Pearson v Williams [2001] VSC 509

5. Donald Ross Pearson ("Ross") is the husband of Marjorie Pearson ("Marjorie"). He is aged 58 having been born on 7 September 1943. They married on 24 January 1970.

8. Timothy Pearson ("Tim"), born 17 August 1974, is the adopted son of Ross and Marjorie Pearson. He has an adopted sister, Angela, who is a little younger.

11. Marjorie is the sister of Frances Williams ("Frances").

14. Frances and Marjorie are the daughters of Thomas and Marjorie Cashin. The daughters were born respectively on 31 August 1944 and 17 October 1947.

17. Thomas Cashin died 16 December 1985. He left a will dated 7 September 1978.

20. Marjorie Cashin died 7 July 1996. She left a will dated 15 July 1992.

23. At all times until 5 February 2000 Frances was a single woman. But on that day she married Trevor Williams, a retired Uniting Church Minister who had been widowed in December 1998. They had announced their engagement to Ross, Marjorie, Timothy and his wife at a birthday party for Frances held on 27 August 1999. Until Frances' marriage, and after her parent's deaths, Marjorie was Frances' closest living relative. Tim was and remains her only nephew and Angela her only niece.

27. The proceeding concerns farming land at Middle Tarwin in South Gippsland ("the land"), together with a business constituted by beef cattle run on that land and pertinent plant and equipment ("the business"). It further concerns work done on the land by Ross and Tim.

30. The land consists of the following properties:

38. Each of Home Farm and Macs is on one Certificate of Title. Days, Dunlops and The Bush are each on two Titles.

41. Home Farm and Macs adjoin. In all they amount to 293 acres. The Bush and Dunlops adjoin. In all they comprise 1262 acres. Days alone has a Tarwin River frontage. It is 184 acres in area.

44. The evidence shows that the properties are heavy carrying and extremely well improved. There are yards on each of Dunlops, Home Farm and Days. There is shedding on Dunlops. Water for Dunlops is reticulated from a storage on The Bush. The fencing is first rate. There is electrification of fencing using solar powered energisers. A concrete silage bunker has been erected on The Bush. At one stage it was used in a type of lot-feeding programme. The pastures are highly improved. There has been regular and considerable application of fertiliser.

47. Testimony to the state of improvement of the land, as well as to stock management, is the fact that some 2000 beef cattle, including breeding cows, are now run on the properties and a leased property of 340 acres known as "Nisa Bula". Further testimony to the state of improvement of the land, as well as to stock management, is the fact that the stock for a long time have made premium prices. Presently bullocks are sold to the Jap Ox and European markets.

51. Frances and Marjorie are registered as the proprietors as tenants in common in equal shares of the five properties. They also own the stock, plant and equipment as tenants in common in equal shares.

Earlier Ownership and Disposition of the Land; Dispositions of Business Property

55. At the times of Mr Cashin's death in December 1985 he was the registered proprietor of Home Farm, Macs and The Bush.

58. He and his wife were registered proprietors as tenants in common of Days and Dunlops.

61. He and his wife conducted the business in partnership as equal partners.

64. By his will dated 7 September 1978 he appointed his wife and daughters his executrices and trustees. He bequeathed his interest in his stock to his daughters as tenants in common in equal shares. He bequeathed his interest in plant, vehicles and effects used in the farming partnership to Marjorie. He gave a life interest in a property at 7 McDonald Street, Leongatha to his widow, with the property or proceeds of sale to go to Frances absolutely on the death of his widow. He and his wife, it is here convenient to note, had lived at 7 McDonald Street for a considerable period before his death.

67. He provided, as to the balance of his real estate, that subject to his trustees exercising power of sale it be held for his daughters as tenants in common in equal shares. If a daughter predeceased him, but left a child or children, then that daughter's share was to go to such child, or, if there was more than one child, to the children in equal shares.

70. In the event, neither of his daughters predeceased Mr Cashin. When his estate was wound up the situation was this (remembering that interests were held as tenants in common):

74. Mrs Cashin's last will was made, as I said earlier, on 15 July 1992. At that time, and at her death in July 1996, the farming partnership which had in Mr Cashin's life been carried on between he and his wife had been superseded by partnership in which the partners were Mrs Cashin, Frances and Marjorie. There had been a period in which the farming business had been carried on by Mr Cashin's estate and Mrs Cashin in partnership. That period had ended in mid-1988.

77. By her will Mrs Cashin appointed her daughters her executrices and trustees. She made small specific bequests to each of Tim and Angela. She left a property at 5 McDonald Street, Leongatha to Frances. She left the balance of her real property - critically her interest in Dunlops and Days - to Frances and Marjorie as tenants in common in equal shares. She left the residue of her estate - which thus included her interests in partnership stock and plant and equipment - to her daughters as tenants in common in equal shares. Her will, in substance, resulted in the situation being as follows:

all land owned by Frances and Marjorie as tenants in common in equal shares

owned by Frances and Marjorie as tenants in common in equal shares

81. After Mrs Cashin's death a farming partnership was constituted by Frances and Marjorie. It continued until 30 June 2000. On that day it was dissolved, as Frances claimed, by notice first given on 27 August 1999 and on several occasions thereafter.

84. A dispute arose between Frances and Marjorie concerning dissolution of the partnership. Frances commenced a proceeding against Marjorie in this Court on 29 June 2000[1]. That proceeding was settled very shortly before trial. The Terms of Settlement were said to be of some significance to the present proceeding. I will refer to them later.

The Work done by Ross and Tim Generally Described

88. Ross went to work on the Cashin properties in about July 1969. He was then aged 26. He had been brought up on a dairy farm at Dumbalk, and after leaving school he had worked in dairying until leaving to go to work for Mr Cashin.

91. Since 1969 Ross has worked continuously on the properties. Over the years his work assumed a more managerial role. After Mr Cashin's death he formally assumed the title of manager. But throughout his work has involved daily hands-on activity. He has worked, specifically since Mr Cashin's death, very hard and innovatively for very long hours, for less than adequate wages, without taking proper holidays, and without any provision of long service leave. He has done so despite a heart attack leading on to cardiac surgery in early 1996[2].

94. From a young age Tim was encouraged into farming activities by his grandfather. Nothing could have been more natural. He was the only male available to carry on the farming operations in which the Cashin family had engaged at Middle Tarwin over a very long period of time.

97. Tim showed an aptitude for farming. As a child, he built up his own herd, starting off with orphaned calves. By the time he left school it was certain, I consider, that his future lay in farming.

100. Tim began employment by the partnership[3] in early 1992. He was then aged 17. He continued to work for the partnership, as it was constituted from time to time, until its dissolution on 30 June 2000.

103. I am abundantly satisfied that throughout the period between January 1992 and June 2000 Tim worked very hard and very efficiently for very long hours and for very low wages. He had little in the way of holidays. He learned much from his father. His responsibilities increased over the years. He assumed particular responsibility for a period following the heart attack suffered by his father in March 1996. It is clear that he managed his increasing responsibilities, and the period of particular responsibility following his father's heart attack, very well.

106. It is, I think, pretty remarkable that Ross, and later he and his son, have conducted so large a farming operation so well, and with a minimum of assistance, over the period since Mr Cashin's death.

An Expectation that one day the Land and Business would all be inherited by Tim

110. I am abundantly satisfied, for reasons which I shall later set out, that from a time soon after Mr Cashin's death Ross had an expectation, which he continued to hold until at least the birthday announcement of August 1999, that one day all the land, stock and plant would be inherited by Tim. I am further satisfied to the same degree that Tim was of the same expectation even before he commenced paid work for the then partnership in early 1992; and that he held such expectation until at least the birthday announcement.

113. The expectation held by Ross and Tim was founded on things said by Marjorie and Frances, but particularly Frances. I say "particularly Frances" because it was never in doubt that Tim would in time inherit his mother's interest in the land and business. That left Frances, who acquired an interest in the land and stock upon her father's death; and who was, in practical terms, certain to supplement that interest when Mrs Cashin died.

116. Frances, according to the plaintiffs' claim, repeatedly represented after her father's death that, in substance, Tim would inherit her interest in the land and business; this leading inevitably in the circumstances to the consequence that one day he would inherit all the land and the business. Indeed, according to the plaintiffs' case the representation was for the most part couched in those terms.

119. As will later appear, I am satisfied that Frances did make many representations[4] along the lines alleged by the plaintiffs; and I am also satisfied that they were a cause of the plaintiffs forming the pertinent expectation.

123. I am satisfied that from the time of her father's death in 1985 until what I have called the birthday announcement in August 1999 Frances firmly intended that Tim should one day inherit whatever interest she held in the land and business at the time of her death. She did not always intend during that period that Tim be her immediate beneficiary. In a moment I will refer to her successive wills, which make the point. But certainly her intention was that, so far as it was within her capacity to bring it about, one day Tim would inherit all the land and business. Her firm intention was wholly consistent with her repeated representations, to the detail of which I shall later refer.

126. Commencing with the birthday announcement - which pertinently conveyed an intention of dissolving the partnership - and continued by her later insistence that the partnership be dissolved and by the content of her will dated 4 January 2000, Frances disavowed her previous intention, reflected by the representations which she had made. The position which Frances has adopted since August 1999 was unreservedly repeated by her in evidence at trial. As matters stand, then, Tim will not inherit - partly from his mother and partly from Frances - all the land and the business. The most that he can hope for is to inherit so much of the land and business as his mother retains after dissolution of the partnership has been completed.

130. It is now convenient to chart the intended dispositions disclosed by the sisters' wills. They show Marjorie's continuity of intent, and Frances' change of position.

134. Wills made by Marjorie bearing the following dates went into evidence: 16 June 1992[5], 14 August 1998[6] and 14 May 1999[7]. There was thus no will in evidence whose date preceded the date of Mr Cashin's death. But nothing turns on that.

137. By her 1992 will, prepared by Mr Hanrahan, solicitor to the estate of Mr Cashin and friend of Frances, Marjorie appointed Ross her executor and testamentary guardian of her children; or, if he predeceased her (or died before her estate was fully administered) then Frances as executrix and guardian. She left Nisa Bula to Ross.[8] She left a life interest in her share of the Cashin land and the business to Ross, with Tim to take absolutely after Ross' death so soon as he attained (if he had not already attained) the age of 25.

140. By her 1998 and 1999 wills the essential pattern of the 1992 will was retained; see clauses 4, 5(a) and 6. A specific provision addressed what might be thought to be an imbalance in the dispositions to Tim and his sister; see clause 11.

143. Marjorie's overall intention concerning the land and the farming business over the period spanned by these wills was clear: Nisa Bula was to be left to her husband. Her share in the Cashin land and the business, together with any share in such land and business left to her by Frances, was to go to Tim.

146. Marjorie, as I have said, is a defendant to the proceeding. But in name only. She adheres to her intention that Tim should inherit whatever interest she has at the time of her death in the land and business.

150. Wills made by Frances bearing the following dates went into evidence: 16 June 1992[9], 5 August 1997[10], 22 May 1998[11], and, 4 January 2000[12]. Each of the wills, and a codicil dated 21 September 1999[13], was prepared and its execution was witnessed by Mr Hanrahan.

153. By her 1992 will Frances appointed Marjorie and Ross as her executors and trustees. She made small specific bequests - eight in all, totalling $7,000. She gave all her rural real estate and her interest in the farming business to Marjorie absolutely; or if Marjorie predeceased her then to Tim on his attaining the age of 25 years. She gave the residue of her estate to Angela, Tim's sister.

156. By her 1997 will, made about 14 months after her mother's death, Frances appointed a different executor and trustee. Importantly, with respect to her rural land and her interest in the business, she provided that Tim should take absolutely at age 25. Marjorie was thus written out of the will.

159. By her 1998 will a change was made whereby the vesting age for Tim (and Angela) became 30 in lieu of 25.

162. The codicil made on 21 September 1999, that is, not long after Frances and Mr Williams had announced both their engagement and Frances' intention to withdraw from the farming partnership, saw the appearance of Mr Williams as a beneficiary - of Frances' stocks, shares, notes and debentures in any company.

165. The will of 4 January 2000 was expressly made in contemplation of marriage. It undoubtedly made radical changes to what had gone before. Frances appointed Mr Williams as a joint executor. She made 14 specific monetary bequests. They totalling $925,000. They included gifts of $300,000 to the Royal Victoria Eye and Ear Hospital, $200,000 to the Uniting Church in Australia, Melbourne, $200,000 to the Cairnmillar Institute (an organisation set up or conducted by Dr Francis McNab, a man prominent in the Uniting Church), $100,000 to Mr Williams, and $10,000 to each of Tim, Angela and their children and the children of Mr Williams who attained the age of 18.

168. The will further provided that Frances' residuary estate be held on trust to be applied, in her trustees' absolute discretion, for the maintenance, education advancement and benefit of any one or more of Tim, Angela and their children for a ten year period, with the balance of capital and income then to be distributed to one or more of the institutions named as specific beneficiaries.

171. Depending upon the trustees' exercise of discretion, then, it could be the case, assuming Tim outlives Frances, that he will obtain under her will of January 2000 simply the sum of $10,000.

174. In an affidavit sworn 24 October 2000, upon which she was relevantly cross-examined, Frances deposed that she had made a new will which "still makes provision for Tim and Angela but not in the same terms as in my previous will". She exhibited part only of her 2000 will to that affidavit. In evidence she gave an explanation why she had done so.

177. I consider that each of the language of the affidavit and the explanation were disingenuous. That said, the objective facts are clear. It is impossible to regard Frances' will of January 2000 as other than making a vast change in the status quo.

180. It is convenient before passing on to refer to evidence given by Frances as to why she disinherited her sister by her 1997 will; and as to why she altered the vesting age, so far as Tim was concerned, by her 1998 will. Frances said that she did the former because she was upset by her sister's conduct in requiring her to buy a share in her late father's interest in the plant and equipment. She felt that she could no longer trust Marjorie completely[14]. She said that she did the latter because of unease about Tim's marriage. She wanted to protect him.[15]

183. Whether the reasons which Frances gave should be accepted is not critical to determination of this matter. But I am inclined to accept both, and to think that they reflected her determination that Tim should receive her share of the land and her share of the business.

186. Concerning the first change, Frances said that she "began to wonder what else could happen and so I thought I would do what I did to protect... my inheritance". It is, I think, far fetched to imagine that Marjorie would ever have altered her will so as to deprive Tim of any interest in the land and business left to her by Frances. I find it hard to imagine that Frances could have believed that Marjorie's conduct concerning the plant and equipment[16] suggested the possibility of behaviour which was entirely inconsistent with Marjorie's oft-repeated position with respect to the land and the business. If Frances held no such belief then the change should be regarded, I think, as secretly vindictive. Strange though her explanation was, I am, as I say, on balance disposed to accept it.

189. Concerning the second change, there is not the slightest evidence that in 1998 there was any problem with Tim's marriage. But that is not to say that Frances did not perceive that there was or might be some problem; or that she did not have some doubts generally about the permanence of marriage amongst young people today. I am prepared to accept that she had some concerns. In that context her change to the vesting age should be seen as designed to ensure that Tim should receive and should not be deprived of any part of her interest in the land and business. It might be said that Frances' explanation was specific for Tim; yet in Angela's case also the vesting age had been altered. So, it might be argued, the explanation was unlikely to be the truth of the matter. Neither of those propositions was in fact advanced. Had they been, I should have thought that the likely explanation was symmetry.

The Claim Generally Described. The Principles which apply

193. The nature of this proceeding, against the backdrop of the circumstances so far described, can now be outlined.

196. By their Further Amended Statement of Claim ("the statement of claim") the plaintiffs lay their claim in a number of ways. Not all of them were pursued at trial. Those that were pursued were not all pursued exactly as they were pleaded. I deal with the case as it was finally articulated - about which there was no room for doubt.

