Maher v Kuperholz [2022] VSC 224

For the Plaintiffs/Defendants by Counterclaim/Defendants by

For the Second and Third Defendants/First and Second

For the Seventh to Thirteenth Defendants/Second to Seventh

1 David and Anthony Maher are brothers who have lived on and farmed land near Barnong in Central Victoria all their lives. They are now 75 and 72 years old respectively. Significant portions of this land were acquired over many years by their father, Thomas P. Maher (TP Maher), who died in 1975. The land which David and Anthony continue to occupy and farm includes land owned by the estate of TP Maher, as well as a property known as 'Thompsons' from where they conduct their farming operations. 'Thompsons' is owned by the estate of their mother, Maureen Brown, who died on 18 June 2014.

2 The administrator of the TP Maher estate, Nathan Kuperholz (the Administrator), and the executors of the estate of Maureen Brown, Christine Burden and Damien Maher (David and Anthony's siblings), contend that David and Anthony are unlawfully occupying Thompsons and the land owned by the TP Maher estate. They seek damages against David and Anthony in the nature of mesne profits in respect of their unlawful occupation of the lands, and orders for vacant possession.

3 TP Maher and Maureen Brown had 11 children:[1]

Thomas Celestine Maher

Gerard Hards Maher

David John Maher[2]

Desmond Francis Maher

Anthony Charles Maher[3]

Rosemary Margaret Johnson

Michael James Maher

Patricia Ann Maher

John Joseph Maher

Christine Burden

Damien Maher

To avoid confusion and without any disrespect to the parties, I will generally refer to the parties and the children of TP Maher and Maureen Brown by their first names.

4 As noted above, TP Maher died on 3 June 1975 after a farming accident. After remarrying in 1981, Maureen Brown died on 18 June 2014.

5 TP Maher owned land comprised of the following certificates of title (collectively, 'the TP Maher estate land'):

6 The Maher family originally lived on the TP Maher estate land in a home known as 'Fine View'.

7 After TP Maher died, Maureen Brown purchased the following properties (collectively, 'the Maureen Brown estate land'):

Volume 6176, folio 130 (Thompsons)[4]

Volume 2670, folio 762 (Peppertree).[6]

8 For many years from about 6 December 1967, Thomas, Gerard, David and Anthony engaged in a farming partnership known as the 'Maher Bros partnership' (Maher Bros). Maher Bros owned land which was either contiguous with the TP Maher estate land, or otherwise in close proximity to the TP Maher estate land and the Maureen Brown estate land (the Maher Bros land). In addition to the holdings of Maher Bros, David and Anthony also separately own other land. That land too is either contiguous with the TP Maher estate land, or the Maher Bros land.

9 All of the land holdings referred to in [5]-[8] are closely proximate and collectively, have been known as the 'Maher Farm'.

10 The last will of TP Maher was executed on 19 August 1968 (the TP Maher will). It appointed Maureen Brown, Thomas and Gerard as executors of his estate. Probate was granted to them on 2 February 1976.

11 On 21 July 2017, the Court made orders removing the surviving executors of the TP Maher estate, Thomas and Gerard, and appointing the Administrator in their stead.

12 The TP Maher will provided for the following gifts:

(a) TP Maher's livestock and plant was bequeathed to Maureen Brown, Thomas, Gerard, David and Anthony in equal shares;

(b) a property of about 60 acres known as 'Barnong', together with the dwelling house on it, was devised to Thomas; and

(c) the residue of TP Maher's estate after payment of debts and expenses passed to Maureen Brown for her lifetime and, on her death, to TP Maher's sons Desmond, Michael, John and Damien and to his daughters Rosemary, Patricia and Christine (the remainder beneficiaries).[7]

13 Maureen Brown's last will was executed on 22 September 2009. It appointed Christine, Damien and Anthony to be the executors and trustees of her estate. Probate was granted to Christine and Damien (the Executors) on 26 November 2015.

14 As is presently relevant, under her will, Maureen Brown made the following gifts:

(a) Peppertree was devised to David and Anthony in equal shares;

(b) Thompsons was devised to Rosemary, Patricia, John, Christine, Damien and Michael in equal shares;

(c) Clements was devised to Thomas;

(d) David and Anthony were given the right to retain items owned by Maureen Brown which were located at Fine View;

(e) Maureen Brown's residuary estate was to be divided in different shares between Rosemary, Patricia, Christine, Michael, John and Damien.

15 David and Anthony commenced the proceeding by writ on 7 October 2019. They made various claims against the Administrator, including for recovery of certain debts and a claim for a declaration that the TP Maher estate holds a proportion of its lands on trust for the partners of Maher Bros and the estate of Maureen Brown as a result of unpaid loans alleged to have been made to the estate. David and Anthony also claimed relief against the Executors, including a declaration that they were entitled to be registered as proprietors of Thompsons and Clements by reason of Maureen Brown having promised them that, if they did not contest their father's will, she would leave those properties to David and Anthony in her will.[8]

16 All of David and Anthony's claims in the proceeding were struck out by operation of self-executing orders made by the Court on 18 June 2021.[9] The proceeding nevertheless thereafter remained on foot because of the following counterclaims made by the Administrator and the Executors.

(a) The Administrator's counterclaim, filed on 25 November 2019, was brought against David, Anthony, Gerard and Thomas - being the persons comprising the Maher Bros partnership - for damages in the nature of mesne profits because of their alleged unlawful occupation of the TP Maher estate land.[10] The claim against Gerard has since been resolved by agreement[11] and judgment has been entered against Thomas in respect of liability, with the issue of quantification adjourned for assessment following the determination of the counterclaim. As a consequence, only the Administrator's counterclaims against David and Anthony remain to be determined.

