pty Ltd v Caringbah Business and Sports Club Ltd (in liq) [2016] NSWCA 165 at [77] (Bathurst CJ with McColl and Macfarlan JJA agreeing); Kramer v Stone at [91]. The induced assumption does not need to be the sole cause for the conduct which amounts to reliance, it need only be a "contributing cause": Sidhu v Van Dyke at [90] (Gageler J).
2. What is necessary is that the plaintiff must "demonstrate that he or she would have acted differently but for the… assumption" (emphasis added): Miller Heiman Pty Ltd v Sales Principles Pty Ltd (2017) 94 NSWLR 500; [2017] NSWCA 106 at [49] per Macfarlan JA (McColl JA and Sackville AJA agreeing); Kramer v Stone at [92]; Sidhu v Van Dyke at [91]-[93] (Gageler J).
3. In Coster v Coster, I said of this same issue at [183]: "In Q v E Co (2021) 383 ALR 469; [2020] NSWCA 220, it was pointed out at [88] that authority requires the party relying on the estoppel to demonstrate that they would have acted differently in the absence of the relevant encouragement. Reference was made to Sidhu v Van Dyke at [66], [67] and [69]. It is therefore necessary to consider what would have happened if the representation or encouragement had not been made. A consideration of this question may also disclose whether the party relying on the estoppel has suffered any detriment by reason of their reliance: see Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 at 674-675; [1937] HCA 58."
4. Scott submitted that he relied on the assumption that he would inherit or otherwise receive Parkvale and the remaining interest in Miltons that he did not already own. He submitted that if Neil had not represented to him that those properties would be his one day, he would not have stayed in the Partnership, nor would he have been willing to contribute to the maintenance and improvement of the properties, nor would he have been willing to work so hard for so long (indirectly assisting with paying down the partnership debt) and for relatively small partnership drawings. He states that he would have sought employment outside of the Partnership, and "carve[d] out [his] own life using [his] practical skills, qualifications and experience in cropping and livestock activities". It is reasonable to infer that he would also not have acquired Fairfield, which really only made sense as a viable purchase if combined with adjoining partnership properties.

Legal Principles - Detriment

1. In Thompson v Palmer (1933) 49 CLR 507; [1933] HCA 61, Dixon J said at 547 that the object of an estoppel "is to prevent an unjust departure by one person from an assumption adopted by another as the basis of some act or omission which, unless the assumption be adhered to, would operate to that other's detriment". In Kramer v Stone, Ward P described the task of determining detriment as follows (at [94]): "In a case of estoppel by encouragement, the relevant detriment is not the loss flowing from mere non-fulfilment of a representation or promise (Verwayen at 429 (Brennan J); and see Neuberger LJ in Steria Ltd v Hutchison [2007] ICR 445 at [125]). Rather, what must be established is that the plaintiff has suffered (or will suffer) detriment if the defendant is permitted to resile from his or her representations or promises."
2. The concept of detriment in proprietary estoppel is not narrow or confined: Donis v Donis (2007) 19 VR 577; [2007] VSCA 89 at [20] per Nettle JA with Maxwell ACJ and Ashley JA agreeing, cited with approval in Kramer v Stone at [95]. The purpose of the remedy is to do equity. Detriment "need not consist of expenditure of money or other quantifiable financial disadvantage so long as it is something substantial": see Donis v Donis at [20]. Nettle JA also said of the requirement to demonstrate detrimental reliance: "…The requirement must be approached as part of a broad inquiry as to whether departure from a promise would be unconscionable in all the circumstances."
3. In determining whether it would be unconscionable to allow a defendant to resile from the induced assumption, it is necessary to identify the nature and size of the detriment suffered (Donis v Donis at [20]; Sidhu v Van Dyke at [83]-[84]). Similarly, the nature of the detriment may also be relevant to the appropriate form of ultimate relief: Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39 (Verwayen) at 441 per Deane J cited with approval by the plurality in Sidhu v Van Dyke at [83].
4. It is often said that the detriment suffered in proprietary estoppel cases involves "life-changing decisions with irreversible consequences of a profoundly personal nature": Donis v Donis at [34]; cited with approval in Sidhu v Van Dyke at [84] (French CJ, Kiefel, Bell and Keane JJ) and in Kramer v Stone at [96]. In Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220; (2020) 383 ALR 469 (Q v E), Meagher JA (with Leeming and Payne JJA agreeing) said at [125]: "Thus, detriment sufficient to support an estoppel by encouragement need not involve expenditure of money on the property the subject of the estoppel or otherwise, or be capable of financial quantification: Walsh v Walsh [2012] NSWCA 57 at [14]. It is well recognised that detriment in the relevant sense may flow from having significantly changed the course of one's life: see Riches v Hogben [1985] 2 Qd R 292, where the detriment was constituted by the plaintiff selling his possessions, giving up a house in England, and bringing his family to Australia in reliance on an expectation that the defendant, his mother, would provide a house in his name if he and his family migrated; and Delaforce, where, when settling proceedings in the Family Court, and in reliance on a promise that the deceased would bequeath a property to her, the plaintiff gave up a claim to an amount of $50,000 and did not seek an order that she should have title to the property after the death of her former husband."