199. The plaintiffs' main contentions at trial were essentially these:

(1) Frances, after her father's death in December 1985, represented, promised and/or induced or encouraged the assumption and expectation in Ross and Tim that the land and business would always remain in the family, and that her interest therein would ultimately be inherited by Tim.

(2) Ross from the time of Mr Cashin's death, and Tim from early 1992, worked on the farms in the way they did and for the remuneration they did, and acted or eschewed from acting in other ways, in reliance upon the assumption or expectation that Frances' interest would ultimately be inherited by Tim.

(3) In so doing Ross and Tim each acted to their substantial detriment, measurable not simply by events which had occurred, but also by the consequences to them if that assumption or expectation was not fulfilled.

(4) Frances knew or intended that Ross and Tim would act or abstain from acting in reliance on that assumption or expectation.

(5) In the circumstances Frances' conduct was unconscionable. She should be estopped from denying that Tim was entitled to become the ultimate owner of her interest in the land and business. A constructive trust should be erected, it being declared that Frances held her interest in the land and business on trust for Tim. To bring finality to the matter, an order should be made for the conveyance of her interest in the land to Tim; and an order for the disposition of her interest in the business.

205. The plaintiffs pursued other claims at trial; though not unconditionally. First, each of them raised a claim for equitable compensation. So far as Ross is concerned, the claim was one for long service leave provision, unused annual leave, damage to personal tools used in partnership activities, personal and motor vehicle expenses, persistent under-remuneration and consequential loss of opportunity. So far as Tim is concerned, the claim was one for pro-rata long service leave provision, unused annual leave, the value to the partnership of a tractor owned by Tim and operated by him in partnership work, and persistent under-remuneration.

208. Second, each of the plaintiffs raised, in part alternatively to the claim for equitable compensation, a claim based upon alleged contractual entitlement. It was confined in each instance to a claim for (pro-rata) long service leave and for unused annual leave.

211. Having said that the plaintiffs raised claims additional to what was evidently the main claim I should add that counsel for Ross specifically abandoned his client's claim both to equitable and contractual damages in the event that a constructive trust was impressed in favour of Tim. He made it clear that it was his client's predominant concern that Tim obtain the promised interest in the land and business. Further, counsel abandoned Tim's money claims in the event that a constructive trust was impressed.

214. The principles which apply in a case such as the present have been recently discussed and applied in Giumelli and Anor v Giumelli[17]; Flinn v Flinn and Anor[18]; Gillett v Holt[19]; and Rogers v Rogers[20]. For the most part those principles were not in dispute. I should highlight some of them.

217. First, the relief primarily sought by the plaintiffs is the erection of a constructive trust. The connotation of that term in a case of the present kind was explained in the majority judgment in Giumelli[21].

220. Second, in such cases the constructive trust, proprietary in nature, is founded in an equity which arises from an assumption or expectation as to the future acquisition of ownership of property which has been induced by representations upon which there has been detrimental reliance by the plaintiff.[22]

223. Third, equity is relevantly concerned to prevent unconscionable conduct on the part of the defendant. That is why, if a plaintiff is to succeed in such a case, something more is needed than simply a promise or representation in reliance upon which acts are done or omitted to be done. The "something more" may take the form of creation or encouragement of an assumption or expectation that the promise will be performed or representation made good; and reliance upon that assumption or expectation.

226. Fourth, depending on the circumstances, a promise to leave property by a will is to be understood to be a promise not of making a revocable testamentary instrument, but of a gift by will taking effect on death.[23]

229. Fifth, in considering whether a promise or representation is capable of founding an estoppel, as being sufficiently certain, the authorities exhibit a liberal approach.[24]

232. Sixth, reliance or inducement must be established. But it is not necessary to show that the promises or representations relied upon were the sole cause of particular action or inaction. It is enough if they were an inducement. Moreover, a "commonsense and rebuttable presumption of fact" may arise "from the natural tendency of a promise"[25].

235. Seventh, detriment is an essential ingredient of proprietary estoppel. But what will constitute detriment? In Gillett, Robert Walker LJ said this:

"But the authorities also show that it is not a narrow or technical concept. The detriment need not consist of the expenditure of money or other quantifiable financial detriment, so long as it is something substantial. The requirement must be approached as part of a broad inquiry as to whether repudiation of an assurance is or is not unconscionable in all the circumstances."

"There must be sufficient causal link between the assurance relied on and the detriment asserted. The issue of detriment must be judged at the moment when the person who has given the assurance seeks to go back on it. Whether the detriment is sufficiently substantial is to be tested by whether it would be unjust or inequitable to allow the assurance to be disregarded - that is, again, the essential test of unconscionability.[26]

"the real detriment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumption were deserted that led to it."[27]

What his Honour said aligns with observations in the majority judgment in Giumelli[28] approving the approach of Rowland J, sitting in the Full Court of the Supreme Court of Western Australia. Rowland J had said that even if the plaintiff had not suffered an appreciable loss of income by remaining in a farming partnership over a period of years in reliance on the defendants' representations, the detriment suffered by him was the loss of the property which he worked to improve, not to obtain immediate income but to gain the proprietary interest. For that, he gave up the opportunity of a different career path.

246. Eighth, in determining what relief should be granted (if relief is appropriate) the court must look closely at the circumstances of the particular case to see in what way the equity can be satisfied. It should approach the matter cautiously, in order to achieve the "minimum equity to do justice to the plaintiff"[29]. Clear it is that the court is not precluded from requiring the party stopped to make good the assumption. On the particular facts, such an order was made in Flinn and (in substance) in Gillett. But, on the particular facts, it was otherwise in Giumelli and in Rogers.

249. Ninth, in moulding an order the Court should deal with the situation, including detriment suffered, as it exists when the order is formulated. So, in the present case, the Court was urged by counsel for Frances to take into account the effect of the very late settlement of the partnership dispute - it giving Marjorie the opportunity of acquiring partnership assets, particularly Frances' interest in the land and stock, at values applying as at 30 June 2000.

252. Thus far I have dealt with principles disclosed by the authorities. I must mention two further matters. One was in dispute, the other not. I deal first with the matter which was in dispute.

255. In the course of his final address counsel for Frances made a considerable number of submissions referring to lack of demonstrated benefits accruing to his client in consequence of the impugned representations. So, he submitted that Frances did not make the statements "to induce Ross or Tim to act for her benefit or their detriment"; and that it had not been argued for the plaintiffs "that she made the statements for the purposes of inducing the plaintiffs to act to give her such a benefit"[30]. He referred to detriment alleged by the plaintiffs, and asked rhetorically: "What benefits is it said that Frances unconscionably seeks to retain"[31]. He analysed certain evidence with a view of showing that in fact his client had not obtained much of a return on her capital investment between 1986 and 2000.

258. Pressed by me, counsel at first conceded that benefit to his client was not a matter essential of proof by the plaintiffs. Nonetheless, it was "one of the matters in the round"[32]. It was to be found, explicitly or sub silentio, in the cases. Later he submitted that whilst it might not be an essential element in every case, it was important in determining whether the conduct was unconscionable[33].

261. Counsel for the plaintiffs submitted that there was nothing in the authorities to say that for every detriment there must be a corresponding benefit. This was not a contract case turning upon the presence or absence of consideration. What was relevant was detriment to the plaintiffs. But in any event, counsel contended, if benefit was pertinent, then benefit to Frances there had been.

264. In some of the cases it is clear enough that detriment occasioned by a plaintiff has been mirrored by benefit accruing to a defendant. In Rogers, Hansen J said that "Benefit to the defendant provides a mirror image of detriment suffered by the plaintiff[34]. His Honour then analysed benefit which accrued to the defendant in that case.

267. It can be said to be the situation, I think, that in some, perhaps many, cases detriment suffered by a plaintiff will be reflected in benefit accruing to a defendant. I think it is not unreasonable to say that detriment may more readily be detected if there is corresponding benefit; and that benefit for a defendant at the expense of or detriment to a plaintiff may underline the unconscionable character of a particular defendant's conduct. But I doubt that detriment will always be mirrored by benefit. At least that is so unless benefit be given a very wide meaning. Further than that, I think there is no authority for the proposition that a finding of unconscionability depends upon proof of both detriment and corresponding benefit.

270. I go to the further matter which was not in dispute. Although Ross is a plaintiff, no question of a constructive trust being declared in his favour arises. Rather, the plaintiffs contend that conduct by Ross to his detriment in reliance on the expectation that Tim was to inherit Frances' interest in the farming land and business constitutes part of the circumstances by which it would be unconscionable if Frances were not now held to the expectation which she created.

273. It was not submitted for Frances that a claim so pleaded and developed was conceptually flawed. I think there have been other cases in which such a claim has in substance been raised.[35] Having regard to the way in which the claim was pleaded, and the trial conducted, I will assume that the main claim as formulated, so far as it pertains to Ross, was legally tenable.

The Leading Witnesses: Credibility and Reliability

277. Having set out some of the circumstances of the matter, the claims raised by the plaintiffs and the applicable principles, I must address matters which were in dispute at trial. But before doing so I should say something about the credibility and reliability of the leading witnesses.

280. Rarely have I encountered a proceeding in which the advantage of seeing and hearing the leading witnesses was more strongly apparent than in this matter. The following is my assessment of those witnesses expressed in the order in which they gave evidence.

86 Ross Pearson impressed me as a man proud of his hard work and his achievements and proud of his son's development as a farmer. He further impressed me as a man who felt wronged by what Frances had done. From his perspective, Frances had committed herself over a long period to leaving her interest in the land and business to Tim; and had then reneged. His recollection of when Frances had allegedly made a disputed statement of intent at a meeting held in Mr Hanrahan's office in 1986 involved reconstruction; but I reject the submission made for Frances that the attributed statement was a belated invention. I think it likely that Ross has an animus against the Reverend Williams. I conclude that he attributed to Mr William's a remark - at the birthday party held on 27 August 1999 - which in terms Mr Williams did not make. But I conclude that a remark was made whose effect was not much different to the remark attributed to Mr Williams by Ross. In all, despite his feelings adverse to Frances and Mr Williams, I consider that Ross was a credible and generally reliable witness. I add that I am very confident that his evidence as to what he and Tim did over the years on and concerning the farm was unimpeachable.

87 Marjorie Pearson impressed me as a woman devoted to her husband, her son and retention of what she sees as the family farm. I do not doubt that she harbours very strong feelings against her sister, whom she sees as someone who has obtained certain advantages in family dispositions which she has not earned. I think that this attitude was reflected in her suggestion to Frances that the latter's loan to the partnership be paid out and that the partnership refinance at a lower rate of interest (Frances would certainly have received a lower rate of interest at the time had she been forced to reinvest) and in her requirement that Frances buy - albeit at 1986 values - 50% of the interest in plant and machinery left her by their late father.

285. It is, I think, also very clear that Marjorie feels betrayed by what Frances did in retiring from the partnership and changing her will.

288. The question arises whether Marjorie's evidence should be accepted generally, and in particular in those instances where it conflicted with, or at least was at odds with, the evidence of Frances or the evidence of Mr Hanrahan. Not without some doubt, I think that the answer to that question is for the most part yes. The matter that has caused me most doubt is the statement of intention attributed by Marjorie to Frances at a meeting in Mr Hanrahan's office in 1986. In the end I conclude, see these Reasons elsewhere, that such a statement was made - although contrary to Marjorie's evidence the meeting was not held on 31 January 1986. I should add that I have been careful to consider whether Marjorie overstated the plaintiffs' case in her evidence. In the end I have concluded that she did not do so. In almost every instance the evidence which she gave was compatible with other evidence - whether viva voce or documentary.

291. My impression of Tim Pearson was an entirely favourable one. I formed a clear conclusion that his evidence was reliable and credible. That conclusion requires no elaboration.

91 Frances Williams: Counsel for Frances pressed upon me a conclusion that his client was a truthful person who had been honest in saying what she could and could not remember. She had been liberal in describing other witnesses as truthful people.

295. I can accept some of what counsel submitted, but I did not form a favourable impression of Mrs Williams as a witness. I was not generally impressed by the reliability of her evidence. Her credibility suffered. I should say a little about those conclusions.

298. Mrs Williams portrayed herself as a soft person, easy prey for her sister and her brother-in-law, a person who remained a farming partner only because her late mother would not quit the business, a person who was without sufficient strength, until Mr Williams came along, to retire from the business even after her late mother's death.

301. Having listened carefully to Mrs Williams' evidence, and observed her giving it, I think that her self-portrayal was far from accurate. That is so despite evidence given by Marjorie and Ross to the effect that Frances is a more sensitive, emotional person that her sister. I think that she was very ready to cry when a difficult point developed in the course of her evidence.

304. I next consider that Frances' revealed conduct towards her sister over the years was quite hard when her interests were concerned. One example is her attitude when the question of refinancing her loan to the business arose. Again, I think that she overstated her selflessness in making loans to her parents when they faced hard times in the late 1970s. It emerged, though there had been no hint of it in examination in chief, that she had been paid interest throughout at a substantial rate. Further, although she made a point of saying that she had never disagreed with a suggested wage rise for Ross or Tim, she seems to have been content that over a long period of time the two of them had very little in the way of holidays. Of that circumstance, as bookkeeper, she could hardly have been unaware. Had holidays been taken, replacement labour would likely have been a consideration; and for holidays a premium on wages would have been or was likely to have been payable.

307. Concerning the business books, and it reflects upon Frances' alleged frailty, I should also observe that within hours of her father's death, though much affected, as she told me, she told her sister and Ross that she would take the books. She did so, and she continued to keep them. That businesslike approach was pursued, I note, in the letter of 30 December 1985 which she wrote to Mr Hanrahan, replete with its comment that: "I don't mind paying tax, I just hate giving the government interest free loans"[36].

310. Concerning Mrs Williams' evidence that there was always a reason why she could not quit the partnership until Mr Williams appeared on the scene, a matter bearing upon her alleged frailty, her initial evidence was that her mother wished to stay, and that her father had said that she not leave unless her mother would do so. That evidence did not extend to the period after her mother's death. About that period, in evidence in chief, she said nothing. It was when I brought the matter up that she burst into tears and then told me that she lacked the strength to act. I thought that her evidence upon the matter was unimpressive. It sat uneasily with the wills which she made in 1997 and 1988. So far as the period up to her mother's death is concerned, I must say that I regard her evidence as pretty improbable. Mrs Cashin came off the land, had been in a farming partnership with her mother, had an extant will which assumed a continuing interest in the land and the farming business, was the mother of a daughter whose husband was working tirelessly to improve the business, and was the grand-mother of a boy who had already shown an aptitude for farming. All these circumstances - with the possible exception of the contents of the will - were known to Mr Cashin. I think that it is scarcely conceivable that he would have spoken with Frances in a way that committed her to staying in the partnership unless her mother would quit it.

98 Mr Hanrahan, the solicitor, gave very little evidence of importance. It was really confined to the question whether Frances made the statement of intention attributed to her by Ross and Marjorie at a meeting held in 1986. He said that no such statement had been made. He was vigorously cross-examined to suggest that he had an emotional attachment to Frances; and that he was privy to communications with Frances which were susceptible of compromising performance of his professional responsibilities to the executrices of Mr Cashin's estate. So, it was contended, his evidence was unreliable, his credibility affected.

314. I have no doubt that Frances fostered a relationship with Mr Hanrahan; and that she imparted confidences to him. It was not disputed that he became her friend. Indeed, he spoke at her wedding many years later.

317. I do not conclude that Mr Hanrahan's friendship with Frances caused him to give deliberately untruthful evidence. But I think it is very clear, having listened carefully to his evidence, that in truth he had no independent recollection of any of the three meetings that were held in the first half of 1986. His evidence that there was no pertinent statement of intention depended upon a recollection which I am satisfied he did not have. Even if there was not the prospect that something was said at a meeting whilst he was temporarily absent, I would not in the circumstances accept his reconstructed recollection.