(b) The Executors' counterclaim, filed on 1 May 2020, was brought against David and Anthony for damages in the nature of mesne profits because of their alleged unlawful occupation of Thompsons.

17 On 12 November 2021, I gave leave to the Executors and the Administrator to amend their respective counterclaims to include claims to recover possession of Thompsons (in the case of the Executors' counterclaim) and the TP Maher estate land (in the case of the Administrator's counterclaim). The trial proceeded in respect of the amended counterclaims.

(a) The Administrator sought orders that David and Anthony provide him with vacant possession of the TP Maher estate land and that they pay the TP Maher estate mesne profits, or alternatively damages, in respect of their asserted unlawful occupation of those lands from 17 July 2017 until physical possession of the land is delivered to them.

(b) The Executors sought orders that David and Anthony provide them with possession of Thompsons and that they pay the Maureen Brown estate mesne profits in respect of their asserted unlawful occupation of Thompsons from 1 January 2017 until judgment.

Are David and Anthony in unlawful occupation of land?

18 David and Anthony's unchallenged evidence was that they 'worked ... for the family on the family farm' from 1961 until Maureen Brown's death on 18 June 2014. Importantly, they also admitted that they have continued to occupy Thompsons and the TP Maher estate land since Maureen Brown's death.

19 Thompsons was owned by Maureen Brown at the time of her death. Her will provides for it to be devised to Rosemary, Patricia, John, Christine, Damien and Michael in equal shares. As further examined below, the Executors contend that David and Anthony's occupation of Thompsons has been unlawful since 1 January 2017.

20 The TP Maher estate land is part of the residue of the TP Maher's estate which, under the TP Maher will, passed to Maureen Brown for her lifetime and, on her death, passed in various shares to the remainder beneficiaries (being Desmond and those persons who are also the beneficiaries under Maureen Brown's will referred to in the previous paragraph). The Administrator contends that any licence or consent for David and Anthony to remain in possession of the TP Maher estate land ceased upon his appointment as administrator on 21 July 2017. In the alternative, the Administrator advances a number of later dates, considered further below, from when he contends that any licence or consent for David and Anthony to remain in possession of the TP Maher estate land ceased.[12]

21 The central issue for determination is accordingly whether David and Anthony's continuing occupation of Thompsons and the TP Maher estate is unlawful and, if it is, from when it commenced to have that character. By their contentions to which I have referred, the Administrator and the Executors implicitly accept that, in the period after Maureen Brown's death until the dates they each identify, David and Anthony had an implied licence to occupy Thompsons and the TP Maher estate lands.

22 The relevant legal principles are clear. As the High Court stated in Kuru v New South Wales, 'an authority to enter land may be revoked and ... if the authority is revoked, the entrant no longer has authority to remain on the land but must leave as soon as is reasonably practicable'.[13] As licensees occupying the relevant lands, David and Anthony would not become trespassers until they were notified that their licence to occupy the lands was revoked and a reasonable time had passed to enable them to remove themselves and their possessions from those lands.[14]

23 I will first address the position in relation to the TP Maher estate land and then consider the position in relation to Thompsons.

24 In addition to the facts referred to above, the following facts and matters were relied upon by the Administrator in relation to his claim that David and Anthony are unlawfully occupying the TP Maher estate land.

(a) Following his appointment as administrator of the TP Maher estate on 21 July 2017, on 27 November 2017 he wrote to David and Anthony's then solicitors in relation to their use of TP Maher estate land in the period since Maureen Brown's death. The Administrator requested that, by 4 December 2017, they provide a proposal about what they considered to be a reasonable amount of compensation to be paid to the TP Maher estate for their use of the TP Maher estate land in the period since Maureen Brown's death, as well as 'a reasonable ongoing arrangement from now until the date that the Estate is administered and the Land is transferred to any beneficiaries'. There was no response to this correspondence. The Administrator re-stated his requests in a letter to David and Anthony's then solicitors dated 18 December 2017.

(b) On 22 December 2017, David and Anthony's then solicitors responded in writing to the Administrator's letter dated 18 December 2017. They relevantly stated as follows:

We are instructed to advise that our clients are not in a position to enter into any discussion concerning the use of Estate land, as it would not be appropriate for our clients to consider entering into any arrangement until the Court has decided the legal and equitable ownership of the relevant properties and the distribution of the relevant Estate.

(c) There was no further communication about David and Anthony's use of the TP Maher estate land until 14 August 2018 when the Administrator wrote to David and Anthony's then solicitors in relation to a fencing notice which had been served on the TP Maher estate. The Administrator relevantly stated as follows:

2. Your clients and the Maher Bros partnership are benefitting from use of the land belonging to the Estate ('Land') to which they have no entitlement under the terms of the Will and to the financial detriment of the Estate.

3. The Estate has not received any rental from your clients, or the Maher Bros partnership, for your use of the Land since the death of Maureen Brown on 18 June 2014. A consequence of this is that the Estate does not have adequate funds to meet its obligation to pay its share of the cost of the fence pursuant to the Fencing Notice.

...

5. For that reason, the Estate accepts your clients' proposal that the Maher Bros partnership fund the Estate's share of the cost of the fence pursuant to the Fencing Notice, however this will not be acknowledged as a loan to the Estate or a capital contribution to the Estate, but the sum paid in this respect will be set off against the unpaid rental that has been accruing since June 2018.