The parties' positions on detriment

1. As often happens, the parties' submissions about reliance overlapped quite significantly with their submissions about detriment.
2. Scott's submission was that he continued working in the Partnership and on the farms for long hours and for little remuneration instead of seeking employment elsewhere or going out on his own. He pointed to his contributions to the development and improvement of Parkvale and Miltons and to his efforts over many years in reducing the debt of the Partnership. He also pointed to his increasing responsibility and workload in managing the farms as Neil grew older. Scott submitted that these choices, made on the basis of his assumption about inheriting Parkvale and his parents' shares of Miltons, amounted to "life-changing decisions, contributions and sacrifices".
3. Tracey and Christina particularly relied on the reasons of Tennent J in Parker v Parker [2017] TASSC 37 for the proposition that Scott did not suffer detriment by remaining in the Partnership. They placed particular emphasis on a portion of the promisor's submissions extracted by Tennent J at [163] (and apparently agreed by Tennent J at [164]): "Nor does the defendant's case reveal the necessary detriment which is required: the case essentially comes down to an assertion that the defendant worked long hours for little or no remuneration in the partnership. The flaw in asserting this in support of the constructive trust claim is that this was a requirement of the particular enterprise which the parties embarked upon, in full knowledge of what was required. It is the partnership which was designed to confer mutual benefit upon Ira Parker and the defendant. In consequence of the death of Ira Parker, the defendant will ultimately receive three quarters of the value of the partnership assets. No question of unconscionable denial of this entitlement arises. Finally, on these claims, there is no evidence upon which the Court could find as a fact that the defendant incurred any additional detriment in reliance upon the vague representations that one day the farm would be gifted to him. All of the work which he did was required to be done in accordance with the partnership. It is true that the amount of work varied, as between Ira Parker and the defendant, from 1995 or thereabouts: but this was to be expected. It is in the very nature of a father and son family farming partnership. The change in work level was in consequence of the aging of the father, and it is not to be causally related to any representation to the effect that the son would ultimately succeed to the assets."

Has Scott suffered detriment?

1. Scott's case on the question of detriment is quite straightforward. Had he not been induced to believe that he would one day inherit Parkvale and his parents' interests in Miltons, he would not have continued working in the Partnership. Rather, he would have sought more remunerative options elsewhere. As mentioned above, he would have "carve[d] out [his] own life using [his] practical skills, qualifications and experience in cropping and livestock activities". There is no doubt that Scott worked very hard in the Partnership over a very long period of time. Until 2006 or 2007 when he took work at the mines, he had worked in the Partnership continuously since it was formed in 1989, and on the farms from as early as November 1988. The evidence as to his actual drawings over that period was scant, but there seemed to be no dispute that he had only ever drawn modest amounts from the Partnership. By the 2007 financial year, his partners' funds were in the negative to the amount of $248,102.28, he had personal debt associated with the purchase of Fairfield (which I find below was not a "paper debt"), and he was jointly liable for the Partnership's fairly significant banking facilities of approximately $300,000.
2. Between 2006 or 2007 and 2012, whilst working at the mines, his contribution to the work of the Partnership was especially taxing. Over the subsequent five years his contributions to the work of the Partnership increased even further as his father's ability to contribute to the farm declined with his advancing age.
3. I am unable to accept the submission that Scott suffered no detriment because his work in the Partnership was work that he did - and was contractually bound to do - by reason of being a partner. In the light of the authorities to which I have referred, the inquiry is as to what Scott would have done if the relevant assumption had not been induced. Given that Neil ultimately resiled from making good the assumption, it is necessary to determine whether Scott would have been better off overall if he had not relied on it in the first place.
4. The evidence shows that Scott was and remains hard working and resourceful. He has farmed all his life, save for the recent years in which he has had no real choice but to take work in town because of the AVO, the termination of the Partnership and the ongoing family dispute. He is clearly more than able to manage a moderately large rural property, including in adverse circumstances. Of his siblings, it is quite clear that he is the most adept at farming. This is hardly surprising given that it was his entire livelihood for so long. He is self-reliant and intelligent.