321. According to the plaintiffs' case, as I have said, Frances and Marjorie represented, induced and/or encouraged the assumption and expectation in Ross and Tim that the farming land and business would on the death of Frances and Marjorie be inherited by Tim.[37]

324. Evidence supporting the making of representations by Frances was given by Ross and Marjorie, Tim, Mr Morris-Thomas, Mr Cope, Mr Dunlop, Ms Wilson, Mrs Murdica and Mr Perrett. There is no doubt in my mind that most of the alleged representations were made. Indeed, the contrary was not argued by Frances' counsel. The evidence revealed, however, some areas of dispute. They must be resolved.

327. Although the plaintiffs sought relief against both Frances and Marjorie, I have already noted that Marjorie supported the plaintiffs' claims, and that through counsel she agreed to abide the Court's decision. For that reason I will concentrate upon the representations allegedly made by Frances.

330. As will appear, some of the representations which I find that Frances made were made to persons who did not communicate them either to any of Marjorie, Ross or Tim. The suggested significance of those representations was that they made it more likely that other disputed representations along similar lines were in fact made. That was the way in which counsel for the plaintiffs sought to use them in final address. Counsel for Frances did not challenge their use in that way. I will assume that they were capable of such use, without exploring the basis or bases upon which that might be so. In the event, I have not found it necessary to rely upon them to resolve any disputed incidents.

333. Some representations, as I find, were made to Marjorie and Ross; others were repeated to Marjorie. Neither Marjorie nor Ross claimed that they transmitted the detail of each such representation to Tim. If they had given evidence that they had done so I would not have believed them. The picture created by their evidence was rather one of Tim from time to time being told by his parents, not in a formal way, that in due course - that is, when his grandmother, mother and aunt died - the land and business would be his; communications supplemented by direct conversation with his aunt on several occasions.

336. Against the background of those observations, I turn to the detail of the alleged representations:

A. Representations allegedly made to Ross, Marjorie and third persons

342. According to Ross, Frances said on a number of occasions, soon after Mr Cashin's death, whilst watching stock being loaded for sale, that the business would be continuing as before[38]. Marjorie's evidence was that firstly at the stockyards one or two weeks after their father's death, and again thereafter:

"Words just came out of mouths. `Aren't we so lucky now, Frances? Aren't we so lucky to have a grandson to keep this going, to carry on', and that kept kept coming on and on."[39]

Frances' evidence was that she could imagine her mother saying something along the lines attributed to her by Marjorie, though, she couldn't recall it precisely. She said nothing about her contribution to any conversation.

347. I consider it very likely that each of Mrs Cashin and Frances said what was attributed to them. I think that Frances said nothing to suggest that her mother's vision of Tim as the person who would ultimately carry on the business - albeit that he was then aged only 11 - was not a vision that she shared.

350. In the overall scheme of things whatever Frances then said or acquiesced in by silence does not loom large. What she herself said was no more than a statement of fact. The partnership was bound to continue for a period at least - until Mr Cashin's estate was wound up.

354. Marjorie gave evidence that shortly after her father's death Frances told her about a conversation with a local stock and station agent, Peter Dwyer. According to Marjorie, Frances told her that Mr Dwyer had warned her that other agents would be wanting partnership business and wanting to sell the land; and that she had told Mr Dwyer, concerning the land: "They have no hope, we are not selling any land, we are keeping it for Tim."[40]

357. Frances gave evidence that she had spoken to Mr Dwyer. They had spoken about the prospect of other agents seeking to sell partnership cattle. The company for which Mr Dwyer worked had sold Cashin cattle for more than 50 years. She did not recall speaking with him about the land; so she would not have said what was attributed to her in that context.[41]

360. I think that Marjorie's evidence should be accepted. Other evidence shows that in early 1986 Frances discussed valuing the land with Mr Dwyer, although his particular expertise was with stock[42]. It seems to me quite likely that in the course of such a discussion Mr Dwyer might have raised the possibility that other agents would be looking for business, both to do with the land and with stock. Frances' reported response concerning the land was consistent with things that she undoubtedly said thereafter. That is so even though in early February 1986 she apparently gave consideration to selling some land[43]. I note, moreover, that Marjorie was not cross-examined to the effect that Frances had told her of a conversation with Mr Dwyer in which he had raised only the risk of predatory conduct by other agents concerning sales of stock.

363. Finally upon this matter, Frances gave evidence in cross-examination that Mr Dwyer is still alive and that she knew of his whereabouts. It was said for the plaintiffs, I think, that Frances should have called Mr Dwyer; and that an inference adverse to her should be drawn in circumstances where she had not done so.

366. Mr Dwyer should not be regarded, I think, as being in the camp of either Frances or the plaintiffs. He was described as the late Mr Cashin's best friend. Now, according to Frances' evidence, he is retired (though he sells some rural real estate). Even if he should be treated as being in Frances' camp I would draw no inference adverse to her. It is true that the parties and other witnesses in this case claimed to retain a memory of things said long ago. But one cannot extrapolate from the case of a witness with such purported recollection to a person who did not give evidence. In the event, my conclusion favourable to the plaintiffs does not rest on the Jones v Dunkel[44] principle.

370. According to the evidence of Marjorie and Ross, Frances stated at a meeting held at the offices of Mr Hanrahan's firm that she would never part with any of the land that Mr Cashin had worked so hard for and that hopefully the land would go down to Tim[45]. They said that Frances' attitude came as a surprise. Based on discussions between Ross and the late Mr Cashin they had expected that she would want to leave the partnership and quit her interest in the land.

373. Each of Marjorie and Ross fixed the date of the meeting as 31 January 1986. They obviously did so because in the course of the case being got ready for trial they ascertained that a meeting had been held on 31 January 1986. Their evidence was keyed in to that date. Frances, they said, was extremely emotional. It was very soon after her father's death.

376. At the time Marjorie and Ross gave evidence the solicitor's file had not been located. Later it was produced. I am satisfied that the meeting to which they referred was held on 11 April 1986. There was a meeting on 31 January 1986. But only Frances attended.

379. The case for Frances was opened on the basis that she did not recall making any statements to the effect sworn to by Marjorie and Ross; but that she may have made an emotive statement to such effect.

382. In evidence, before the solicitor's file came to light, Frances spoke of a meeting which had taken place about six months after her father died. The future of the farming business was discussed. The meeting was quite short. Mr Hanrahan had advised that the partnership should be run out "for the full two and a half years". He recommended that Ross be appointed manager and paid $500 per week. He recommended that Marjorie and she each receive $17,000 per annum - Marjorie for rent, she for interest. She also said that she could not recall attending a meeting on 31 January.

385. It is, I think, clear that up to and including the time Frances gave her initial evidence it was the common assumption that if the statement made by Francis had been made, it had been made at a meeting which took place on 31 January 1986. Frances had no recollection of that meeting. Beyond that, Frances gave evidence of a meeting which, by reference to Mr Hanrahan's file notes, seems most likely have been a meeting held on 13 June 1986[46].

388. Marjorie and Ross each recognised that there had been a meeting at which the matters referred to by Frances had been discussed. Their evidence was that they had attended two meetings. In that they were correct. Their evidence was further that the critical statement had been made at the first of the meetings. Frances did not in her evidence identify more than one meeting. She gave no discrete evidence about the first of the two meetings referred to by Marjorie and Ross, a meeting which by reference to Mr Hanrahan's notes took place on 11 April 1986.

391. I turn to Mr Hanrahan's evidence. I formed the clear view, as I said earlier, that he had no independent recollection of the meetings held on 31 January 1986, 11 April 1986 and 13 June 1986. He really admitted as much[47]; but nonetheless claimed to remember that something attributed to one of the participants had not been said[48]. He said that the statement attributed to Frances would have represented a significant decision made soon after Mr Cashin's death, a decision the like of which should not be made in such circumstances, and which if made would have loomed large.

394. I repeat my earlier conclusion that Mr Hanrahan's evidence on this matter was really reconstruction. It seems to me not to adequately reflect the possibility that Frances in an emotional way may have said something to which he did not attach great significance, but which was of a different import to others then present; or the possibility that he had not been present when the critical remark attributed to Frances was made.

397. I think that Mr Hanrahan tended to downplay the likely extent of Frances' emotional distress. Further, his evidence was uncertain as to which meeting it was with respect to which he described her emotional state[49].

400. Notwithstanding the five months' elapse from her father's death, I consider it likely that Frances did behave as deposed to by Marjorie and Ross. The fact that they wrongly related her behaviour to the death of her father only six weeks earlier does not render their description of Frances' behaviour improbable. It was, on the contrary, quite consistent with her presentation in evidence.

403. In a memorandum dated 4 February 1986 sent by Frances to Mr Hanrahan the former evinced an apparent reluctance to part with the farming land - except Days, and that to pay debts. This was said in a memo in which Frances referred to her father's alleged advice that she not enter into a farming partnership with Marjorie and Ross. It might reasonably be concluded that the statement attributed to Frances was consistent with her adopting a firmer position, in the event that it appeared that debts would not oblige a sale of land, that no land should be sold.

406. Summarising thus far, Marjorie and Ross gave evidence that Frances, whilst emotionally distressed, made a statement to the effect earlier described. They were wrong in saying when the statement was made; and so some of the circumstantial detail of their evidence must be rejected. Frances next, gave no positive evidence at all pertaining to the statement attributed to her. Her recollection of meeting Mr Hanrahan in 1986 was very imperfect. Probably she gave no account at all of the meeting held on 11 April. Her memorandum of 4 February was consistent with a reluctance to sell land. Mr Hanrahan had no independent recollection of any of the three meetings held at his firm's office in 1986. Indeed, until seeing his file notes he had recollection of only one meeting. His denial that Frances said what Marjorie and Ross attributed to her was based on reconstruction. He tended to downplay the extent of her emotional distress; and he could not relate it to any particular meeting.

409. Were that the end of the matter I would have no doubt that the evidence of Marjorie and Ross should be accepted. Frances' counsel raised, however, two considerations which in his submission tended to the contrary. First, Marjorie had not mentioned the alleged statement in her initial affidavit. Second, no occasion had arisen for Frances to make the statement attributed to her.

412. In her first affidavit, sworn 11 August 2000 in the partnership dispute in opposition to an application for summary judgment, and consistently with a defence filed on 4 August 2000[50], Marjorie deposed[51] that it was "possible, or even probable" that the assets of the partnership "may well be held on a constructive trust in favour of" Tim. On the other hand, she did not refer to discussions or statements which took place shortly after her father's death[52]; and in particular she did not refer to the alleged statement made at the solicitor's offices in early 1986.

415. An amended defence was filed in the partnership proceeding on 29 August 2000. The earlier pleading was recast. But particularly an allegation was now raised[53] that shortly after the death of their father Frances and Marjorie reached agreement in a number of oral discussions that the land would always remain in and continue to be farmed by the family; and that the land and the business would ultimately pass to Tim. Particulars appended to the pertinent paragraph of the amended defence did not identify with any specificity the occasions upon which discussions had allegedly taken place.

418. Leaving aside the fact that the discussions between Frances and Marjorie were characterised in terms of agreement, it is, I think, clear that from a time pretty soon after the commencement of the partnership proceeding[54] Marjorie was alleging that discussions of pertinent content had taken place shortly after her father's death. The occasions upon which discussions were held were not individually identified. The alleged statement made at Mr Hanrahan's offices was not identified. But I think that the point made by Frances' counsel, reliant on Marjorie's affidavit sworn on 11 August 2000, did not have the force the he sought to give it.

421. That takes me to counsel's second point. I think that there was nothing to it. According to Marjorie and Ross the meeting was not short. Discussion ranged from pleasantries to the way in which the farming business should be conducted into the future. Mr Hanrahan's file note is cryptic. In the context of discussions which, even by reference to Mr Hanrahan's file note, embraced matters such as the value of the farm (?Nisa Bula) for leasing purposes, the salary then being paid to Ross, and the availability of cattle for sale, it seems to me that an occasion might well have arisen for Frances to make an emotional statement about the future of the land and the business. Bear in mind, also, that according to both Ross and Marjorie the statement was made, as it were, uninvited and out of the blue. Finally, if the evidence of Ross and particularly Marjorie be correct as to the range of matters that were discussed, the opportunity for Frances to make the statement attributed to her was the greater.

424. Counsel pursued a subsidiary argument. It went this way: it was obvious that the farming partnership would have to continue for some time. That was a consequence of taxation considerations. The parties being condemned to a continuing relationship, what occasion could there be for Frances to speak in the terms attributed to her?

427. I do not accept that argument. It assumes a cold and clinical approach to discussion of matters which had an emotional content.

430. It might be argued that, if Frances made the statement attributed to her when at Mr Hanrahan's offices, neither Marjorie nor Ross should have been surprised as they said they were, for what she then said was consistent with what she had reportedly said to Mr Dwyer; and consistent also with remarks made by her at the stockyards on more than one occasion. So, it might be argued, it could not be the case that pertinent remarks were made at the stockyards and to Mr Dwyer, and that in addition a statement as described was made at Mr Hanrahan's offices.

433. Assuming, as I think it is right to do, that the incident(s) at the stockyards and involving Mr Dwyer preceded 11 April 1986, I think that the surprise of which Marjorie and Ross gave evidence was not unremarkable. This was the first "formal" occasion on which such a statement had been made. It was the first time that Frances had directly made such a statement in the presence of Marjorie and Ross. It was not a case of adopting by silence something said by another - as in the case of the stockyards discussion(s). It was not a case of Frances repeating to Marjorie what she had said to a third person. Moreover, directly stated by Frances it was at odds with the situation which Marjorie and Ross had anticipated in light of discussions between Ross and the late Mr Cashin.

436. All in all, I am satisfied that Frances did make at the meeting held on 11 April 1986 a statement to the effect described by Marjorie and Ross.

440. About 14 - 15 years ago James Cope, a relation of Frances and Marjorie who farms land adjacent to Macs, told Frances that if ever it was sold he would be interested to buy it. Frances said "No, it is not for sale. One day it will be for Tim"[55]. That was Mr Cope's evidence, and I accept it.

443. Marjorie gave evidence that she heard of this conversation both from Frances and Mr Cope. The language allegedly used by Frances to describe what she had said varied a little from the language attributed to her by Mr Cope - viz: "We are not selling. We are hanging on to it for Tim"[56]. Nothing turns on the difference. I would not expect word perfect recollection. I accept Marjorie's evidence that the gist of Frances' statement was passed on to her by both Frances and Mr Cope.

447. In the late 1980s, according to Mr Stanley Dunlop, a farmer with land adjoining Home Farm, he asked Frances if he could buy a small part of that land. He was told that it was not for sale, it would stay in the Cashin family, and would eventually be passed down to Tim. His evidence was untouched by cross-examination. I accept it. This incident was not made known to any of Marjorie, Ross or Tim before litigation commenced.

451. Marjorie gave evidence that sometime after her father's death, "before titles were getting swapped over", she and Frances discussed a Crown Grant pertaining to Home Farm which Frances had in her office. It was a magnificent document, bearing the Crown Seal and a reference to King Edward VII. Frances, who "loves the British Monarchy" said that she would never part with the document. It was not going out of the family. When she said to Frances that one day, when Tim got the land, there would just be Pearson on the title, Frances replied "That is ok, it is still the family"[57]

454. Marjorie was cross-examined to suggest, first, that she had identified a Crown Grant copied into the Court Book which, or a copy of which, Frances had never had at her home; second, that Frances never had an original title at her home; and third, that the conversation of which she had given evidence had never occurred.

457. Frances gave evidence that she had never had the original Crown Grant to Home Farm at her home. She had probably discussed the title with Marjorie, "It is a lovely title to have, this one"[58]. She did not recall Marjorie ever saying that when Tim got the land there would "just be Pearson on . . . the title"; or of saying "That is ok, it is still family"[59].