(d) The Administrator wrote again to David and Anthony's solicitors on 11 October 2019 in relation to various matters, including the transfer of TP Maher estate properties and payment of rent by David and Anthony. The Administrator sought confirmation that David and Anthony would provide vacant possession of 'the property' within 14 days and referred to his earlier correspondence outlined in the above paragraphs. The Administrator also referred to a kerbside valuation obtained in relation to the market rental of the TP Maher estate property since 2014. The Administrator stated that:

Any entitlement your clients and/or the Maher Brothers Partnership may have had to reside in and use the Estate properties ceased upon the death of Mrs Maureen Brown on 18 June 2014. As previously foreshadowed, my position is that the Maher Brothers partnership are liable to compensate the Estate for the loss of rental income that could have been earned but for your clients' occupation of the properties without consent following the death of Mrs Brown.

The Administrator estimated that the loss of rental income was in excess of $500,000. The Administrator did not receive a response to this letter.

(e) As I have already noted, the Administrator filed his counterclaim on 25 November 2019.

(f) The next relevant communication between the Administrator and David and Anthony was on 23 August 2021 when the Administrator's solicitor wrote to David and Anthony's then solicitor and expressly demanded vacant possession of the TP Maher estate land.

25 The Administrator gave evidence that, since he was appointed to administer the TP Maher estate, he:

(a) has not given permission for David and Anthony to remain in occupation of the TP Maher estate land;

(b) has not entered into any agreement with David and Anthony in respect of the TP Maher lands; and

(c) has not received any payment from David and Anthony for their occupation of the estate lands.[15]

There is no evidence which contradicts the Administrator's evidence in relation to these matters. I accept the Administrator's evidence in relation to the matters referred to in subparagraph (c) and that he has not taken any positive step or action to the effect referred to in subparagraphs (a) and (b).

26 Subject to considering the bases upon which David and Anthony say that their occupation of the TP Maher estate land is lawful, the above communications otherwise support a conclusion that their occupation of these lands has been unlawful since 1 December 2019.

27 It was not until 11 October 2019 that the Administrator made a clear and unequivocal demand of David and Anthony for them to give possession of the TP Maher estate land. [16] In the circumstances of the case, I consider that a period of approximately 6 weeks, that is from 1 December 2019, is a reasonable amount of time for David and Anthony to remove themselves and, more particularly, their possessions, from the TP Maher estate lands. I make that finding on the basis that the TP Maher estate lands have been used by David and Anthony for farming purposes for many years, from which I infer that there would at least be a reasonable amount of farming equipment and/or livestock to be relocated. The task of relocation cannot, however, be viewed as being unduly burdensome, given that David and Anthony and Maher Bros own land which is immediately proximate to the TP Maher estate land.

28 There is no basis for the Administrator's claim that David and Anthony's occupation of the TP Maher estate lands became unlawful upon his appointment as Administrator. The Administrator did not take any action in respect of David and Anthony's occupation of the lands until more than 4 months after he was appointed, and then only invited David and Anthony to provide a proposal for compensation for their use of the land and for an arrangement to apply until the estate was administered. The Administrator's request for these proposals did not amount to, whether expressly or impliedly, the giving of notice to David and Anthony to cease occupying the TP Maher estate lands.

29 Despite the fact that no proposals from David and Anthony were forthcoming, the Administrator did not take any action in relation to their continuing occupation of the TP Maher lands for another nine months. And that next communication, on 14 August 2018, was in response to a fencing notice provided by David and Anthony. Although the Administrator thereby informed David and Anthony that they had no entitlement to use the land, he did not request that they vacate the land. The Administrator did not then do anything further in relation to their occupation of the land for more than a year; it was not until 11 October 2019 that he sought that David and Anthony provide vacant possession of the TP Maher estate lands in 14 days.

30 In summary, although the above correspondence establishes that, from at least December 2017, the Administrator regarded David and Anthony's continuing occupation of the TP Maher estate land to be unsatisfactory, only 2 years later, on 11 October 2019, did the Administrator take clear and unequivocal action to bring that state of affairs to an end. Until that time, the Administrator elected, in effect, to tolerate David and Anthony's continuing occupation of the TP Maher estate lands, even though he apparently viewed that situation to be unsatisfactory.

31 David and Anthony contended that they had not been wrongfully occupying the TP Maher estate lands because, in about 2002, Maureen Brown gave them 'perpetual use' of that land 'as an agreement by ... paying the rates' on the land.

32 This submission is consistent with Anthony's evidence that, while he and David were sitting with Maureen Brown at the dining room table at Fine View in about 2002, Maureen Brown said to them that if they 'paid the rates of the estate land, we could have perpetual use of it'. This was said by Maureen Brown at about the time when she handed over a small parcel of livestock to Maher Bros. David's evidence, although less specific, was generally consistent with Anthony's evidence on this point. The evidence also establishes that David and Anthony have paid the rates in relation to the TP Maher estate lands since about 2002 or 2003.

33 The Administrator submitted that I should reject David and Anthony's evidence on this point because it was self-serving and not credible. I do not accept that submission. As a matter of fairness, for such a submission to have force, it was necessary for counsel for the Administrator to in substance put to both David and Anthony that their evidence was an invention or exaggeration. Although counsel put to David that he had recently invented his evidence on this point, Anthony was not afforded an opportunity to respond to the same or equivalent proposition. Further and in any event, allowing for David and Anthony's status as self-represented litigants and acknowledging that their recollection about some matters at trial was sometimes confused and unclear, their demeanour in their evidence on this point was compelling. I have a clear conviction that their evidence about what Maureen Brown said to them in the dining room at Fine View in 2002 about having perpetual use of the estate land is true.