Parker v Parker

1. Lastly in relation to the question of detriment it is necessary to address the defendants' submission about Parker v Parker. This was the only authority to which the defendants referred me in closing submissions on the question of detriment.
2. Parker v Parker concerned three parcels of real estate that made up a farming property in Tasmania which had been held and farmed in the Parker family for several generations. The dispute arose following the death of Ira Parker who, at the time of his death in 2003, was the family patriarch. The litigants were his two sons, Tony and Garth. Ira did not leave a will.
3. Ira and Tony had farmed as equal partners for over 30 years prior to Ira's death. There was no question that all three parcels were property of that partnership. Ira entered a nursing home during 1998. In 1999 title to all three lots was transferred into the name of Tony alone. Garth, who was entitled on intestacy to a share of Ira's estate, sought to recover Ira's interest in the farming partnership, including his interest in the property that was now in Tony's name, to satisfy his entitlement.
4. Tony resisted Garth's claims on various bases, some of which are quite difficult to discern. So far as I can tell, none of his claims involved a proprietary estoppel. He did however assert that Ira had held his interest in the partnership property subject to a constructive trust in favour of him (Tony). That constructive trust was said to arise, although it is unclear, by reason of a "common intention", a proposition which might reasonably be thought to invoke the principles described in Green v Green (1989) 17 NSWLR 343, Pettitt v Pettitt [1970] AC 777 and Gissing v Gissing [1971] AC 886. In argument, however, counsel for Tony relied on both Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78 and Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59 to say that a constructive trust "of some sort" existed: [152].
5. At paragraphs [153] and [154], Tennent J referred to the authorities upon which Tony relied; at [154] in particular, her Honour set out a passage from the reasons of Mason CJ, Wilson and Deane JJ in Baumgartner v Baumgartner in which their Honours quoted from the reasons of Deane J in Muschinski v Dodds.
6. Her Honour then said at [155]: "However in Giumelli v Giumelli [1999] HCA 10, 196 CLR 101, the High Court dealt with what I loosely describe as a 'farming' case where real property in part was a partnership asset. The court was asked to find that a constructive trust existed."

Was it unconscionable of Neil to resile from the representations?

1. The relationship between the element of unconscionability and the doctrine of estoppel is somewhat indistinct. In any case, it has been said that this element "does not exist at large" and "has been said not to be a 'triable issue'": Kramer v Stone at [97]. The learned authors of Meagher, Gummow & Lehane's Equity: Doctrines and Remedies said at [17-040]: "Where a promise is made, it is not the breach of promise, but the promisor's responsibility for the promisee's detrimental reliance, which makes it 'unconscionable' for the promisor to resile from the promise. Once it is established that the promisee detrimentally relied on the promisor's promise in such a case, it would by definition be unconscionable for the promisor to depart from the assumed state of affairs."
2. In Kramer v Stone at [98], Ward P set out the "current holistic approach to unconscionability" that was stated by Allsop P in Delaforce at [3]: "Equity will look at all the relevant circumstances that touch upon the conscionability (or not) of resiling from the encouragement or representation previously made, including the nature and character of the detriment, how it can be cured, its proportionality to the terms and character of the encouragement or representation and the conformity with good conscience of keeping a party to any relevant representation or promise made, even if not contractual in character."
3. I have already found that Scott acted to his detriment in reliance on the representations. The fact of Scott's detrimental reliance, considered in the context of the facts generally, leads me to conclude that it was unconscionable of Neil to resile from the representations by making his 2016 and 2018 wills.
4. It will be necessary to return to the concept of unconscionability in the context of considering the appropriate relief.