460. It is, I think, likely that Marjorie mis-identified the particular title in respect of which discussion allegedly took place. It is very likely that any document about which discussion took place was a copy. Frances had copies of all titles at her home at least from February 1986. The real question is whether the alleged discussion took place. In that connection I much prefer the evidence of Marjorie. Having regard to Frances' attitude to at least one of the Crown Grants, as revealed by her evidence in chief, it seems to me that if a conversation had developed with respect to a Crown Grant it might well have commenced in the sort of interchange of which Marjorie gave evidence. If that was not so Marjorie possessed a considerable imagination. She did not impress me as having that quality. Moreover, Frances' denial of the conversation was founded on reasoning which was not obviously sound.

463. All in all, then, the substance of Marjorie's evidence should be accepted. The incident probably occurred in 1988, the year in which title particulars were altered.

467. In mid 1988 a new partnership was constituted between Mrs Cashin, Frances and Marjorie. A question arose as to the name of the partnership. Mrs Cashin wanted to call it "Cashin Farms". Marjorie protested, saying that there should be reference to the name Pearson. That led, in stages, to adoption of the name "Cashin Pearson Pastoral", it being registered as a business name in consequence of application dated 24 June 1988.

470. According to Marjorie, in advocating addition of the name Pearson she referred to all the hard work that Ross had done and said:

"Well, when it is just going to be Tim, which [it] will be, one day it will just be Pearson. You are best to keep continuity of trading name and set yourself up."[60]

Asked if Frances agreed "with that", Marjorie replied:

"She didn't not agree because then we all agreed `Pastoral' added to the bottom, `Cashin Pearson Pastoral'."

Frances' evidence about the matter was that Marjorie felt left out. She was to be a partner, but there was to be no reference to the name Pearson. "It was thoughtless and we included her in".[61] She had no recollection of mention of Tim.

477. It may be the case that Marjorie made reference to Tim in the course of the conversation. But on no view did Frances do so; and there was good reason to include the name "Pearson" in the partnership name quite apart from the prospect that Tim would one day own the land and business. I could not draw a conclusion favourable to the plaintiffs from the fact that Frances joined in submitting the name "Cashin Pearson Pastoral" for registration.

481. I have already set out the substance of the 1992 wills made by Frances and Marjorie. There was dispute as to what was said between Frances, Marjorie and Ross concerning wills made that year. They included a will made by Ross.

484. The burden of Marjorie's evidence was that she and Frances had quite a bit of discussion concerning the terms of their wills. It included mention of Tim being a farmer, and of his sister, Angela, hating the farm. Frances had said "We will have to leave all the land to Tim"[62]. She, Marjorie, had readily agreed. It was agreed between them that Tim would get all the land and that his sister would get other things.

487. The case for Frances was opened on the basis that there had been discussion between she and her sister before they made their 1992 wills. She had not suggested that all the land and farming assets be left to Tim. Marjorie had done so. Marjorie had also suggested that other assets be left to Tim's sister. She had not disagreed with those suggestions.

490. Frances' evidence in chief was that her sister did not tell her what provisions she had made in her will. Marjorie had said she was concerned that Frances not leave anything, particularly land, jointly to the children. She, Frances, had told Marjorie that she would think about it.[63]

493. Frances admitted in cross-examination that in an affidavit sworn on 24 October 2000 she had deposed that her sister had specifically proposed that she, Frances, leave the land to Tim; and that she had made a mistake when she deposed as to the sequence of events. But otherwise she held to the account of events that she had given in evidence in chief.

496. By her 1992 will Frances did not, of course, leave her interest in the land to Tim. She left it to Marjorie absolutely, save if Marjorie predeceased her. In the latter situation it was to go to Tim at age 25. She made similar provisions with respect to her interest in the business.

499. There could be no doubt that Frances knew in 1992 that Marjorie intended to leave her interest in the land ultimately to Tim. Likewise her interest in the business. Frances was doubtless aware that a person can change a will. But I think it very clear that she would have believed that Marjorie would not change her intended ultimate disposition to Tim. In those circumstances, for Frances to leave her interest in the land and business to Marjorie carried assurance that Tim would one day inherit that interest.

502. In the circumstances described there was no point to be made by Frances that she had not in fact done what, on Marjorie's account, she had said she would do. That leaves open the question whether it was she or Marjorie who had initiated the proposal that the land be left to Tim.

505. Not only Frances and Marjorie, but also Ross gave evidence of discussions pertaining to the wills which were made in 1992. He said that he thought he had been present at some of the discussions. He gave an account of discussions pertaining to the sisters' wills in terms which accorded with what the wills in fact provided. He gave no account of the particular discussion of which Frances and Marjorie gave evidence.

508. The evidence of Frances and Marjorie was that no one else was present at the time of that discussion. Ross' evidence did not tell to the contrary. Whether he participated in, as distinct from learning about, any discussions between his wife and Frances is extremely doubtful. In the event, the question to which I referred a few moments ago must be resolved by considering, in context, the versions given by Frances and Marjorie.

511. In context, I think it very likely that Frances, if she did not initiate the suggestion that Tim be left the land, at least intimated that she agreed to such a course. To have done so was entirely consistent with statements of intent that she had made to a number of people over a period of years. Moreover, it was the fact that Frances came from a farming family with a long interest in the land, that Tim was the only son available to carry on the family tradition, that he was interested in and adept at farming, and that his sister had no such interest. I think it very improbable, in all the circumstances, that Frances simply heard out what her sister said in silence.

514. I should add one matter. The sisters' evidence suggests that whatever discussion they had pertained to the land. The land and the farming business, however, were intimately related. I think it likely that they each treated discussions about the land as extending to the business. That is reflected in the wills which they made.

518. When he was 17 Tim bought a "metallic blue Holden Statesman utility, with running board flares, rather flash, with a V8".[64] It proved to be a magnet for girls. Marjorie became concerned. Tim attracted "a couple of unsavouries I didn't like".[65] Marjorie discussed the matter with Frances. Frances said:

"It is a real worry who Tim will end up with. I would hate to see that this land would get split up in a divorce settlement."[66]

522. Frances did not contradict that evidence. In cross-examination she agreed that she had expressed a concern to her sister about the brittleness of marriage amongst young people.[67]

525. I accept Marjorie's evidence concerning this matter. What Frances said was entirely consistent with her intent, expressed before and after that occasion, that Tim would one day inherit the farming land and business.

529. Mrs Florence Wilson gave evidence that she has known Marjorie and Frances for very many years. She said that in about 1993 she had a conversation with the latter in the local supermarket. In the course of the conversation Frances said "My special nephew, Tim, is getting all that I have got".

532. Frances denied that the conversation took place. She gave a number of reasons - in particular that she does not refer to Tim as her "special nephew", and that the year of the alleged conversation could not have been correct.

535. In his final address counsel for Frances did not suggest that I should reject the substance of Mrs Wilson's evidence notwithstanding the evidence given by his client.[68] That concession aside, I do accept Mrs Wilson's evidence as to what was said, although I think it likely that the conversation took place several years later than the witness recalled was the case. I consider that the detail which Mrs Wilson gave of the circumstances in which the remark was made was inherently credible.

539. Kenneth Morris-Thomas, a farmer and contractor, gave evidence of having known the Cashin family for 50 years or so. He said that over the years he has done cartage work in connection with the properties. He recalled an occasion in late 1994 when he was carting silage from The Bush to a pit on Dunlops. Frances had got into his truck and accompanied him. She had asked him how he got on with Tim. He had described Tim favourably. She had said, "Graham, all this land here one day will be Tim's". He had recounted the conversation to Ross.

542. Frances gave evidence that she could not recall saying what was attributed to her. She described Mr Morris-Thomas as an honest person.

545. I prefer the evidence of Mr Morris-Thomas, based upon his distinct recollection, to the uncertain evidence given by Frances. That is not to criticise the evidence given by Frances in this connection.

549. I have no doubt that in mid-1995 there was some conversation between Ross, Marjorie and Frances concerning the purchase by Tim of a Mitsubishi Magna, and in particular the burden that he faced in making repayments. Ross and Marjorie gave evidence to the effect that Frances had said that one day, when Tim had all the farms, he would have plenty of money.

552. In opening, counsel for Frances indicated that his client had no recollection of making such a remark, though she could not emphatically deny it. She had to concede that she may have made such a comment. Frances' evidence was generally to that effect.

555. The import of Ross's evidence, and to an extent the evidence of Marjorie, was that Tim's difficulty in making repayments was raised in the context of his wage being quite low. Frances was being asked, obliquely, to consider giving him a wage rise.

558. Ross and Marjorie were cross-examined to suggest that Frances had never denied Tim a wage rise and that he was given a rise in the 1995/1996 financial year. That cross-examination, pertinent though it might have been in another context, does not persuade me that Frances did not make the alleged remark. I am positively satisfied that she did. Whether Frances appreciated the subtext of what Marjorie and Ross said to her and whether Tim in fact received a wage rise in that financial year are peripheral matters for present purposes. Frances agreed in cross-examination that in an affidavit sworn in this proceeding she had said that when the matter was raised it struck her as a bit odd why a 21 year old single man would buy a family sedan, brand new, without apparently looking too closely at the repayments required. I can accept, not needing presently to go further, that this was Frances' state of mind. I think it is consistent with the remark attributed to her.

562. In 1998 Ross and Marjorie were living on Nisa Bula. By then Tim was living in rented accommodation some distance away.

565. A plan was devised which was intended to improve the situation. It contemplated an acre of Dunlops being subdivided off, and Ross and Marjorie building there. It further contemplated that Ross and Marjorie would live in the new home, and that Tim would move onto Nisa Bula.

568. Marjorie gave evidence that she had spoken with Frances about the matter. Frances had mentioned certain pitfalls - including the cost of getting electricity to the proposed house site, and the prospect that living at that place would be lonely. Later on they had discussed who should pay the cost of electricity connection. Of present relevance, she had spoken to the Shire Engineer about the proposal. Access to the site would have been by way of an unused road running through Dunlops. The Shire had been concerned that if Dunlops was ever sold it would be liable for this road. She had assured the Shire Engineer that Dunlops would not be sold - that the land was to go to her son; and that a 99 year lease was held over the unused land. The Shire Engineer had said that he needed to see it. So she went to Frances, to get the lease. She told Frances what she had said to the Shire Engineer. Frances gave her the lease. She said nothing to suggest that the assurances given by Marjorie to the Shire Engineer were inaccurate.

571. Frances gave evidence that there was discussion between she, her sister and Ross concerning the proposal. Her evidence as to the detail of the conversations did not coincide with the evidence of her sister. Critically, she denied that she had ever had a discussion with her sister concerning any difficulties the latter had experienced in dealing with the Shire Engineer. On the other hand, she recalled getting her sister a copy of the 99 year lease. But "that was some time ago".[69] She also said that when she read her sister's account in an affidavit she thought it was rubbish. She had never seen the lease. She had never heard of Mr Simcock, the Shire Engineer, in all this matter.[70]

574. The Shire Engineer was not called as a witness. Marjorie's account of her discussion with him, culminating in his request to see the lease, had some odd features about it. But it was an account the concoction of which would have required considerable powers of imagination. And as I said earlier, I do not take Marjorie to be a person possessed of such powers.

577. In the event, I accept the critical detail of Marjorie's evidence. But I do not consider that the incident rates high in significance. At its best for the plaintiffs, Frances by her silence acquiesced in a statement concerning the intended disposition of the farms that was consistent with statements she had herself repeatedly made on earlier occasions.

581. Mr Donald Perrett, an accountant who practises at Leongatha, is a member of a family which has had a long, non-professional, association with the Cashin family. In 1998 his firm was involved in establishing the Gippsland Branch of an organisation named Family Business Australia. On 25 November 1998, the witness said, the organisation held a seminar on issues relating to family and estate planning. He was seated next to Frances. A speaker said that a new stamp duty regime might not apply to adopted children. Frances challenged the speaker about the matter. She told the witness that it would have some impact on the family situation with Tim.

584. Mr Perrett was not cross-examined about this evidence. Frances gave no evidence concerning the matter.

587. I accept Mr Perrett's evidence. But what Frances said was equivocal. It was also said late in the piece.

591. Mrs Vicki Murdica is the sister of Tim's wife. She gave evidence that following the birth of Tim's first child on 10 March 1999 she visited her sister at the hospital. She saw Frances there. Frances said: "Isn't it nice that now they have got a little son and heir to carry on the farm".

594. Mrs Murdica was not cross-examined. Frances gave no evidence about the incident.

597. I accept Mrs Murdica's evidence. Like the evidence of Mr Perrett it might be thought to be equivocal, although against the background of things said by Frances it was probably not so. Be that as it may, the remark was made very late in the piece.

600. That exhausts the occasions on which representations were alleged to have been made by Frances to Ross, Marjorie or others - that is, excluding representations made to Tim.

603. In summary, representations (1), (2) (3), (5), (7), (8), (11) and (12) were made or communicated to either or both of Marjorie and Ross. Representations (4), (9) (10), (13) and (14) were made to other persons. They were not communicated to any of Ross, Marjorie or Tim prior to August 1999. They were, in large part, consistent with representations made to or reported to Ross and/or Marjorie. I am not satisfied that representation (6) was made.

606. Of the representations thus far considered I think that representations (2), (3), (5) and (7) were the most significant. That is in part because of the time that they were respectively made. The earliest was made in 1986, the last in 1992. They thus had a capacity to influence behaviour over a longer period than the later representations. Representation (8), for similar reasons, was not inconsequential. Representations (10) and particularly (11) had very little capacity to influence a course of conduct.

611. Marjorie gave evidence that soon after her father's death, consoling Tim - who was then aged only 11 - she said to him:

"It is all right, Tim. Aunty Fran doesn't want to sell up the farms. The farms are there. We are continuing on just as it was, and we are holding it all. If you want to carry on, it is all going to be there for you."[71]

615. Marjorie further gave evidence that after the 1992 Wills had been signed she told Tim that this had been done, and "this is how it is"[72]. He had not seemed shocked.

618. Tim gave evidence of the first conversation. He said that it occurred several months after his grandfather's death.[73] He also gave evidence of a conversation with his mother after the 1992 wills had been made.[74] Save for the timing of the earlier conversation, his account had many points of contact, though it was not identical, with his mother's evidence.

621. I am satisfied that the second of the alleged conversations took place. I am also satisfied that not long after Mr Cashin's death Marjorie did tell Tim, in answer to his question, that the farm was to continue on as before, as a family business, eventually being passed on down to him.

624. It must have been obvious to Tim that his grandfather had been a leading light in running the farm. His grandfather had involved him in stock selection and had encouraged him to establish his own little herd. His grandfather having died, and notwithstanding his father's obvious involvement with the farm, a natural question was: what is to happen with the farm now?

627. I think it is certain that the question was asked and answer given months after Mr Cashin's death rather than such shorter period as might be inferred from Marjorie's reference to conversation "soon after" that event. This was not a conversation, I am satisfied, concerned to console Tim on the very recent loss of his grandfather. To the extent that Marjorie's evidence might suggest otherwise, I reject it.

630. The timing of the question and answer makes it certain that Marjorie had then been told by Frances that it was her intention not to sell any land; and that it should in due course pass on down to Tim. But it does not follow that Marjorie referred to the latter aspect of that intention in replying to Tim's question. It is unlikely that reassurance given to an 11 year old boy would have addressed such a detail. I think it likely that the answer treated the farm and the business as one and indivisible. That was the gist of Tim's evidence.

(2) Conversation between Frances and Tim, March 1996

634. I turn to evidence given by Tim of a conversation held between he and his aunt in March 1996. It occurred shortly after his father's heart attack, when he was working particularly hard in his father's absence. He said that his aunt:

"praised my efforts and said how proud she was, and was very happy with the work I was doing, and said that she was glad how I was handling it so well because one day it would be mine to run."[75]

638. Tim's evidence of the conversation which he had with his aunt in March 1996 was not the subject of cross-examination. Frances gave no evidence concerning the matter. I accept Tim's evidence.