34 A key basis upon which the Administrator submitted that David and Anthony's evidence on this point lacked credibility was because the claim that Maureen Brown had told them that they could have perpetual use of the TP Maher estate land if they paid the rates on the land had never been pleaded or raised in any of the correspondence which had passed between the Administrator and David and Anthony's former representatives. There is, however, a more obvious explanation for why this claim had never been pleaded or raised by David and Anthony's former legal representatives: as a matter of law, the claim is misconceived.

35 At the time Maureen Brown is said to have made this statement to David and Anthony, she was a mere life tenant of the TP Maher estate. It follows that the only entitlements in respect of the TP Maher estate land she might have been able to confer on David and Anthony would be limited to transferring or assigning the beneficial entitlement that she had as life tenant in those lands, or otherwise giving them a licence to use the lands, for the period of her life. Any such rights that she might have granted to, or conferred on, David or Anthony must necessarily have ended upon her death because her beneficial interest was a life interest only. In these circumstances, it is unsurprising that David and Anthony's claim about what Maureen Brown told them at the dining table in Fine View does not appear in the pleadings which counsel prepared, or in the correspondence sent by David and Anthony's former solicitors: one would not expect David and Anthony's legal representatives to advance a claim which was misconceived as a matter of law.

36 In conclusion, while I accept David and Anthony's evidence that Maureen Brown told them in about 2002 that they could have perpetual use of the TP Maher estate lands in return for paying the rates on those lands and that they have in fact paid the rates on the land, for the reasons just stated, it does not follow that they thereby accrued a legal entitlement to continue occupying the TP Maher estate lands after Maureen Brown's death.

37 The fact that David and Anthony's occupation of the lands only became unlawful on and from 1 December 2019 is a consequence of the fact that it was not until 11 October 2019 that the Administrator revoked their right to occupy those lands, which right the Administrator had impliedly granted to David and Anthony after his appointment by permitting them to continue in occupation of the lands as they had done in the years since Maureen Brown's death.

38 Although it was not properly developed in their submissions, as self-represented litigants, it is appropriate to consider a further basis upon which David and Anthony might be said to have a lawful right to occupy the TP Maher estate lands.

39 In their defence to counterclaim, David and Anthony pleaded certain denials and admissions and, without elaboration, referred to paragraph 21 of their statement of claim. In order to understand the allegation in that paragraph, it is first necessary to further outline the nature of the claims made by David and Anthony in their statement of claim which, as I have noted, have been struck out.

40 As is presently relevant, David and Anthony allege that, at the time of TP Maher's death, Victorian death duties on his estate were assessed in the amount of $88,674, and Federal death duties were assessed in the sum of $74,861. It is alleged that those duties were not paid promptly and that instead, in 1981, Maher Bros paid $40,000 in respect of Federal death duties and $15,000 in respect of State death duties and, in 1986, Maureen Brown paid $34,519.39 in respect of Federal death duties. David and Anthony allege that these amounts were advanced by way of loans to the TP Maher estate.

41 One of the primary claims advanced by David and Anthony in their statement of claim was that, despite their demands, they have not been repaid the above 'loan funds', together with associated interest. In paragraph 21, they then plead in the alternative that:

...by reason of the advancing of the loan funds, those funds in effect amounting to a capital contribution towards the retaining of the lands owned by the T.P. Maher estate, the partners of Maher Bros (and the estate of Maureen Brown) are entitled in equity to a declaration (and consequential vesting orders) that the T.P. Maher estate holds a proportion of the lands owned by that estate at the times those contributions were made on trust for the partners of Maher Bros (and the estate of Maureen Brown).[17]

42 Assuming that, despite the claims in the statement of claim having been struck out, it is nonetheless open for David and Anthony to rely upon this paragraph in their defence to the counterclaim, the claim has not been established on the evidence.

43 David and Anthony did not adduce any relevant documentary evidence in relation to the claim in paragraph 21 of their statement of claim and the financial statements and accounts of the TP Maher estate were not in evidence before me. The only relevant evidence adduced by David and Anthony on this point was the following identical paragraph which appeared in both their affidavits which they adopted as their evidence in chief:

Probate duty for my father's will was paid by Maher Brothers., and is still showing in the Balance sheet of Est TP Maher $186,000 ("the loan"). This is still unpaid and there is Compound Interest at 12%.

44 Although this paragraph from David and Anthony's respective affidavits - which was not challenged in cross examination - is evidence that Maher Bros paid the probate duty of the TP Maher will, it does not establish that Maher Bros did so by 'the advancing of ... loan funds' as alleged in paragraph 21 of the statement of claim. Furthermore, even if there had been evidence sufficient to establish that Maher Bros and Maureen Brown made loans to the TP Maher estate as alleged, there is no evidence that the nature and circumstances of those loans were such as to go beyond the creation of a conventional debtor/creditor relationship to ground the creation of an equitable interest in land, being the substance of the allegation in paragraph 21 of statement of claim. Accordingly, to the extent that it may be open to David and Anthony to rely upon the allegation in paragraph 21 of the statement of claim as part of their defence to the Administrator's counterclaim, that claim must fail.

45 For the reasons I have outlined, David and Anthony's submissions do not lead me to depart from the conclusion otherwise established on the evidence that their continuing occupation of the TP Maher estate lands has been unlawful since 1 December 2019.