What relief is appropriate?

1. It is the case that where an estoppel has been made out the appropriate relief is usually commensurate with the promise that was made. In Sidhu v Van Dyke at [85], the majority said: "… While it is true to say that 'the court, as a court of conscience, goes no further than is necessary to prevent unconscionable conduct', where the unconscionable conduct consists of resiling from a promise or assurance which has induced conduct to the other party's detriment, the relief which is necessary in this sense is usually that which reflects the value of the promise."
2. However, there are circumstances where the making good of the promise may not be the appropriate remedy. In Sidhu v Van Dyke at [83] the majority approved what was said by Deane J in Verwayen at 441: "There could be circumstances in which the potential damage to an allegedly estopped party was disproportionately greater than any detriment which would be sustained by the other party to an extent that good conscience could not reasonably be seen as precluding a departure from the assumed state of affairs if adequate compensation were made or offered by the allegedly estopped party for any detriment sustained by the other party."
3. Consideration of the proportionality of the relief may be necessary where there is a reason why good conscience would not require a promisor to be held to their promises. However, proportionality is not a necessary constituent part of the doctrine of proprietary estoppel and the starting point when fashioning relief must be the terms of the representation: see Delaforce per Allsop P at [4] and Handley AJA at [92]. Authorities have suggested that modifying the usual relief may be appropriate in circumstances where fulfilling the terms of the representation would be "wholly disproportionate" or "out of all proportion" to the relevant detriment suffered: Ambridge Investments Pty Ltd (in liquidation) v Baker [2010] VSC 59 at [591]-[594], per Vickery J; Verwayen at 413, per Mason CJ; Priestley v Priestley [2017] NSWCA 155 at [164] per Emmett AJA, McColl and Macfarlan JJA agreeing on that point.
4. The task of fashioning relief should not be seen as a mere balancing equation between different levels of prejudice and detriment. It requires thoughtful consideration of all the circumstances of the case by a court of conscience. In Sidhu v Van Dyke the High Court approached the question of remedy in terms of the "requirements of good conscience": [83]. In Giumelli v Giumelli at [49]-[50] the majority weighed up all of the circumstances of the case and crafted relief "to avoid injustice to others… and to avoid relief which went beyond what was required for conscientious conduct…".