(3) Other Conversations involving Marjorie, Frances and Tim

642. Tim said that his aunt's remarks in March 1996 came as no surprise at all. It was the first "actual time" he could remember her saying something like that to him

".... but I am sure there were other instances where it had been mentioned just briefly. But I never kept a record of comments such as that."[76]

646. That evidence fits in, I think, with evidence given by Tim of things said to him on family occasions whilst he was a teenager and still at school. He was much encouraged and was told "just that (he) had a very big interest in the farm".[77] The notion was one of a farm single and indivisible.

649. I consider it very likely that over the years from 1986 onward things were said to Tim both by Frances and Marjorie which conveyed their intention that one day he would inherit the land and the business. That was, as I have found, their common intent over a long period. It is improbable indeed that things were not said to Tim which were founded upon that common intention. It is improbable also that Tim would now remember the occasion of each such remark.

652. Not every conversation involving his aunt which Tim could specifically recall unequivocally supported his case. In that connection I refer to evidence he gave of conversations which he had with his parents and, he thought, with his aunt in about 1994. At that time an opportunity arose for him to go dairying on a dairy farm owned by his paternal grandmother at Dumbalk. The opportunity had the attractions, Tim said, of providing a change and of a better financial future in the longer term.

655. Tim gave evidence that his parents discouraged such a move. They emphasised the way in which the property had been improved by the work of he and his father. His father said how much work he had done to get the farm to the standard it was for Tim and his family in turn. In the end he decided to stay, as it looked like it would be the better thing to do for the future.

658. He was asked these questions and gave these answers in examination in chief:

"Did your Aunt Frances say anything to encourage you to take up the dairying option?- - - No, no. Did your Aunt Frances say anything to indicate that you weren't ultimately going to inherit the beef farm?- - - No, not, nothing whatsoever." [78]

662. In cross-examination Tim said, in effect, that his aunt had neither encouraged or discouraged him from going dairying at Dumbalk. He agreed that there had been discussion between them about one day setting up a dairy farm at The Bush or Dunlops. But that had not been a viable idea.[79]

665. Frances' evidence concerning dairying was quite different. Tim had not mentioned the possibility of dairying at Dumbalk. On one occasion he had said he would like to build a big dairy on The Bush and Dunlops and milk 700 cows. "And there was not much else said."[80]

668. Ross gave evidence about the occasion when Tim contemplated a move to Dumbalk.[81] It generally accorded with Tim's evidence.

671. I think it likely that Tim did consider a move into dairying at Dumbalk in about 1994. I think it likely that his parents, Ross in particular, talked him out of it. I think it was implicit in what was said to him that the farm, one and indivisible, would one day be his. To that extent whatever his parents said reflected the then stated intention of the sisters.

674. I am not satisfied, however, that Tim spoke to his aunt about dairying at Dumbalk. His evidence that he discussed the particular matter with her was initially uncertain.[82] The discussion that he apparently had with his aunt about the possibility of dairying on The Bush or (and?) Dunlops[83] seems likely to have been on another, discrete occasion.

677. It could, perhaps, have been said for the plaintiffs that Frances' apparent acquiescence in the dairying possibilities of The Bush and/or Dunlops was a further instance of the farming properties generally being treated by her as one and indivisible. But that was not contended, and I put the matter to one side.

681. Tim gave evidence that his wife had repeated to him the remark made by his aunt to Mrs Murdica shortly after his son's birth in March 1999. I accept his evidence. For the reason I earlier gave the remark was of only slight significance to this litigation.

685. Senior Counsel for the plaintiffs submitted that in reliance upon the expectation created by Frances' representations his clients had acted to their detriment as follows:

(1) Ross and later Tim had constantly worked for less than appropriate wages, with less than appropriate holidays, and without provision for long service leave. In return for that under-remuneration they had provided long hours of high-level skills, increasing business profits and (in bad times) minimising losses. The detriment they suffered had not been simply monetary. It had involved depreciation in the quality of life that they had enjoyed.

Frances could not successfully argue that the monetary component of this detriment would be expunged by resolution of contractual claims made by Ross and Tim. Only a portion of the monetary detriment could be recovered by such claims - in respect of unused annual leave and (at least in Ross's case) long service leave entitlement. That would leave outstanding claims for equitable damages - including, in Ross's case, a wages shortfall between 1986 and 2000 of about $286,000;[84] and in Tim's case a wages shortfall, as set out in the statement of claim, of about $187,500.

(2) Ross had incurred expenditure by way of personal expenses ($26,093) and motor vehicle expenses ($95,332) in pursing partnership activities. These were not contractually recoverable.

(3) Ross had suffered lost opportunity by reason of his being under-remunerated over the years. He had been deprived the opportunity of having funds for investment purposes. The value of the lost opportunity, depending upon taxation considerations, was between $280,000 - $553,000. This addressed the period 1986 - 2000.

(4) Ross had provided his own equipment for use in the partnership business, to its advantage and his detriment. The equipment had lost value, estimated at $5,000.

(5) Tim had provided his tractor for use in the partnership business. He had not been remunerated at all for doing so. He estimated the value of work done, for which there had been no remuneration, at $16,000.

(6) Ross had invented or improved upon farm equipment - a cattle crush, stockyards and a self-feeding silage bunker. These inventions or improvements had been dedicated to the good of the partnership business. Ross, immersed in working for the partnership, had lost the opportunity of developing them to his own commercial advantage.

(7) Consistently with representations made in 1986 and thereafter, Frances had in substance closed the door in and from 1986 on any attempt by Ross, and later on any attempt by Ross and Tim, to buy out her interest in the land and business. The same situation obtained after the death of Mrs Cashin in 1996. The door remained closed until, at earliest, August 1999; and really until the partnership was dissolved as at 3 June 2000. The closing of the door, having regard to the expectation created by Frances' representations, was entirely acceptable to the plaintiffs and Marjorie. Frances' interest in the land and business as at 1988, when Mr Cashin's estate was finally settled, was smaller than it became after her mother died in 1996. For Mrs Cashin held a 50% interest in each of Dunlops and Days; and an interest in both stock and plant and equipment. Ross had anticipated a need to purchase the interest that Frances would inherit from her father in the land and business; and had been prepared to make that purchase in order that the land and business should one day, so far as possible, pass down to Tim. The effect of reliance upon the expectation created by Frances' representations was that Ross, and later Tim, were deprived of the opportunity of staging the purchase of Frances' interest - that is, by first purchasing the interest which she had after Mr Cashin's death; and later by purchasing the interest which her mother left her. The acquisition of Frances' interest as at June 2000 was more difficult, and more costly.

(8) Ross and Tim had foregone opportunities to carry on different and more personally beneficial farming operations. Ross could have conducted a different beef cattle operation, or gone back to dairy-farming at Dumbalk. Tim had been interested in dairy farming at Dumbalk. His father had talked him out of it, in reliance on representations by Frances and Marjorie that one day the land and business would all be his.

691. Counsel submitted, further, that although detriment could here be seen in purely monetary terms - a detriment occasioned by reliance on an expectation created by representations from the consequences of which Frances now sought to resile - nonetheless detriment was not to be measured in purely arithmetical terms. Most importantly, there was the detriment that must be suffered if the land and business, which each of Ross and Tim had worked so hard to improve, not so as to obtain immediate income but so that Tim should gain, in due course, the entire proprietary interest, was in the whole denied to Tim by Frances' change of position.

694. Counsel for Frances submitted, at its highest, that the plaintiffs had suffered no detriment in reliance upon an expectation created by his client's representations. His contentions were in substance as follows:

(1) It was the plaintiffs' expectation between 1986 and 1999 that Frances would leave her interest in the land and business to Tim.

(2) Frances knew that the plaintiffs had such an expectation. It coincided with her intention, as reflected by the wills that she executed and the statements that she made.

(3) Frances did not make the pertinent statements for the purpose of inducing the plaintiffs to act to her benefit or their detriment.

(4) If, which was denied, the plaintiffs had acted in reliance upon the expectation created by Frances' representations to their substantial detriment, Frances was unaware of their doing so in reliance upon her statements.

(5) If the court decided that the plaintiffs were entitled to relief, the minimum equity needed to avoid any injustice was an award of a monetary sum to be paid out of the assets of the partnership and secured against them.

700. Counsel for Frances expanded upon his contention that neither of the plaintiffs had suffered substantial detriment in reliance upon the expectation created by her representations. He made these submissions:

(A) The amount for which the plaintiffs could purchase Frances' interest in the land as at 30 June 2000 was no higher in real terms than the price for which it could have been purchased after Mr Cashin's death as to part and after Mrs Cashin's death as to part.

(B) If (A) was wrong, then in any event the amount in real terms was the greater by reason of partnership expenditure. The plaintiffs would gain the benefit of such expenditure if they now bought Frances' interest; and Tim would gain such a benefit if he otherwise acquired that interest.

(C) The plaintiffs would have worked as hard and inventively as they did regardless whether Frances had made the representations which she did. They would have done so because Marjorie had a substantial interest in the land, because that was their natural bent, and because, if the expectation had not been created, the land and other assets would have been acquired in any event.

(D) The amount for which the plaintiffs could purchase Frances' interest in partnership stock as at 30 June 2000 was no more in real terms than they would have had to pay for stock on 30 June 1986.

(E) There was no detriment to the plaintiffs in their not acquiring Frances' interest in partnership stock before 30 June 2000. There had been a poor return over the years 1986 - 2000.

(F) There was a positive benefit in the plaintiffs being able to acquire Frances' interest in the stock at market prices ruling as at 30 June 2000; for prices had risen substantially in the ensuing 14 months.

(G) Tim had not been under-remunerated to any significant extent. The Pastoral Industry Awards of 1986 and 1998 had no application in his case. The long hours he had worked should not be disregarded. But there should be set-off against that matter the circumstances that over the period of his employment he had run his increasingly large herd on partnership land[85], in reality, rent free; and had used his own business to make tax claims for motor vehicle expenses which were much in his favour.

(H) The detriment alleged by Ross by way of under-remuneration and by way of expenses incurred was overstated - quite apart from the fact that it could yield no equitable remedy. Frances did not dispute Ross's contractual claim. If it was met by an order for damages, that alleged detriment would disappear.

Dealing further with the damages, equitable and contractual, claimed by Ross, counsel submitted that:

(i) it would not be unfair to say that the wages' shortfall between 1986 and 2000 was $140,000 - that is about $10,000 per year;[86]

(ii) interest on the claim for lost opportunity ought be calculated at 6%. Had Ross received additional money, it would probably have been used in rural land investment;[87]

(iii) allowance should be made in the lost opportunity claim for the incidence of taxation at two points;

(iv) the claim for motor vehicle expenses should be adjusted from $95,322 to $61,966 for tax; and should be adjusted again to reflect the fact that there was some business use of the vehicle(s) in connection with the Dumbalk dairy property;[88]

(v) the claim for personal expenses should be adjusted from $26,093 to $16,966 for tax; and should be subject to revision downward so as to reflect proper caution in respect of claims for personal business expenses.[89]

706. The first submission made by counsel for Frances, concerning the plaintiffs' expectation between 1986 and 1999, coincides with my conclusion. So does his second submission, concerning Frances' awareness of the expectation held by each of Ross and Tim. In that connection the inference of Frances' awareness is overwhelming.

709. I do not accept counsel's third submission. First, it assumes that it was necessary for the plaintiffs to show that Frances made the representations with the intent of inducing the plaintiffs to act to her benefit. For reasons previously stated, I do not agree that the plaintiffs must prove such an intent. That is not to say that Frances did not in fact obtain a benefit from the plaintiffs' conduct.

712. Second, I do not take Frances to have been financially or commercially naïve. I have already referred to aspects of her hard-headed attitude. Moreover, she was in employment for many years. She held clerical and managerial positions. She could hardly have been unaware of prevailing wage rates in the community generally. She also kept the books of the business for many years. She knew, then, what Ross and Tim were paid from time to time. She undoubtedly knew that each of them worked long hours and took few holidays. She could not but have realised that Tim's remuneration made no allowance for hours worked in excess of the ordinary. I do not consider that she could sensibly have concluded that Ross's salary adequately reflected his hours of work and the skill he brought to bear. It was apparent, moreover, that his earnings stalled in the mid 1990s. Frances must have known that the hours Ross and Tim worked and the fact that they took few holidays meant that the need to hire labour was minimised. It was inevitable, as she must have known, that hired labour would be more costly than work done by Ross or Tim over the same spread of hours. Overtime, for example, would have come into play. It should not be supposed that Frances would have contemplated that hired labour should be employed at other than award conditions. There was always, as the evidence showed, a relevant industrial award. Frances could not but have known, again, that no provision was made for long service leave in Ross's case. Further, Frances must have known that, in the ordinary case, a loading is payable on holiday pay; and, as I have said, she knew that each of Ross and Tim took few holidays. Again Frances must have been aware - for it was well publicised - what a skilled, efficient and innovative farmer Ross was. As a matter of logic, skill, efficiency and innovation were likely to improve farm profitability; or at least minimise farm loss at time of rural downturn. Finally, Frances had long been involved, if only peripherally, in the running of the farm. It is improbable in the extreme that she did not believe that family management and labour is likely to be more enthusiastic about work and more prepared to accept low wages in order to build up the family asset than is hired labour.

715. I consider, in the circumstances described - all of which were either known to Frances or are otherwise rooted in commonsense and properly matters in respect of which inference should be drawn on the evidence - that there is the most powerful inference that Frances saw it very much in her interest that Ross remain on the farm and that Tim enter into work on the farm when he left school. At all times she had a stake in the success of the business. It was the more so once she decided to retain her interest in the land and business. She had a right to drawings; and drawings were bound up with profitability. Moreover, the business was indebted to her in an amount of $100,000; and interest was payable from 1986 onwards at 17%, notwithstanding the decline in interest rates as the 1990s progressed.[90]

718. The advantage, then, of Ross remaining in work for the business, and of Tim becoming an employee, was that Frances had the prospect of bettering her return on her asset. That was to her benefit; and because it involved Ross and Tim working long hours for inadequate return, it was to their detriment - both in terms of financial return and depreciation in the quality of life that they enjoyed. It was to her benefit, I add, even if she could have obtained a better return on her capital by realising her asset and investing in some other form. I do not accept, so far as it may be necessary for a plaintiff to prove that a defendant benefited from the expectation created by representations, that such matter can only be proved if the plaintiff demonstrates that the defendant could have benefited to no greater extent in consequence of acting in some entirely different way.

721. Given the inference that Frances saw it as in her interest that Ross remain on the farm and that Tim enter into work on the farm, I consider it is an available conclusion that the representations she repeatedly made, creating the expectation that one day all would be Tim's, were very much intended to ensure that Ross and Tim did just that. Counsel for Frances submitted, however, that no such conclusion should be drawn. He argued that Marjorie had an interest in the land and business which Ross would wish to enhance by his work, that in any event Ross had already worked in the business for a very long time by 1986, and that it would always have been logical for Tim to start work on the farm in which his mother had an interest and on which his father worked. These were matters which Frances either knew or would reasonably have supposed. They meant that representations having the natural effect of inducing or encouraging Ross to continue to work and Tim to commence work in the business should not be taken to have been made with any such intent; still less with an intent that it be to their detriment and Frances' benefit. He submitted, in effect, that Frances' representations were no more than an outpouring of a genuinely held benevolent intention, free of any self-seeking motivation.

724. There was some force in counsel's submissions. But I am satisfied that a different conclusion should be reached.

727. I deal first with the submissions so far as they pertained to Ross. It was probable but not inevitable that Ross, absent the expectation created by Frances' statements, would have continued work for the partnership. He did have other opportunities - for example, of operating Nisa Bula and the family dairy farm; of developing or exploiting his inventions; of obtaining, as a man whom I judge to be at the top of his profession, employment[91] at a salary compatible with his skills. It may be accounted improbable that he would have taken up such opportunities. But they could not be ignored; and they would, I think, have been obvious to Frances. Moreover, I think it could hardly be doubted that a man working on a property and in a business which he believes will in its entirety remain in the family in the foreseeable future is likely to have stronger work motivation than a man working on a property and in a business which he believes, as a matter of probability, will at some foreseeable time in part pass out of the family. Absent the expectation created by Frances' representations, the latter was the situation. This is a circumstances of which Frances, with her long connection with farming operations, could hardly have been unaware.