46 In addition to the facts to which I have already referred concerning Thompsons, the key facts relevant to determining whether David and Anthony's occupation of Thompsons is unlawful are contained within a letter dated 1 December 2016 sent to David and Anthony's former solicitors by the Executors' then solicitors. After referring to Maureen Brown as the registered proprietor of Thompsons and the provision made by Maureen Brown's will in relation to the property, the letter continued as follows (underlining added):

We understand that your clients, whether through the operation of the Maher Bros partnership or in their individual capacity, have occupied Thompsons since the date of the deceased's death on 22 September 2009 (and indeed before her death) without any rental having been paid to the estate despite requests by our clients.

Our clients have obtained an independent valuation of the applicable rent from North Eastern County Real Estate at a rate of $30 per acre per annum. A copy of the valuation is enclosed for your reference.

Whilst our clients reserve their rights in respect of the previous occupation by your clients, from 1 January 2017 should your clients wish to remain in occupation of the property, our clients require a formal lease to be entered into with payment of the applicable rent as assessed by North Eastern Country Real Estate. We enclose a proposed lease for your clients' consideration. As you will observe, at this stage, the lease has been offered to all of Thomas, Gerard and your clients, comprising Maher Bros, however our clients will consider entering in to the lease separately as can be negotiated.

Should your clients' [sic] not wish to take up the option of the lease, our clients require vacant possession of Thompsons by 31 December 2016. Our clients will look to your clients to make good any damage caused to the property as a result of their occupation.

We look forward to hearing from you as to whether your clients wish to enter into the lease by close of business Friday 9 December 2016.

47 The solicitors for David and Anthony responded on 24 February 2017 as follows:

We are now instructed to advise, that on Counsel's advice, our clients are not in a position to enter into any discussion concerning the Lease proposed by your clients as it would not be appropriate for our clients to consider entering into a Lease until the Court has decided the ownership of the relevant properties and the distribution of the relevant estates.

48 The letter from the Executors' dated 1 December 2016 made their position in relation to David and Anthony's continuing occupation of Thompson's pellucidly clear. While acknowledging that David and Anthony had been occupying Thompsons since at least the date of Maureen Brown's death, the Executors gave notice that, should David and Anthony 'wish to remain in occupation of the property' from 1 January 2017, they required 'a formal lease to be entered into with payment of the applicable rent', in the absence of which they 'require[d] vacant possession of Thompsons by 31 December 2016'. Considered in isolation, this constitutes a clear and unequivocal demand that David and Anthony either enter into a lease for their occupation of Thompsons, or give vacant possession of the property within a reasonable time.[18]

49 The Executors each gave evidence that, since 1 January 2017, they have not given any permission for David and Anthony to continue to occupy Thompsons; that no agreement or arrangement has been entered into providing for their continuing occupation of Thompsons; and that no payment from David and Anthony has been received in relation to the occupation of Thompsons. I accept this evidence.

50 The above matters would appear to inexorably lead to the conclusion that David and Anthony's occupation of Thompsons has been unlawful since 1 January 2017. However, David and Anthony sought to resist this conclusion by relying on the contents of a letter dated 26 March 2015 sent to them by the then solicitors for the estate of Maureen Brown. The letter referred to various matters related to the administration of Maureen Brown's estate and, under the heading 'Estate land', stated as follows:

We note that Maher Bros. continue to occupy and use "Thompsons" and that this has been consented to by the executors and the residuary beneficiaries.

It will be necessary that the Maher Bros. livestock be removed from "Thompsons" prior to the property being sold or transferred to any of the beneficiaries. We would expect this to occur some time between July and September.

Accordingly we would be pleased if you could keep this in mind in relation to the location of the Maher Bros. livestock.

51 David and Anthony argued that they had not been wrongfully occupying Thompsons because, by this letter, the Executors and the residuary beneficiaries of the estate of Maureen Brown had authorised them to continue to occupy and use Thompsons until it was sold or transferred to any of the beneficiaries. As neither of those events had come to pass, their occupation of Thompsons was not unlawful and they did not owe any rent in respect of their occupation.

52 By its terms, the letter of 26 March 2015 does not provide a general and ongoing authorisation for David and Anthony to continue to occupy Thompsons until its sale or transfer. It merely notes the fact that, as at 26 March 2015, Maher Bros continued to occupy and use Thompsons and that this had occurred by consent and, in the following paragraph, anticipates that Thompsons would be sold or transferred in the period of July - September (which can only rationally be understood as a reference to the period of July - September 2015). In this way the letter may fairly be said to carry the implication that the Executors consented to David and Anthony continuing to occupy Thompsons until about July - September 2015, when it was expected that the property would be sold or transferred. The letter does not, however, expressly or impliedly convey any ongoing general authorisation for their continuing occupation of Thompsons until whenever the property might be sold or transferred. I agree with the submissions made on behalf of the Executors that the proper construction of the letter is that the Executors were willing to permit David and Anthony to continue to occupy Thompsons rent free until it could be dealt with in the course of the administration of Maureen Brown's estate which was expected to be completed within some months' time; that permission was not open-ended.

53 Further and in any event, the Executors were free to withdraw the permission they gave to David and Anthony in the letter of 26 March 2015. There is no allegation or evidence of consideration moving from David and Anthony in respect of the permission to continue to occupy Thompsons so as to render it an enforceable contract; nor is there any allegation or evidence of a change in position on the part of David and Anthony's reliance upon the letter. Accordingly, the Executors were free to later withdraw the permission given in the letter of 26 March 2015 and demand that David and Anthony either pay for their continuing occupation of Thompsons, or vacate the property. The Executors did this more than 18 months later in the letter from their solicitors dated 1 December 2016.