The partnership dispute

1. The relief sought by Scott in relation to the Partnership is set out at paragraph 25 of the statement of claim as follows: "Further or in the alternative, the Plaintiff seeks: a. an order that the Proceedings be referred to an Associate Judge of the Equity Division of the Supreme Court for the taking of accounts of the Partnership in order to determine: i. the net profit or loss of the Partnership; ii. the cost or value of the improvements made to Parkvale by the Plaintiff, as pleaded in paragraph 9(a) [of the statement of claim], for the purpose of determining the amount that is to be distributed and payable to the Plaintiff under clause 11 of the Partnership agreement; iii. the Plaintiff's capital contributions to the Partnership, for the purpose of determining the amount that is to be accounted to the Plaintiff pursuant to section 44 of the Partnership Act 1892; and iv. the profits of the Partnership since the purported dissolution of the Partnership on 1 September 2017, for the purpose of determining the Plaintiff's share in the profits of the Partnership that is attributable to the use of the Plaintiff's share in the assets of the Partnership, pursuant to section 42 of the Partnership Act 1892."
2. By their amended defence filed on 1 September 2023, the defendants admit that there should be an accounting in relation to the Partnership but otherwise deny Scott's contentions in paragraph 25 of his statement of claim. The defendants then make a series of allegations as to the basis on which the affairs of the Partnership should be wound up. The defendants contend: 1. The Partnership had an obligation to pay to Neil's estate "the sum due to it in circumstances where Neil's estate owns two thirds of the assets [of] the Partnership including any interest that Janet's estate may have had in such assets." 2. The Partnership has an obligation to pay Neil's estate the sums due by reason of ss 42 and 43 of the Partnership Act 1892 (NSW). 3. The Partnership has an obligation to pay rent, outgoings and expenses to Neil's estate for and out of its use of Parkvale and Miltons. The defendants rely in this regard on clause 10 of the partnership agreement. 4. Scott owes the Partnership the sum of $453,288.11 plus interest, being the so-called Fairfield debt. 5. Scott failed to make capital contributions to the Partnership. The defendants point to certain partnership accounts that were in evidence, which show a negative balance of partners' funds for Scott. 6. Neil's estate is entitled "to receive two-thirds of the assets of the partnership". 7. Scott was entitled to 50% of the profits of the Partnership "pursuant to an agreement to that effect for the 2016 and 2017 financial years which ceased when [Scott] abandoned the Partnership on or about 30 July 2017…whereupon [Scott's] entitlement to share in the partnership profits for the 2018 financial year reverted back to one third…" 8. Scott breached his obligation to act in good faith to Neil as partners in the Partnership, particulars of which were (a) a few of the alleged assaults to which I have already referred, (b) Scott's failure to have any input into the affairs of the Partnership after 30 July 2017 (ie, when the AVO was issued), (c) various "payments" made for the "personal benefit" of Scott, as detailed in affidavits sworn by his sisters, and (d) in an especially confusing particular, that Craig, Phillip and Isabella Ford (daughter of Tracey and Phillip) were owed a total of approximately $76,000 for doing work for the Partnership after Scott's "abandonment" of the Partnership on 30 July 2017. The pleading then said that accounts should be taken on a wilful default basis, but this contention was abandoned in final oral submissions. The pleading did continue to allege that Neil's estate was entitled to certain assets, together with cash in partnership accounts, however this was not pressed at the hearing.

The Fairfield debt

1. Scott's contention in relation to the Fairfield debt is that the estate is estopped from denying that the debt is not genuinely repayable. The claim is based on a promissory estoppel. The basic elements of promissory estoppel are similar to that of proprietary estoppel and were set out in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 428-9; [1988] HCA 7 and have already been reproduced earlier in this judgment at [325]. At the very core of the action of promissory estoppel is the requirement that the person seeking to invoke the estoppel has acted to their detriment in reliance on the representation of another. Scott says this applies to him in the context of the Fairfield debt.
2. Before I deal with Scott's evidence as to what his father said to him about repayment of the Fairfield debt, it is convenient to recall the salient facts.
3. Fairfield was purchased on about 13 July 1999 by Scott. Scott lived in the Fairfield homestead with Ann-Maree and their young children from 1999 to 2003 or 2004. In 2018, Scott leased Fairfield to Mr Green at around $52,000 per year. It is somewhat unclear what happened to the Fairfield homestead in the intervening years from 2004 to 2018 but for the period at least up to the AVO being issued, Scott was heavily involved in the farming of the farmland on Fairfield in conjunction with Parkvale and Miltons.
4. The evidence does not allow me to reach a conclusion as to where the whole of the purchase price for Fairfield came from, but there was no dispute that the bulk of the purchase price was funded by the proceeds of a loan taken out by Scott from CBA. There was some evidence to suggest that the deposit was paid by the Partnership, but the property was placed solely in Scott's name. The loan was secured by, at least, a mortgage over Fairfield. The evidence does not allow me to reach a firm conclusion as to whether CBA took security over any other assets to secure repayment of the loan to Scott. Some evidence suggests that the partners all personally guaranteed the loan and mortgaged their own properties to secure those guarantees. The Partnership serviced the interest on that loan from the acquisition right up until 2011 when it was subsumed into the Rabobank facility. It is unclear whether this affected Scott's current account with the Partnership.
5. Fairfield was used in the business of the Partnership. It was farmed in conjunction with Parkvale and Miltons. The Partnership did not pay rent to Scott for the use of Fairfield. There was never any attempt to identify profits attributable to Fairfield.

Was Miltons partnership property?