730. The matters to which I have referred give reason for Frances to have intended that her statements, by creating the expectation that they did, should operate to cement Ross's attachment to the business. I consider that such motivation was present. That is not to deny that the statements expressed a genuinely held benevolent intention.

733. I turn to the submissions so far as they concerned Tim. At the time when pertinent statements were first made and brought to Tim's attention he was still young. Years of school lay ahead of him. In that period of schooling I think it clear that the expectation was reinforced that one day the farm and business would all be his. Critical in the perpetuation of that expectation were the statements made by Frances, for the most part conveyed indirectly to him. In the event, by the time he left school not only was it clear that his future lay on the land, it was clear that his future lay on a farm and in a business that one day would all be his. After he commenced work on the farm, and until August 1999, that expectation was reinforced - directly and indirectly. Tim had at least one opportunity to leave the farm. He did not take it. Ross talked him out of it. He did so by reinforcing the expectation that one day the farm and business would all be inherited by Tim. All Ross did, in substance, was to repeat the expectation which Frances had created by her statements.

736. I think it very improbable that Frances did not realise, and intend, that the expectation which she created by her statements would make it seem desirable to Tim that he start work on the farm, stay on the farm, put aside other opportunities which might seem attractive to a young man, be prepared to work hard for long hours for little money and few holidays, and immerse himself in his work to a degree that was improbable had he been uncertain whether all the land and the business would remain in the family and eventually be his.

739. I come now to the issues of detriment, reliance and knowledge. Contrary to the submissions made by counsel for Frances, I am satisfied that each of the plaintiffs has suffered substantial detriment in reliance upon the expectation created by Frances' statements; and that each of them will suffer further detriment if Frances is permitted, without remedy, to resile from the expectation which she created. I am also satisfied that in most but not all instances Frances knew that detriment had been and would be suffered in reliance upon such expectation - not that this is critical in light of my conclusion concerning Frances' intention.

742. The detriment identified by counsel for the plaintiffs, and the detriment referred to and dismissed by the submissions of counsel for Frances did not entirely coincide as to subject matter, though broadly they did so. In dealing with matters of alleged detriment I shall at the same time deal with issues of reliance and knowledge.

745. I have said earlier that Ross consistently worked extremely hard and innovatively and for extremely long hours with few holidays.

748. In the course of the trial, having heard all the pertinent evidence, I indicated to the parties my provisional conclusions concerning the nature of the work that he had done, and the hours that he had taken to do it. What I said was this:

"... I have so far formed the impression, with respect to Mr Ross Pearson, that he has been an extraordinarily hard working, innovative farmer; that in terms of farming practices that he has adopted, he has been very much a leader in the Victorian cattle industry; that whilst it might be said that various things he has done - for example, better use of pasture, use of silage in a particular way, strip grazing, adaptation of stock for particular specialist markets, use of enhanced shelter for cattle, development of what might be called personalised equipment for use in cattle handling, stock selection - if viewed individually might be said to be no more than a competent farmer would do, yet when they are put together seem to me to paint a picture which justifies a conclusion that this man, in the management of this farm over a long period, has gone a long way further than merely being a competent farmer. It is also the provisional view I hold that his work, in terms of both hours and the quality of work, much outstrips what might have been expected of either a simple employee or a competent manager"[92]

752. Nothing was said in counsel's final addresses to dissuade me from reaching those conclusions finally, subject only to the submission of senior counsel for the plaintiffs that if anything those conclusions would not reflect strongly enough the immense and innovative effort that his client had put into building up the properties, and into improving the stock and the quality of stock turned off.

755. I think there is a good deal to be said for that submission. The evidence given by Ross was itself compelling. To that may be added the pertinent evidence of Mr Morris-Thomas, Mr Rodwell, Ms O'Sullivan, Ms Vagg and Mr Bowman, quite apart from evidence given by Tim, Marjorie and Frances. I mention also pertinent documentary evidence: articles in the Australian Farm Journal of February 1994[93] and "Stock and Land"[94] showing innovative features of a cattle crush designed and built by Ross, photographs showing a gate post design, a front-mounted post-driver and cattle yards which all show innovative features[95], a brochure produced by the Department of Agriculture in 1993 entitled "Producing High Quality Grazed Beef for the Japanese market"[96] and articles in a brochure produced by Agriculture Victoria in 1996 entitled "High Quality Beef for Japan"[97].

758. In all, I have no doubt that the provisional conclusions which I expressed during the trial do reflect the nature and quality of the work which Ross performed over many years, and the hours which he put in. To an extent they might be said to reflect less than the nature, quality and hours of work which he has performed. But any difference could only be measured in terms of degrees of excellence. It would not be material in my resolution of this matter.

761. It was eventually common ground that in respect of the period of his employment by the successive partnerships Ross had 80 weeks of unused annual leave. His annual leave entitlement over that period amounted to 124 weeks. By arbitrary apportionment it can be said that in the period after December 1985 he had an entitlement to 60 weeks' leave, of which he took only 22 weeks.

764. It was also common ground that Ross at no time took long service leave. Provision should have been made, in all, for a period of 26 weeks such leave; of which provision should have been made for about 13 weeks leave in the period after Mr Cashin's death. Provision was not made, and no such leave was ever taken.

767. The extent to which Ross, after Mr Cashin's death, accrued but did not take annual leave, and should have accrued but did not take long service leave underlines the extent of his commitment to working hard on the farm. It also highlights the fact that, had he taken his leave entitlements, the bottom line of the successive partnerships' financial performance must have been adversely affected. It was inevitable that replacement labour must have been hired.

770. There is another aspect of leave - annual and long service - not taken: depreciation in quality of life. It is one thing to work hard and enjoy it; and I do not doubt that Ross did enjoy working hard. It is another thing to let work rule your life; and in Ross's case I am confident that it did so. Particularly, perhaps, as he grew older, I think that the want of holidays would have depreciated Ross's quality of life.

773. I turn to Tim. I have earlier expressed conclusions that between January 1992 and August 2000 he worked hard, for long hours, doing good work; and that over the years he successfully took on increased responsibility. Little need be added to those conclusions. Tim gave evidence that from age 17 he has worked, on average, about 60 hours per week. I accept that evidence. Then, as to holidays, Tim was employed for eight and half years. In that period he accrued an entitlement to 34 weeks' annual leave. His evidence, which I accept, was that he took about two weeks' holidays per year on average. In short, in eight and a half years he accrued but did not take 17 weeks' annual leave.

776. The small amount of annual leave taken by Tim is a measure of his commitment to the farm. As in the case of Ross it also reveals a financial benefit to the successive partnerships; and it bears upon quality of life. A young man is reasonably entitled to have some time away from work to enjoy life. At the beginning of his employment Tim was only 17. When the last partnership ended he was still young, and with a young family. I think it inevitable that the little leave that he took depreciated the quality of his life.

782. For the financial year 1986/87 Ross's salary was $26,100. By the year ended 30 June 1995 it had increased to $36,400. There it remained until 30 June 2000. Ross was also provided with a vehicle for use in farming activities, a mobile phone and meat. Rental of his home phone was paid by the partnership, as was a proportion of call costs. He lived at Nisa Bula, the property owned by his wife. Speaking generally, the property was leased to the partnership. The arrangement was apparently informal. His personal and the partnership tax returns do not suggest that the house was treated as a perquisite of his employment.

785. Mr Mike Stevens, a well known agricultural consultant, gave evidence of what would have been an appropriate employment package for a person with Ross's superior skills on the open market in the financial year 1999/2000. The overall figure was $65,000, this including a cash component of about $45,000, provision of a house valued at $9,000, and a taxation burden to the employer of some $4,000 by reason of the provision of a house. The balance consisted of perquisites similar to those in fact provided to the plaintiff; and a superannuation contribution.

788. Mr Stevens also did a calculation which, checked against empirical evidence, quantified the appropriate annual salary packages for a person such as Ross from 1986 onwards. The value of the overall package for the financial year 1986/87 was $37,000.

791. Counsel for Frances pressed Mr Stevens that, all things considered, the package provided to Ross over the years had not been obviously too low. Mr Stevens did not agree. In any event, in his final address counsel adopted a different position. He argued that Ross's package had been at a commercial level in 1986/87, that it had remained at such a level until the mid-1990s, but that it had then slipped. At that time the partnership had been sustaining losses - at least for tax purposes. He submitted that it would not be unfair to calculate the shortfall at $140,000 for the entire period 1986 - 2000.

794. In my opinion Ross should be considered, in 1986 and thereafter, to be a person at the top of his profession, able to command a salary commensurate with that status. I accept the burden of Mr Stevens' evidence as to the value of the package that such a person should reasonably have received.

797. What was the shortfall over the period 1986/2000? It is impossible to be precise. Working upon Mr Stevens' whole of package figures, and Ross's salary, the accountant, Mr Perrett, calculated a shortfall of $270,555 for the period commencing 1 July 1986 and ending 30 June 2000. That figure is too high, at least because it ignores the perquisites provided to Ross, perquisites included in Mr Stevens' figures. Further, it does not address the question of provision of accommodation. If a man such as Ross could provide his own accommodation, it does not follow that there would not be room, and need, for an employer to increase the cash amount paid to such a person. On the other hand, it does not follow that the cash component would increase by the entire value of accommodation provided, plus tax payable, as assessed by Mr Stevens. Doing the best I can, and assuming that Ross, living in the vicinity of the Cashin farms, had been engaged in 1986 in accordance with his value on the open market, I think that the gross shortfall in cash actually paid was in the range $145,000 - $160,000; a very substantial amount, but closer, I note, to the amount contended for by counsel for Frances than by the amount relied upon by Mr Perrett in his lost opportunity calculations - about which I shall say something later on.

800. I turn to Tim. As a family member his employment was not governed by award rates of pay. Nonetheless, the Award gives some guide to what Tim should reasonably have been paid. It is not a perfect guide, because family considerations intrude - in this case detrimentally to Tim and to the advantage of the successive partnerships.

803. Tim's salary in his first full year of employment (1992/1993) was $11,078. By the year ending 30 June 2000 it had risen to $27,560.

806. The Pastoral Industry Award 1998 and its predecessors went into evidence. The provisions which could be pertinent for comparative purposes were not explored. I should have thought, reading the Awards, that for much of the period from 1992 Tim would have been, if subject to them, a senior station hand grade 3. As at September 1999 the minimum rate payable for a 38 hour week for such a person, keep not being provided, was $435.50. The relevant overtime provision set up alternatives. Overtime was for the most part to be paid at the rate of time and a half.

809. If Tim had been an award employee in 1999/2000, then working the average hours that he did he would have earned in the order of $810.00 per week. Comparing his actual salary and notional award earnings for that year, the shortfall was about $14,500.

812. It does not follow from the calculation I have just made that the notional shortfall in the part year commencing January 1992 and in each succeeding year was of equivalent dimensions. According to the Awards, Tim, as a junior, would only have been paid a percentage of the rate for a station hand grade 1 until he attained the age of 21. That said, there was in every year a significant notional shortfall. By reference to the Award then applicable, for 1992/93 (at which time standard hours per week were still 40) the shortfall was a little over $9,000. In the next year the shortfall was about $7,900. And so on. The overall shortfall in the eight and a half year period, by reference to award rates of pay, was very substantial indeed - something in the order of $80,000.

815. Counsel for Frances argued, however, as I have previously noted, that Tim had not been under-renumerated to any significant extent. He had run his own herd on Nisa Bula, in reality rent-free; and in consequence of conducting that business had been able to make tax claims for motor vehicle expenses that were much in his favour. This had reduced the true extent of the profit which he had derived from his own herd.

818. Tim's tax returns show that from the financial year 1995/1996 onwards he paid his mother a small amount of rent. It began at $600 a year. By the year ended 30 June 1999 it had increased to $3,000. Marjorie said that she paid tax on the amounts, but because Tim was struggling she gave them back to him. So counsel was correct to submit that rent was not in the end paid by Tim; a small point, made even smaller by Tim's evidence that, inevitably with Frances' knowledge, he regularly contributed to the cost of fertilising Nisa Bula - that property being used to carry partnership stock as well as his own herd. His tax returns show that in the year ended 30 June 1997 he spent $2,734 on fertiliser; and that in the succeeding years he spent $2,416, $5,286 and $4,591. Note also, to complete the picture, that Tim's cattle were apparently fed fodder that he purchased - that is, they were not fed partnership fodder; and that the work that Tim had to do with his own stock was kept to a minimum by sensible work practices[98].

821. Whilst counsel for Frances was correct in pointing out the situation as regards rent, when all the circumstances are examined there was really no substance to his contention that this factor of itself made up for any notional under-remuneration.

824. As to counsel's second contention, it is true that Tim made tax claims for motor vehicle expenses in connection with his own business. That had the effect of diminishing the profitability of his business, which in the nine years between 1991 and 2000 ran at a profit eight times, and provided a very modest average profitability of just over $3,000 a year. It can be said that the mere existence of the business permitted the claims, not shown to be improper, to be made. But in my opinion that does not provide a basis for concluding that in substance Tim was not under-remunerated over the years.

827. In all, though accepting the position that Award rates are not an exact basis for estimating sufficiency of remuneration in the case of a family member working on a family farm, I think it is nonetheless crystal clear that Tim was substantially under-remunerated over the years.

830. Were the long hours, the hard and innovative work, the lack of holidays, the under-remuneration of Ross and Tim a detriment suffered by one or both of them? If so, was the detriment suffered in reliance on the expectation created by Frances' statements? In any event, did Frances know that any detriment had been suffered? And did Frances know that any such detriment had been suffered in reliance upon such expectation?

833. In my opinion it is clear that the work done, and lack of holidays, all for inadequate remuneration, caused substantial detriment to each of Ross and Tim. The detriment was physical, financial, and in the case of holidays not taken, one expressed in terms of depreciation in the quality of life. It was physical simply because each of Ross and Tim pushed themselves to work beyond that which is reasonable. It was financial because under-remuneration inhibited Ross from having the opportunity to invest, and deprived Tim of the opportunity to improve the financial position for his young family. Moreover, the amount of hours invested by Ross in the job left him no time to exploit his inventions, most notably the cattle crush to which reference was made in the evidence. It deprived him also of opportunities which his publicised expertise with stock may well have given him to engage in farm consultancy work.

836. In my opinion it is also clear that if Frances' change of position attracts no remedy in favour of the plaintiffs, they will suffer a major future detriment. That is, Ross and Tim will have worked hard and innovatively for long hours, for inadequate remuneration, in reliance upon a mirage.

839. I next consider that the detriment that I have identified was suffered and prospectively will be suffered in reliance upon the expectation created by Frances' statements.

842. In so concluding I bear in mind the fact that it is not necessary that the pertinent statements were the sole cause of particular action. I bear in mind also the "common sense and rebuttable presumption of fact" that may arise "from the natural tendency of a promise"[99]. When a person by a statement or statements creates a particular expectation, and others act in a way which is compatible with believing and acting consonantly with that expectation, it is a sensible starting point that there is a relationship of cause and effect. In the present case, the pertinent statement having first been made, and then repeated from time to time over a long period, an expectation was surely created that Tim would in due course inherit all the land and the business. That was a powerful reason why Ross and Tim should work in the way they did, for the hours they did, eschewing holidays, all for inadequate remuneration. It provides a reason why Ross would counsel Tim not to leave the farm and go dairying. It provides a reason why Ross should not take up commercial opportunities that seem likely to have been available to him; or himself take up an opportunity of returning to dairy farming or obtaining a position at a package compatible with his skills. It provides a reason why Ross would be prepared to incur unrecompensed expenditure by way of motor vehicle and personal expenses in pursuing partnership activities - about which I shall say something a little later. It provides a reason why Tim would use his tractor at no cost to the successive partnerships in pursuing partnership activities - about which, again, I shall say something a little later.