54 The only other basis advanced by David and Anthony in their closing submissions as to why their continuing occupation of Thompsons was not wrongful was the assertion that 'we were the overholding occupants of the land pursuant to an agreement with Maureen Brown'. Although this claim was not further developed in their submissions, given David and Anthony's status as self-represented litigants, I will deal with it on the basis that it was intended to incorporate the allegations referred to below which were contained in their statement of claim.[19]

55 In their pleadings, David and Anthony allege that, shortly before the death of TP Maher, Maureen Brown said to them words to the effect 'You are not to contest your father's will because I am going to will my land to you', and that they were to 'carry on as you are on the farm until [the TP Maher estate] is all sorted out'. It is also alleged that, shortly thereafter, Maureen Brown said to them, 'I have seen the solicitor and done the paperwork'.

56 David and Anthony allege that, by these statements, Maureen Brown implied that, if they did not take steps to contest the TP Maher will and carried on working on the Maher farm, she would devise and bequeath to them any lands that she owned which comprised the Maher farm. They allege that, after Maureen Brown made these statements, they took no steps to contest the TP Maher will and continued working on the Maher farm in the manner they had done prior to the death of TP Maher and that they proceeded to maintain and improve the lands owned by Maureen Brown.

57 It is apparent from these allegations that, in substance, David and Anthony seek to defeat the Executors' claim in relation to Thompsons on the basis of proprietary estoppel. Relief based on proprietary estoppel is founded on '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 a plaintiff.[20] It has been observed that the equity to be satisfied which grounds a plaintiff's entitlement to relief arises:[21]

... not from the claimant's expectations alone, but from the combination of expectations, detrimental reliance, and the unconscionableness of allowing the benefactor (or the deceased benefactor's estate) to go back on the assurances. ... So with proprietary estoppel the defendant is charged with satisfying the equity which has arisen from the whole sequence of events.

58 In order to make out a case for relief based on proprietary estoppel, David and Anthony must prove that:[22]

(a) they were promised by Maureen Brown that, if they did not challenge the TP Maher will and continued to work on the farm, they would receive ownership of Thompsons by her will;

(b) they acted in reliance upon that promise by not challenging their father's will and continuing to work on the Maher farm;

(c) they acted reasonably in so relying on that promise;

(d) Maureen Brown knew or intended that they would rely on that promise and would not challenge their father's will and would continue to work on the farm; and

(e) they have suffered detriment as a consequence of the failure of Maureen Brown to adhere to her promise.

59 It is unnecessary to examine this claim in detail because there was a paucity of evidence adduced by David and Anthony in support of it. The only evidence which they adduced which was relevant to this claim was the following paragraph which was contained in substantially identical terms in their respective affidavits which they each adopted as their evidence in chief:

On 2 June 1975 my father was involved in a farming accident and died. My mother stated to me, and Anthony words to the effect "You are not to contest your father's will because I am going to will my land to you". Our solicitor at the time, Mr Michael Tehan (he was also the solicitor for my Father's estate and my Mother) told us the words to the effect that we were to "carry on as you are on the farm until it is all sorted out". Following this Anthony and I continued to work the land for Maher Bros, working my mothers and fathers [sic] land to pay all bills, rates and to provide food, clothes and financial income for my mother and for our brothers and sisters for their primary and secondary education, their general needs, wellbeing and for their daily activities.

60 Even if this evidence is sufficient to establish the making of a promise by Maureen Brown as referred to in [58(a)], there is no evidence that David and Anthony acted in reliance upon it by not challenging the TP Maher will and continuing to work on the land. Although David and Anthony gave evidence that they did continue working the land after Maureen Brown made the promise and it was uncontroversial that they did not in fact challenge the TP Maher will, they did not give any evidence as to why they did not challenge the will, or why they continued to work the land. Although one explanation is that they proceeded in this way because of the promise said to have been made by Maureen Brown, that is not the only available explanation. It is not open to the Court to simply assume that David and Anthony acted in reliance upon the promise said to have been made by Maureen Brown. At all times David and Anthony bore the legal burden of proving that they had been induced to rely upon the promises allegedly made by Ma[23]een Brown.23

61 An additional fatal absence in the material before the Court in relation to the proprietary estoppel claim is that there is no basis upon which the Court might find that David and Anthony have suffered detriment as a consequence of Maureen Brown's failure to adhere to her promise. In particular, there is no evidence or analysis which might demonstrate that a challenge to the TP Maher will would have succeeded and that accordingly they have foregone something of value. Nor is there any evidence that David and Anthony have suffered a detriment as a result of having continued to work Maureen Brown's land.

62 In analogous circumstances in Harrison v Harrison, Kaye J (as he then was) undertook an extensive analysis of evidence in order to conclude that the plaintiffs in that proceeding had suffered detriment by failing to challenge their father's will in reliance on representations made by their defendant brother. In that case, the claimants had suffered detriment because they had lost their entitlement to provision from their father's will. This occurred because they failed to make an application for leave out of time as a result of relying on the promises made by their brother. In determining the question, Kaye J made an assessment of whether leave would have been granted for the claimants to bring a proceeding for further provision out of time. His Honour concluded that it would have been.[24] His Honour then made an assessment of the claims the plaintiffs would have then brought, and concluded that provision would have been made for them and assessed the quantum of each likely award. This analysis involved a detailed examination of all the relevant factors under the Administration and Probate Act 1958, in light of the prevailing law and the evidence.