1. As I pointed out in Fragar v Fragar [2024] NSWSC 193 at [124], the starting point for determining whether an asset is partnership property is the proposition that "the acts and intention of the parties ... determine finally and ultimately the question whether property owned by a partner becomes partnership property": O'Brien v Komesaroff (1982) 150 CLR 310 at 322; [1982] HCA 33.
2. It is also necessary to have regard to ss 20 and 21 of the Partnership Act, which are as follows: 20 Partnership property of firms other than incorporated limited partnerships (1) All property, and rights and interests in property, originally brought into the partnership stock or acquired, whether by purchase or otherwise, on account of the firm, or for the purposes and in the course of the partnership business, are called in this Act partnership property, and must be held and applied by the partners exclusively for the purposes of the partnership, and in accordance with the partnership agreement. (2) Provided that the legal estate or interest in any land which belongs to the partnership shall devolve according to the nature and tenure thereof, and the general rules of law thereto applicable, but in trust so far as is necessary for the persons beneficially interested in the land under this section. (3) Where co-owners of an estate or interest in any land, not being itself partnership property, are partners as to profits made by the use of that land or estate, and purchase other lands and estate out of the profits to be used in like manner, the land or estate so purchased belongs to them, in the absence of an agreement to the contrary, not as partners, but as co-owners for the same respective estates and interests as are held by them in the land or estate first-mentioned at the date of the purchase. (4) This section does not apply to or in respect of an incorporated limited partnership. … 21 Property bought with partnership money Unless the contrary intention appears, property bought with money belonging to the firm is deemed to have been bought on account of the firm.
3. The reference here to "contrary intention" is significant in the present case. It is common ground that the Partnership was governed by the terms of a partnership agreement, which was in evidence. I have already set out clauses 10 and 12 of that agreement at [25] above. Clause 10 provides for the Partnership to use the land owned by partners in the business of the Partnership, on the conditions there set out. At the time the partnership agreement was executed, that clause would have been understood to apply to Parkvale, which was owned by Neil and Janet.

The 2016 Agreement about Janet's interest in the Partnership

1. It is finally necessary to deal with the question of what happened to Janet's one-third interest in the Partnership after her death.
2. Again, it is convenient first to recall the salient facts. Up until Janet's death in 2012, each of the partners had an equal one-third interest in the Partnership. Janet's interest in the Partnership was personalty, capable of being dealt with under her will. Under her October 2007 Will, the whole of Janet's estate was left to Neil absolutely and probate of that will was granted to Neil on 14 August 2013. Neither party made any submissions about the terms of the partnership agreement dealing with the death of a partner.
3. For the three years ending on 30 June following her death, the parties treated Janet's partnership interest as still held by Neil as executor of Janet's estate.
4. Mr Twomey, at least, seems to have believed that that is what had occurred for the 2013, 2014 and 2015 financial years. The present dispute stems from the steps taken by the parties to sort out what to do for the year ending 30 June 2016 and subsequent years.
5. The starting point is an email dated 20 May 2015 from Mr Twomey to Mr Billing. This is the email in which Mr Twomey proposed the 11 June 2015 meeting in Orange. In that email he referred to having had discussions with "the Macaulays" about "the need to address 'Parkvale Pastoral Co' which is the partnership which operates the farm". Mr Twomey said that the purpose of the meeting would be "to consider the options going forward after 1 July 2015."
6. Mr Twomey attached a note, which I take to be of or in relation to the discussion to which his email referred. The sections of Mr Twomey's note that are relevant for this part have already been set out at [152] above.
7. It is apparent that Mr Twomey put the question of what to do about Janet's partnership interest on the agenda for the June meeting because he realised it needed to be resolved for the upcoming financial year.
8. Mr Twomey's email of 10 June 2015, to which I referred at [154] above, included at item 2: "Look into the structure of 'Parkvale Pastoral Co' going forward from 1 July 2015. Do we continue with a partnership[?] What will Neil do with the share from Jan[?]"
9. It is also relevant to note that no one kept notes of the 11 June meeting. Mr Twomey did not, but said that he believed that Mr Billing was taking notes. However, if Mr Billing did keep notes, none were produced. In any event, the evidence suggests that this matter was indeed discussed at the 11 June meeting, as each of the defendants say that Neil agreed to a 50:50 split at this meeting (though each contend it was to profits only).