845. Counsel for Frances submitted, however, that there was no cause and effect. He contended that each of Ross and Tim would have worked in just the same way and for just as little, taking as few holidays, whether or not the expectation had been created. He argued that this was a family farm, in which circumstances it should be supposed that men will work as these men did. He pointed out that Ross had worked extremely hard and for long hours and for little pay in Mr Cashin's lifetime. He pointed out also that Marjorie had a proprietary interest in the land and business after Mr Cashin's death. So there would always have been the incentive for Ross and Tim to work as they did. He argued also that, had the expectation not been created, the land and other assets would have been acquired; in which case Ross and Tim would have worked as they did.

848. It is, of course, true that Marjorie had a proprietary interest in the land and business after her father's death. But in the absence of the expectation created by Frances' statements there was small prospect that all the land and the business could be retained in the family. There would have been a much lesser incentive to work as Ross and Tim did in the relevant period.[100] Moreover, there would have been a lesser incentive to eschew alternative farming and other opportunities. Those considerations also provide an answer to the proposition that the two men would have worked as they did because the land and other assets would have been acquired in any event.

851. It is next the case that Ross was a hard worker before Mr Cashin died. But in my opinion the expectation created by Frances' statements should not be excluded as a cause of him working as he did, eschewing other opportunities, between 1986 and 2000. The carrot lay in all the land and the business being retained, one day to be inherited by Tim. It goes against human nature not to think that the carrot was likely to produce an enhanced commitment to improvement of the land and the business.

854. So far as Tim is concerned, again I reject the submission that he would have worked as he did, eschewing other opportunities, accepting whatever wages he was offered, absent the expectation created by Frances' statements.

857. I do not for a moment say that one question and answer at trial led me to that conclusion that Ross and Tim were influenced to work as long, hard and innovatively as they did because of a belief that one day all the land, stock and plant would be inherited by Tim. Nonetheless, one question and answer provided a likely window into their thinking. When counsel for Frances cross-examined Mr Morris-Thomas he asked this question and obtained this response:

"And you have talked about the sometimes long hours, and hours outside what people in the city might think are normal working hours, and I take it that although it might seem exceptional to some who don't live out in the country, to a country man that is not that exceptional?- - - Well, it depends whether you are working for yourself or you are working for a boss, doesn't it."[101]

861. Counsel for Frances submitted that, if Ross and/or Tim worked as they did for inadequate remuneration in reliance on the expectation that one day Tim would inherit all the land and the business, then his client neither knew that they were under-remunerated nor knew that they worked in the way that they did for the remuneration that they did in reliance upon that expectation.

864. Frances certainly knew of the quality and hours of the work done by Ross and Tim, just as she knew of the few holidays they took, the absence of provision of long service leave for Ross, and the actual remuneration they received. Counsel argued that she should not be taken to have understood that their remuneration was inappropriately low. His submission was founded on the proposition that in 1986 the cash component of Ross's salary was not much below Mr Stevens' figure, Frances' alleged belief that farm wages are traditionally low, and her evidence that she always agreed with whatever wage increase Marjorie proposed should be given to either Ross or Tim.

867. Let me deal first with three matters of detail. First, the cash component of the salary set for Ross in 1986 was somewhat below the likely cash component of a man with Ross's skills who provided his own accommodation. Perhaps more importantly, I accept Ross's evidence that he commented unfavourably, in Frances' presence, about the salary then fixed.

870. Second, Ross's salary stalled in the mid-1990s. True it is that the partnership was not then operating profitably, at least according to its taxation records, and probably in fact. But the cost of living did not stand still; and the farm, so long as it was retained, had to be run - and run efficiently to minimise losses.

873. Third, generally speaking it is true that Tim's salary was fixed from time to time by Francis agreeing with a proposal put by Marjorie. But the Mitsubishi Magna incident is suggestive, I think, that Frances had a pretty clear view about the appropriate wages for a young man with prospects on a farm.

876. I turn to a more general matter. For reasons previously described I think that Frances had some knowledge both about wages paid in the general community and about the wages that must have been paid for other labour if Ross and Tim had either not worked on the farm, had worked less hours than they did, or had taken more holidays than they did. I can accept that Frances had some belief that farm salaries/wages tend to be low in relative terms. But I consider that this essentially reflected her knowledge of what people such as Ross and Tim were paid - people who as a matter of expectation had a complete proprietary interest (though not directly in Ross's case) in the land and business conducted thereon.

879. All in all, I consider that Frances certainly knew that the salaries of Ross and Tim were low by conventional standards, that by such standards they took few holidays, and that provision should have been made, but had not been made, for Ross's long service leave. She believed that this regime was nonetheless appropriate, I consider, because she understood that Ross and Tim were working towards the goal that one day all the land and the business would be inherited by Tim. That would be so if the expectation which she created was fulfilled.

882. In those circumstances I think there is a powerful inference that Frances knew that Ross and Tim had relied upon that expectation in doing what they did, that is, in working hard, and for long hours, with few holidays, for little remuneration.

885. I do not conclude that Frances had knowledge that either Ross or Tim suffered any depreciation in their quality of life by reason of working as they did in reliance upon the expectation which she created. I think that she did not turn her mind to the matter.

888. Neither do I conclude that Frances knew that either Ross or Tim had been influenced not to take up other employment opportunities by reason of the expectation she created; or that Ross possibly had not exploited other commercial opportunities because he was immersed in work on the farm. I have already concluded that she did not know about Tim's Dumbalk dairy farming opportunity. I now conclude that she did not know about the different opportunities which Ross might have taken up or exploited. As to the latter, I think the subject never crossed her mind.

891. I turn to the alleged detriments which I earlier numbered (2), (4) (5); met in part by the submissions of Frances' counsel which I noted at (H)(iii) and (iv). Generally speaking, the evidence supported Ross's claims. But I consider that the monetary detriment which he suffered should be adjusted for the taxation benefits which he obtained, and for the likelihood that some part of the business use he claimed was referrable to the Dumbalk dairy-farming enterprise. Having regard to the evidence bearing on the incidence of the pertinent expenditure, I assess the detriment suffered by Ross at 85% of the after tax figures - in all, about $67,000.

894. What, next, of the use of Tim's tractor? I am satisfied that between January 1992 and June 2000 it was used for the partnership's advantage. Tim was not paid for its use. By the statement of claim he alleged an average 100 hours use each year, at a reasonable hourly rate of $20. His evidence justified a larger claim[102]. But no larger claim was thereafter raised. I assess the detriment suffered by Tim at the amount claimed, that is, $16,000.

897. I mentioned earlier an allegation that Ross had used his own equipment in partnership work, whereby it had suffered loss of value, a claim for $5,000 being raised by particular (d) subjoined to paragraph 30 of the statement of claim. This very small alleged detriment was obliquely raised in opening, and directly though briefly in counsel's final address. But it does not seem to have been the subject of evidence. I put it to one side.

900. I accept the plaintiffs' case that Ross used his motor vehicle and that Tim used his tractor for partnership purposes in reliance upon the expectation which Frances created. More doubtfully, I reach the same conclusion with respect to Ross's personal expenses. I do not mean to say that either Ross or Tim had the expectation in mind when getting into the vehicle or onto the tractor. Rather, use of those vehicles flowed from the work that they did, in the way they did it, not looking for immediate reward, the expectation playing a causal role in that regime.

903. It seems very likely to me that Frances knew that Ross used his motor vehicle for partnership work at times; and that Tim used his tractor for such work. The tax returns of the partnership show that they were not remunerated for such use. Use implies running costs and wear and tear. Frances knew, as I have concluded, that Ross and Tim worked as they did in reliance upon the expectation that she created. I think, in the circumstances, that she knew that Ross and Tim suffered detriment in the non-renumerated use of their respective vehicles for farm purposes.

906. I turn to the lost opportunity claim raised by Ross. I briefly referred to it earlier. Ross was under-remunerated. He was deprived of funds which he could have invested in some way. He did suffer detriment in that connection. The funds of which he was deprived were not, however, so large as Mr Perrett, the accountant, assumed. He took as a starting point an overall shortfall of about $270,500 between July 1986 and June 2000. I have estimated the overall shortfall as between $145,000 - $160,000.

909. Mr Perrett made a series of calculations of the effect of the loss. They made assumptions as to the tax, if any, payable upon the additional funds at the time of their receipt, the interest that could have been earned on such funds, and the tax, if any, payable upon earnings on such funds. Counsel for Ross ultimately relied upon a calculation which assumed an interest rate which varied between 14.75% in the year ending 30 June 1987 and 6.7% in the year ending 30 June 2000; and which assumed a nil tax effect in both the contexts to which I referred a moment ago. Counsel for Frances submitted, contrarily, that an interest rate of 6% should be used throughout, with a tax incidence of 35% at both relevant points.

912. I think that, had Ross been possessed of surplus funds, he was likely to have put them into rural land and business conducted thereon. Mr Perrett's evidence showed that a 6% return, partly in capital appreciation, partly in income, could be expected in the long term. I therefore accept the submission for Frances that a 6% interest rate should be assumed throughout.

915. The tax position in the hypothetical situation is difficult to assess. The only alternatives offered, at the two relevant points, were a nil incidence and a 35% incidence. I think that, had the available funds been invested in rural land and business, it is probable that Ross would not have had to pay tax on the assumed 6% return. But it does not follow that he would not have had to pay some tax upon the additional funds on their being received. I think that some allowance should be made for tax at the first point.

918. I take as the starting point for the particular detriment now under consideration an amount at the mid-point of the range of earnings deprivation which I earlier established; that is, $152,500. I assume an initial tax impact of 15%, investment at 6% compounding, and a nil tax incidence upon the investment return. Adopting Mr Perrett's spreadsheet DP-5B, I value the lost opportunity - including salary shortfall - in an amount of $190,500.

921. The lost opportunity flowed directly from the regime that Ross followed in reliance upon the expectation which Frances created. But did Frances know that it was a detriment that he suffered in consequence of such reliance? If the question requires, for an affirmative answer, that Frances particularly turned her mind to the matter, then I would answer it no. But if it was enough that Frances knew that Ross had been under-remunerated over the years, then because greater remuneration means that there are more funds available for disposition, because Ross was obviously a careful man with money, and because money invested for the most part yields a return, then I would answer the question yes. It is the latter answer which I think is the correct one.

924. I turn now to the competing submissions concerning the delayed opportunity of purchase of the interests which Frances successively inherited in the land and the business. I earlier summarised them in plaintiffs' submission numbered (7) and in the submissions of counsel for Frances lettered (A), (B), (D), (E) and (F)

927. I have no doubt that even before Mr Cashin's death Ross and Marjorie had a strong desire to retain the land and business so that one day, assuming Tim continued and expanded his interest in farming, he could inherit the land and business and so continue the Cashin family's long association with the district. Knowing, as they undoubtedly did, the way in which the pieces of the farm fitted together, I have no doubt that they wished to retain all of the land if they possibly could.

930. It is, I think, clear they expected to be put in the situation, after Mr Cashin's death, where they would need to buy out the interest which they knew Frances would then acquire in the land and stock. It is also clear, in my opinion, that they were prepared to do so in order that Tim should one day inherit the whole. The representations made by Frances, from soon after her father's death, to the effect that the land - and, explicitly or implicitly, the business - was all to be kept, to pass down to Tim in due course, meant that the issue could be put to one side; and it was.

933. Not until Frances gave notice of her intention to dissolve the partnership, at the birthday dinner held in August 1999, did the situation alter. That declaration of intention led on to the initiation of the partnership proceeding. That proceeding, as I have said, was settled shortly before trial, agreement being reached that the partnership be dissolved as at 30 June 2000.

936. In 2000, Frances' interest was 50% in the land, stock and equipment. In the period 1986 - 1996 it had been 50% in Home Farm, Mac's and The Bush; 25% in Dunlops and Days; and 25% in the stock.

939. Putting to one side the question whether the amount which Ross and Tim would have to pay to purchase Frances' interest in the land as at 30 June 2000 was greater in real terms than the amounts which must have been paid in 1986 or 1988 or 1996, I consider that the expectation created by Frances' representations did cause the plaintiffs substantial detriment. Relying upon that expectation, at first Ross[103] and then Ross and Tim took no steps to purchase Frances' interests in the land as she acquired them. Had Ross purchased the interest in the land which Frances inherited from her father in, say, 1988, he would have had something in the order of eight to nine years to pay the purchase price before he and Tim were confronted by the need to purchase the interest in land acquired by Frances upon her mother's death - that is, 25% of each of Dunlops and Days.

942. At December 1985 valuations, by payment of about $609,000 to Frances, Ross and Marjorie could have acquired all of Home Farm, Mac's and The Bush, and a 50% interest in each of Dunlops and Days. Their equity in the five blocks would then have been some $1,218,000. Mrs Cashin's equity would have been about $380,400. It could not be doubted that, whether with or without Nisa Bula, Ross and Marjorie would have been easily able to borrow sufficient to fund the purchase of Frances' interest in the land. There is a question whether interest repayments could have been funded from partnership income accruing to Marjorie - even in circumstances where the acquisition of Frances' interest in the stock would have given Marjorie a larger share of profits. But bear in mind the fact that, in addition to partnership profits, Ross was earning a wage and Marjorie was receiving rent for Nisa Bula. Bear in mind also the fact that the partnership recorded a profit - notwithstanding substantial capital expenditure, and thus a substantial allowance for depreciation - in each of the financial years ended 30 June 1986 - 30 June 1994. All in all, I consider that Ross was correct to say that the purchase of Frances' then interest in the land would have been possible at worst by selling "one or two of those outlying blocks"[104]; this only requiring Mrs Cashin's agreement if they had been selected for sale.

945. In concluding that purchase of the interest acquired by Frances in the land on her father's death could have been afforded, I have taken into account the fact that Ross and Marjorie would also have needed to acquire Frances' 25% interest in the stock. Frances' counsel submitted that the market price of stock on 30 June 1986 was conservatively estimated at $405,000. Let that be accepted. Let it be assumed that a figure of that order remained applicable in the next several years. Acquisition of Frances' interest in the stock in the period 1986 to 1988 would thus have involved expenditure of around $100,000 by Ross and Marjorie. Had they needed to borrow, they certainly would have had equity in the land sufficient to enable such a borrowing. But it cannot not be assumed that borrowing would have been necessary.

948. Assuming, next, that it became necessary after Mrs Cashin's death to purchase from Frances the share she then acquired in Dunlop and Days, in stock, and in plant, what would have been involved was the purchase of a 25% interest in each of the four. The land would have been worth somewhat less than its valuation as at June 2000. The market value of the cattle would have been substantially less. Plant, at its written down value, would not have involved a large sum.

951. I conclude, although the partnership had not been operating profitably since the year ending 30 June 1994, that Marjorie, Ross and Tim could have made the acquisitions, borrowing against very substantial equity, without the need to sell further land. By the time of Mrs Cashin's death each of Ross and Tim was a wage earner. Moreover, Marjorie was receiving rental for Nisa Bula, in addition to making small drawings from the partnership. Had Frances' interest in the land, stock and equipment been acquired, rental may have ceased. That would have been reflected in larger operating profits (or smaller losses). Other than that, the $17,000 interest paid to Frances each year would doubtless have ended, the loan being repaid. Again, Tim was deriving a little income from his cattle operation; whilst Ross's tax losses in his interest in the Dumbalk dairy farming operation do not suggest, on close analysis, that the business was a substantial drain on his income.