63 No sufficient evidence has been adduced in this case to enable such an analysis to be undertaken in order to conclude that David and Anthony would suffer detriment as a consequence of the failure of Maureen Brown to fulfil the promise she is alleged to have made. It is impermissible for the Court to speculate in relation to that matter.

64 In the circumstances, I accept the submission advanced on behalf of the Executors that David and Anthony have not adduced sufficient evidence to prove the necessary elements of a claim based upon proprietary estoppel. The reliance on such a claim to establish that their continuing occupation of Thompsons has not been unlawful must fail.

65 Although it was not referred to in their closing submissions, David and Anthony's pleaded claims for compensation or damages in relation to maintaining and improving Maureen Brown's lands, including Thompsons, must also fail. No relevant evidence has been adduced and, in any event, the basis upon which such a claim, if substantiated, might provide an entitlement to occupy land, is entirely unclear.

66 For the reasons I have outlined, David and Anthony's continuing occupation of the TP Maher estate lands has been unlawful since 1 December 2019 and their continuing occupation of Thompsons has been unlawful since 1 January 2017. The Administrator and the Executors seek an award of damages in respect of this wrongful occupation.

67 The law relating to the assessment of damages for trespass is well settled. It was summarised in the following way by Kaye J in Lollis v Loulatzis:[25]

Damages awarded for trespass to land are sometimes described as "mesne" profits.[26] The usual measure of such damages is constituted by the value of the market rent for the premises which the trespasser should have paid during the period of the trespasser's occupation of the premises. In order to prove an entitlement to such damages, it is not necessary for the plaintiff to establish that the property has been damaged, or that the plaintiff would have been able, or indeed willing, to lease the premises during the period of the trespass.

His Honour then referred to the authorities which establish that, in order to be entitled to damages, a plaintiff 'is not required to prove that he or she would have or could have leased the property to someone else during the period of the trespass';[27] a plaintiff is prima facie entitled to damages for the trespass calculated as the reasonable rental value of the premises during the relevant period of the trespass.[28]

68 In Sydney Local Health District v Macquarie International Health Clinic Pty Ltd, the Court of Appeal of New South Wales recently examined in detail the history and applicable principles relating to damages for trespass including mesne profits.[29] The Court observed that, in the modern authorities:[30]

... mesne profits have come to be treated not as limited to actual profits made or derived from the unauthorised occupation of the land trespassed upon, but rather as including recompense for the benefit enjoyed by the trespasser from unauthorised possession and usage of land, represented or measured by the rent or hire that could have been but was not charged for that occupation.

Here, the focus is on the benefit to, or expense saved by, the trespassing defendant, with the damages awarded being a proxy for the value of that benefit. Such notional or surrogate rent will be payable whether or not the trespasser's unauthorised possession of the property was "profitable". In this way, maintenance of the label mesne "profits" in this area of discourse may be apt to confuse or at least obscure. It is of some continuing importance, however, in its focus on the benefits (be they profitable or otherwise) which the defendant trespasser has secured or enjoyed from the actual use of the land upon which the trespass has occurred.

69 The Court of Appeal summarised the relevant principles as follows:[31]

First, an abiding feature of the case law concerning damages for mesne profits consequent upon a trespass to land, together with authorities in the analogous context of detinue, is that such damages are for the defendant's actual use or usage of the plaintiff's real or personal property.

....

Secondly, in every case in which damages for or by way of mesne profits have been awarded, they are for the defendant's use of the property in its existing state at the time of the commencement of the trespass. That is entirely logical as a matter of principle because that was the state the property was in when the interference with the plaintiff's right to exclusive possession commenced, and the logic of the remedy is that the plaintiff was entirely out of possession of the property for the duration of the trespass and hence was in no position to change, alter, improve or develop the property.

Thirdly, whilst it is open to a plaintiff to claim damages for trespass by reference to any contractual rights associated with the property in question or indeed business opportunities which may have allowed the development of the property, such damages are only available for actual loss shown, on the balance of probabilities, to have been suffered.

Fourthly, the usual measure of damages for or by way of mesne profits will be the market rent for the premises or for the hire of the goods in their state during the period of the trespass. The calculation of that market rent must have regard to the particular context of the case and characteristics of the property or goods in question, as the variable rent calculated in Inverugie by reference to the holiday season illustrates.

Fifth, whilst the usual measure of damages for or by way of mesne profits will be the market rent for the premises in their state during the period of the trespass, there may be special circumstances associated with the defendant which warrant a departure from this yardstick. Any departure from this yardstick is not, however, at large, but again is tied or limited by the defendant's actual usage of the property in question.

Sixthly, and in a similar vein, the market rent may be conceptualised or influenced by reference to the particular characteristics of the trespasser (see Ashman and Thompson) or the plaintiff (see, for example, Chep's willingness in Bunnings to accept a lower rate of hire for a large customer such as Bunnings).

Seventhly, the particular circumstances of the parties and the property in question may be especially relevant in a case where there is no usual or standard market for the rental or hire of the property in question: see, for example, Roberts and Waugh.

70 The principles to which I have referred make clear that the usual measure of damages by way of mesne profits is the market rent for the relevant property for the period of the trespass. There are no special circumstances which might warrant a departure from this yardstick in the circumstances of this case.

71 David McKenzie, whose expert evidence was relied upon by the Administrator and the Executors, gave evidence about the market rental for the TP Maher estate land and Thompsons. Mr McKenzie is a certified practising valuer with extensive experience in valuing properties, including farming properties. He produced two comprehensive expert reports and was cross-examined by Anthony. Other than tendering into evidence some photographs of the relevant properties, David and Anthony did not adduce any expert evidence as to the market valuation of the relevant properties.