Taking of accounts

1. I agree with the parties in that a taking of accounts is necessary.
2. For the reasons I have given above, the taking of accounts should be done on the basis that: 1. The Fairfield debt was not a "paper debt". 2. Miltons was partnership property. 3. Neil was entitled to receive whatever amount of capital was due to Janet as at 30 June 2017, when it was transferred to him. 4. Neil and Scott operated as equal partners in the Partnership from 1 July 2015 until 1 September 2017.

Constructive trust claims

1. Scott has advanced claims further or in the alternative for orders designating Parkvale and the portion of Miltons that Scott does not already own subject to a common intention constructive trust and a joint endeavour constructive trust.
2. Given that I have found that Scott has made out a claim for proprietary estoppel, it is not necessary to address these claims.

Succession Act

1. Scott also advances a claim for further provision out of Neil's estate pursuant to s 59 of the Succession Act. It is not necessary to address this claim for the following reasons.
2. First, as I have already found that Scott is entitled to most of Parkvale and all of Miltons by way of his proprietary estoppel claim, I do not see any circumstance in which Scott would be entitled to further provision.
3. Secondly, even if I am wrong about Scott's entitlements to Parkvale and Miltons, I still do not think it appropriate to deal with the Succession Act claim given the opacity around Scott's financial circumstances. It is imperative in applications for further provision under the Succession Act that the Court has access to updated, accurate information about the applicant's financial circumstances: see Baker v Baker [2024] NSWSC 559 per Hammerschlag CJ in Eq at [21]-[24]. Because it remains necessary to wind up the Partnership, it is not presently possible to determine Scott's financial circumstances with any degree of precision. This is by no fault of any of the parties. An accurate figure can only be produced once there has been a taking of partnership accounts.

ORDERS

1. The declarations and orders of the Court will therefore be as follows: 1. Declare that the defendants, as executors of the estate of the late Neil Macaulay, hold their legal interests in the following properties on trust for the plaintiff subject to the conditions set out in order (2): 1. "Parkvale", located at Parkes, NSW, comprising Lots 122, 138, 145, 153, 155 and 188 in Deposited Plan 750132, Lot 61 in Deposited Plan 750160, Auto-Consol 8404-189, Auto-Consol 10847-200, Auto-Consol 10706-102, Auto-Consol 10706-103, and Lots 1 and 2 in Deposited Plan 1130686, save for the paddocks marked U, AE and Q on the paddock map annexed to these orders; and 2. "Miltons", located Parkes, NSW, comprising Lots 72, 73 and 74 in Deposited Plan 750160 and Lots 1-5 in Deposited Plan 1097809. 1. Declare that the plaintiff's interests under the trusts identified in order (1) are subject to the following conditions: 1. That the plaintiff shall convey free and clear title to "Fairfield" to the first defendant; 2. That the plaintiff shall renounce the devise of the property at 2 Endeavour Place, Parkes under the will of the late Neil Macaulay dated 10 August 2018. 1. Declare that the plaintiff and the late Neil Macaulay carried on the Parkvale Pastoral Co Partnership (the Partnership) as equal partners on and from 1 July 2015 until the termination of the Partnership. 2. Declare that the interest of the estate of the late Janet Macaulay in the capital of the Partnership as at 30 June 2017, being the sum of $249,223.19, was assigned to the late Neil Macaulay on 30 June 2017. 3. Declare that the plaintiff's liability to the Partnership in relation to the refinancing of the Fairfield debt, being the amount of $453,288 recorded in the financial statements of the Partnership for the year ending 30 June 2017 under the heading "Loan: Scott Macaulay re: Fairfield", was duly payable. 4. The statement of claim is otherwise dismissed. 5. The parties are to file short submissions and any additional evidence on the question of costs as follows: 1. Plaintiff on or before 4:00PM on 4 February 2025. 2. Defendants on or before 4:00PM on 14 February 2025. 3. Plaintiff in reply on or before 4:00PM on 21 February 2025.

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: 03 December 2024