72 Having carefully reviewed Mr McKenzie's expert reports and his oral evidence, I am satisfied that his opinions about the market rental of the relevant properties were well-founded. They were based on a comprehensive review of all relevant information, including comparable rental information, and involved the application of an appropriate valuation methodology. It is significant that his valuations were at or below the lower end of the observed market range of rentals for properties which were broadly comparable to the TP Maher estate land and Thompsons. This reflected the existence of a number of adverse features of the relevant parcels of land, and more generally, the adoption of an appropriately cautious approach to valuation.

73 The matters raised by David and Anthony in seeking to criticise Mr McKenzie's opinions were without substance. Mr McKenzie's inspection of the relevant properties was undertaken in accordance with the orders of the Court. It occurred in a manner which was consistent with appropriate professional standards to enable him to formulate a sufficient understanding about the subject properties for the purposes of deriving a valuation based on market rental values. Mr McKenzie provided good reasons why he did not utilise the 'dry sheep' method of valuation. In identifying comparable rentals, Mr McKenzie had regard to a number of properties and, as I have noted, determined a market rental of the subject properties which was at or below the market range. I see no error in Mr McKenzie taking into account the existence of a large machinery shed on the TP Maher estate lands on the basis that it is a fixture on the land, and therefore properly included in the lettable improvements to the land to be taken into account in assessing the market rental of the property.

74 Mr McKenzie's evidence, which I accept, is that the market rental for the TP Maher estate lands for the period from 1 January 2020 until 22 November 2021[32] was $167,682. An amount of $7,350 is also to be added in respect of the market rental for the month of December 2019. The Administrator in his representative capacity as administrator of the estate of TP Maher is accordingly entitled to damages in the amount of $175,032 for the period of David and Anthony's unlawful occupation of the TP Maher estate lands until 22 November 2021. In accordance with the methodology of calculations set out by Mr McKenzie which I also accept, the daily rental rate for the TP Maher estate lands is $245; the Administrator in his representative capacity is also entitled to damages calculated on that basis for the period from 23 November 2021 until vacant possession of TP Maher estate lands is given.

75 As to Thompsons, I accept Mr McKenzie's evidence that the market rental for the property for the years 2017, 2018, 2019, 2020 and 2021 is a total of $112,652. The Executors in their representative capacity are also entitled to damages based on a market rental for Thompsons of $63.80 per day for the period from 1 January 2022 until vacant possession of Thompsons is given.

76 In addition to orders for damages, for the reasons I have given, the Administrator and the Executors are entitled to orders that David and Anthony give vacant possession of the TP Maher lands and Thompsons respectively. I will grant a stay of 30 days on the operation of orders that David and Anthony give vacant possession.

77 Within 7 days, the parties are to submit proposed orders to give effect to these reasons for judgment.

[2] Being the first plaintiff in this proceeding.

[3] Being the second plaintiff in this proceeding.

[7] With the sons receiving 3 shares for each 1 share received by the daughters.

[8] David and Anthony also brought a claim against Michael Henry Tehan who was a solicitor for the TP Maher estate and/or Maureen Brown. The proceeding against Tehan was dismissed be consent on 15 May 2020.

[9] The orders made on 18 June 2021 required David and Anthony to comply with previous court orders requiring them to file and serve a statement of facts and issues in relation to each proceeding in which they are a plaintiff, a list of witnesses and summary of evidence, and submissions, by 6 July 2021. It may be noted that, although David and Anthony were not legally represented when the self-executing orders were made, they did not later make any application to set aside that order, including when they had retained solicitors and counsel.

[10] The counterclaim was prosecuted at trial by counsel for the remainder beneficiaries who were joined as parties to the proceeding.

[11] The Court made orders dismissing the first counterclaim as against Gerard on 27 July 2021.

[12] The alternative dates are: 27 November 2017; 22 December 2017; 14 August 2018; 14 days after 11 October 2019; or 25 November 2019.

[13] Kuru v New South Wales [2008] HCA 26; (2008) 236 CLR 1, 14 [43].

[14] Minister of Health v Bellotti [1944] KB 298, 305-306.

[15] The Administrator did, however, acknowledge that David and Anthony had paid the rates on the TP Maher estate land and had also paid some costs associated with fencing works on the land.

[16] See [24(d)] above.

[17] In their particulars to the claim, David and Anthony stated that at least 43% of the value of the estate is subject to this claim, this proportion being the proportion of the value of the estate represented by the combined amount of Federal and State death duties which were paid.

[18] For completeness, I also note that, on 24 August 2021, the Executors' solicitors wrote to David and Anthony's then solicitors and demanded that David and Anthony give vacant possession of Thompsons within 30 days.

[19] Although, as I have noted, the claims made by David and Anthony in their statement of claim were struck out, the allegations therein which are summarised above were referred to in their defence to the Executors' counterclaim.

[20] Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101, 112.

[21] Jennings v Rice [2002] EWCA Civ 159, 49, referred to by Kaye J in Harrison v Harrison [2011] VSC 459, [382].

[22] See Kaye J in Harrison v Harrison [2011] VSC 459, [371] ('Harrison').

[23] Sidhu v Van Dyke (2014) 251 CLR 505, [61].

[24] Harrison (n 22) [287]-[303].

[25] [2007] VSC 547, [219].

[26] Wilson v Kelly [1957] VicRp 19; [1957] VR 147, 152.

[27] Lollis v Loulatzis [2007] VSC 547, [220].

[29] (2020) 105 NSWLR 325.

[32] The first day on which Mr McKenzie gave evidence at trial.