954. I have thus far dealt with the hypothetical. Let me turn to the actual situation. If the expectation created by Frances' representations is not fulfilled, then according to the terms of the settlement of the partnership proceeding any or all of Marjorie, Ross and Tim are entitled to acquire any of the assets of the partnership at market value. In order for them to acquire Frances' interest in the partnership assets they would need to pay to the partnership, at prices determined as at 30 June 2000, an amount in the order of $1.92M - that is, representing 50% of her interest the value of the land ($1,426,500), 50% of the market price of stock ($419,753), 50% of the written down value of plant and equipment ($49,597.50) and 50% of the value of shares (approximately $25,000). It does not follow that Frances would receive such an amount. As an equal partner, and under the settlement, she would receive a 50% share in the net assets of the partnership as at 30 June 2000. According to the partnership tax return for the year ending 30 June 2000 there were current liabilities of $306,051. In consequence, I think, Frances would receive out of the partnership dissolution some $1.77M. In addition, the partnership would be obliged to repay her loans (forming part of the partnership liabilities) amounting to $120,000.

957. Focussing upon the amount that all or any of Marjorie, Ross and Tim would need to pay in the described situation it is true that such amount would reflect the value of money as at 30 June 2000; that value being substantially less than it was in 1986 and 1988. True also it is that counsel respectively made concessions: for Frances, that if the plaintiffs were denied all relief in this proceeding, it would be necessary for they and Marjorie to sell Home Farm, Mac's and Days in order to finance the purchase of Frances' interest in the remaining parcels of land and the business; and, for the plaintiffs, that if those properties were sold they and Marjorie would not lack the capital to purchase the balance of the land and business. Nonetheless, it seems inescapable to me that the burden which would be imposed on the plaintiffs and Marjorie if they were to seek to buy out Frances' present interest in the land and business would be much more onerous than it would have been had they been able to stage those purchases. In that connection - I emphasise it is only one of a series of matters which are pertinent - I consider it inevitable that Home Farm, Mac's and Days would need to be sold. I do not think that such a course was inevitable had staged purchases been made.

960. I noted earlier the submission of counsel for Frances that, if the plaintiffs and Marjorie were now put to purchase Frances' interest in the land and business, it would be no more costly for them than it would have been to make the purchase soon after Mr Cashin's death. Counsel argued that the land and stock could each be purchased for amounts comparable in real terms with their values in 1986; and thus that the plaintiffs have suffered no detriment by not earlier purchasing Frances' interest in land and stock; whilst Frances has gained no benefit in retaining them.

963. Counsel relied upon valuations of the land as at December 1985 and June 2000. I have already made some reference to those valuations in paragraphs 293 and 297. I now make it clear that I accept evidence as to the value of the land at the earlier time. Value at the later time, I note, was agreed. It is convenient to summarise the material. Thus:

967. Counsel further relied upon evidence of changes in the CPI All Groups Index[105]. By recourse to this evidence he submitted that between 30 June 1986 and 30 June 2000 the index increased by 76.9%, whilst the value of the land, averaged out, increased by 78.5%. So despite capital expenditure, he argued, there had been no increase in real terms in the value of the land since 1986. Indeed, the land which had most appreciated in value had been the land upon which there had been lesser expenditure.

970. Counsel for the plaintiffs disputed the calculations which I have just set out. He referred to and relied upon evidence given by Mr Perrett. He submitted also that it was immaterial whether Frances had benefited by retaining the land. I have dealt already with the last of these matters.

973. In my opinion, contrary to the submission of counsel for Frances, the plaintiffs will suffer detriment if they must buy Frances' interest in the land at its 30 June 2000 value. Mr Perrett gave evidence, which I accept, that in the area where the land is situate the long term experience is that capital growth is in the order of 3- 3.5% per annum[106]. He said in cross-examination that in the past few years properties have not appreciated very much[107].

976. Assuming, favourably for Frances, that appreciation had been an average compounding 3% per annum, then if the index on 1 July 1986 had been 100 it would have been about 152 on 30 June 2000. In that event it is clear that there was disproportionate increase in the value of this land between 1986 and 2000. Accepting the calculations advanced by Frances' counsel, it should be concluded that whilst the cost of acquiring her interest in the land would not be higher in real terms as at 30 June 2000 than it would have been on 1 July 1986, the cost of acquisition would be considerably greater than might ordinarily have been expected. So the amount that the plaintiffs would have to pay, absent relief, for the interest in the land acquired by Frances on her father's death would be more than would ordinarily have been expected having regard to its June 1986 value. That, I consider, should be regarded as a detriment to them.

979. Why is that so? There are a number of reasons. First, the plaintiffs for entirely understandable reasons would wish to buy the particular land; not any other land. They would thus be condemned to buying an interest in land which has disproportionately increased in value since 1986. Second, the disproportionate increase in value no doubt reflects the way in which they have worked to improve the land. [108] I need say no more about the manner and quality of their work, their under-remuneration, lack of holidays and so on. If they are condemned to buy Frances' interest in the land then they will be paying for land which has disproportionately increased in value since 1986 by reason of work for which only a fraction of the under-remuneration is contractually recoverable. Third, the value of the land increased disproportionately between 1986 and 2000 by reason of a work regime followed by Ross and Tim which I consider impacted detrimentally upon their quality of life. Fourth, I do not accept the thrust of the submission that by purchasing the land the plaintiffs would gain the benefit of expenditure of partnership moneys, this denying a conclusion that any detriment would be suffered. I do not consider that the disproportionate increase in the value of the land can be simply attributed to expenditure of partnership moneys. Much turns, in my view, on the quality and the hours of work done by Ross and Tim; work for which they were under-remunerated. Moreover, the availability of partnership funds depended, in part, upon Ross and Tim being under-remunerated; and upon their working in a way that diminished the need for expenditure on outside labour.

982. Thus far I have dealt with and rejected the submission made for Frances that the plaintiffs suffered no detriment in taking no steps before the birthday announcement to acquire the interest which Frances acquired in the land after her father's death.

985. I should deal briefly with the issues of reliance and knowledge in that connection. I am abundantly satisfied that Ross took no steps to effect purchase at an early time in reliance upon the expectation created by Frances; and that this position flowed on to Tim. I also have no doubt that Frances knew that Ross, and later Tim, took no steps in reliance upon that expectation.

988. I turn to the submissions made for Frances concerning the amount that the plaintiffs would have to pay for stock as at 30 June 2000 in the event that the expectation created by Frances went unfulfilled. The main submission in that connection was that such amount would be no more in real terms than they would have had to pay on 30 June 1986. It was a submission which depended upon an analysis of tax returns for the financial years 1985/1986 and 1999/2000.

991. Counsel's submission took as its starting point the book value of stock as at 30 June 1986. By reference to the type and value of stock on hand as at 16 December 1985 counsel argued that the market value of the stock on hand on 30 June 1986 was, conservatively, $405,031. Applying the CPI Index to that sum, the market value of stock on hand on 30 June 1986 became, as at 30 June 2000, $708,804. The market value of stock on hand on 30 June 2000 was $839,506. Under the terms of the settlement of the partnership proceeding the stock could be purchased at 30 June 2000 values by any or all of Marjorie, Ross and Tim. The evidence showed that in the period between 30 June 2000 and trial stock prices had increased by about 30%. Any detriment to the plaintiffs, to be assessed presently, was thus eliminated. That was so even making adjustment for deferred tax.

994. I do not agree that the expectation which Frances created has resulted in the plaintiffs suffering no detriment if they are required to buy Frances' interest in the stock as at 30 June 2000. At least they lost the opportunity to stage the purchase of the interests in stock which she successively acquired; an advantage in itself. Moreover, had they purchased the interest which Frances acquired upon her mother's death in the year or so thereafter, they could certainly have purchased at a market price well below that obtaining in 2000 and 2001.

997. Counsel for the plaintiffs challenged certain of the assumptions upon which the submissions made for Frances rested. I do not consider that the state of the evidence permits a clear conclusion whether the assumptions were supportable. Matters could have been raised in cross-examination of Ross; but they were not. In all, I consider that the exercise was of uncertain validity.

1000. But even if counsel's stock analysis was accepted, it producing a market value difference of about $130,000 as at 30 June 2000, I remain doubtful that detriment occasioned by purchase of a 50% interest in stock - that is, about $65,000 - would be eliminated by the effect of the increase in the market value of stock since that date. The taxation implications for assumed sales in June 1986 and June 2000 were not thoroughly canvassed.

1003. Investigation whether there is detriment in the present connection also, arguably, would justify there being brought to account the fact that under the terms of settlement of the partnership dispute Frances is entitled to receive, from 1 July 2000, out of partnership assets and separately from interest of $17,000 a year, 7% each year on the value of her interest in the net assets of the partnership.[109] In calculating the amount payable, the value of the land, as well as of stock, plant and equipment and shares, is to be brought to account. I do not, however, rest my conclusion that the plaintiffs have suffered detriment upon this consideration.

1006. I should briefly refer to counsel's argument that Frances gained no benefit by retaining her increasing interest in stock in the period 1986 to 2000 because returns were poor; and that, as a mirror, the plaintiffs suffered no detriment by not acquiring her interest in that period.

1009. The partnership tax returns show, as I earlier noted, periods of profit and periods of loss. They show that profit on the cattle account itself was generally quite good. But it was counter-balanced by overall farm expenditure.

1012. It is, I think, inescapable that had the plaintiffs acquired Frances' interests in the stock as she successively acquired them, they would have suffered years of overall loss for tax purposes; and probably in fact. But it does not follow that the immediate impact of such losses would outweigh the benefit flowing from acquisition of a valuable asset in a staged way at a lesser amount in real terms than that for which the asset can now be purchased.

1015. So far as Frances' position is concerned, I have concluded already that benefit to a representor is not necessary in order that such person be held to the expectation which he or she has created. In any event, retention by Frances of her interest in the land and stock was not devoid of advantage to her; and so far as benefit could be relevant it should not be measured, as I said earlier, by comparison with the hypothetical consequences of an entirely different course which was not followed.

1018. All in all, I am satisfied that the plaintiffs suffered a definite but probably modest detriment by relying upon the expectation created by Frances and in consequence not seeking to acquire her increasing interests in the stock before the partnership was dissolved. Frances knew of the expectation she had created. She must have known that it provided a reason why they would not take any such step. But I doubt that she knew that their inaction was to their detriment - though depending upon the time at which she addressed her mind to the issue a different conclusion could be reached.

1022. The plaintiffs have satisfied me that Frances made statements creating the expectation that one day Tim would inherit all the land and the business - this involving, from her standpoint, disposition of her interest to Tim by her will. The plaintiffs have further satisfied me that in reliance upon the expectation thus created they have each suffered substantial detriment - both financial and other; and that if the expectation which Frances created is not fulfilled they will suffer an important detriment of the kind referred to by Dixon J in Grundt[110]. The plaintiffs have satisfied me, again, that Frances intended that they should rely upon the expectation which she created, that she knew of most but not all of the detriments they have suffered, and that she knew that there was a causal link between the expectation created and the detriment suffered.

1025. The question arises, what is the minimum equity necessary to do justice to the plaintiffs? For the plaintiffs it was submitted that the court should impress a constructive trust in favour of Tim over Frances' interest in the land and business, or at least over most of the land and other assets. Counsel accepted that Frances had a certain entitlement. He submitted that it should be satisfied either by orders having the effect of transferring to Frances the entire interest in certain of the parcels of land; or else by an order for a money sum secured against the land and other assets of the business. For Frances it was submitted that any relief should be confined to an order for a money sum in favour of one or both of the plaintiffs, to be paid out of the assets of the partnership and secured against them.

1028. In my opinion a constructive trust must be impressed in favour of Tim over Frances' interest in the land and other assets of the business in the particular circumstances of this case. I am satisfied that nothing less would suffice. I further consider that the entitlement which Frances definitely possesses should be reflected by an order for payment to her of a money sum, secured against Tim's interest in the land and other business assets, rather than by an order for conveyance to her of the entire interest in one or more of the parcels of land. I must explain these conclusions. I do so by considering various scenarios.

1031. First, if Frances was permitted simply to resile from the expectation which she created, any one or more of Frances, Marjorie, Ross and Tim would have to pay the partnership a sum in the order of $1.92M to acquire her interest in the land and other partnership assets. Frances, for her part, would receive from the partnership about $1.77M, representing the net value of her interest in partnership assets as at 30 June 2000. In addition, she would be entitled to be repaid by the partnership loans totalling $120,000 and interest thereon; and also interest upon the net value of her share in the assets from 1 July 2000.[111]

1034. Second, if Frances is, by imposition of a constructive trust, held to the expectation which she created, it certainly does not follow that she is bereft of any entitlement. Mr William Buttler, an actuary, gave evidence of the value of the notional life interests of Frances, Marjorie and Tim in property estimated to have a pre-tax value of $4M, and a possible after tax value of $3M. He assumed for his calculations that Frances and Marjorie would share equally in the income earned by the property in their lifetimes, and that Tim would have the reversionary entitlement of the entire property. His valuation was based on assumed gross returns and values, ignoring tax except to the extent that the supplied capital valuation already accounted for tax. He assumed a long term income return of 3% per annum, and a capital accretion in the long term of 3% per annum. He applied a discount rate of 7.5%. He made use of the Australian Life Tables 1995-1997. He assumed that both Frances and Marjorie enjoyed a normal standard of good health. He valued the interests of Frances, Marjorie and Tim as follows:

1038. The technique which Mr Buttler employed was described by him as the standard procedure for valuing life interests in succession. That evidence was not challenged in cross-examination.

1041. In my opinion Mr Buttler's evidence made use of assumptions which were generally justified by the evidence otherwise. The assumed value of the property - by which the witness evidently meant the land and business assets - was a little high; and he made an assumption concerning Frances' state of health which was not entirely justified[112]. Importantly for present purposes, neither of those assumptions would operate to diminish the valuation of Frances' life interest made by the witness.

1044. The consequence of Mr Buttler's evidence, which I accept, is that if Frances were to be held to the expectation which she created then in some way she must receive $932,973 gross (or $699,730 net). That does not take account of her loans to the former partnership; nor of her entitlement to interest upon those loans since 1 July 2000 and to interest on the net value of her share in partnership assets since that date.

1047. Bearing in mind the fact that Frances has wished to quit the partnership since August 1999, realising her interest in the land and other business assets, she could hardly complain in principle if the Court's resolution of this proceeding produced that outcome. What she would certainly say is that, notwithstanding I have found her conduct to be unconscionable, she should not be required to dispose of her interest for an amount[113] of not more than $932,973 in lieu of an opportunity of obtaining from the partnership, assuming that one or more of Marjorie, Ross and Tim exercised their settlement right of acquiring her interest in partnership assets, a net amount of about $1.77M.[114]

1050. Third, consider the position if the plaintiffs were to be confined to recovery of money sums - I will assume both contractual and equitable damages. On such a footing Ross would be entitled to an order for payment out of the assets of the partnership. In that connection the relevant components would be under-remuneration and lost opportunity in the period 1986-2000, $190,500; motor vehicle and personal expenditure, $67,500; unused holidays, 80 weeks; and long service leave, 26 weeks.

1053. The parties agreed that in the event that either or both of Ross and Tim was entitled to damages[115] then he should recover against the partnership as it was constituted in 1999/2000. Frances' counsel further accepted that Ross was entitled to make out a claim for unused annual leave and for long service leave recompense stretching back to 1970. He specifically conceded Ross's claim for unused annual leave in an amount of $56,000; and for long service leave in an amount of $18,200.

1056. In all, then, upon my conclusions and the admissions that were made, Ross would be entitled to a maximum damages sum of about $332,200.

1059. As for Tim, he would have an entitlement to damages for under-remuneration, unused annual leave and recompense for use of his tractor. I have concluded that, judged against the inexact guide of Award rates, under-remuneration was in the order of $80,000. Counsel for Frances admitted Tim's claim for 17 weeks' unused annual leave at $530 per week: that is, in an amount of $9,010. I have concluded that Tim's claim for $16,000 in respect of use of his tractor was made out.

1062. In all, then, upon my conclusions and the admission that was made, Tim would be entitled to a maximum damages sum of about $105,000.

1065. In my opinion, to award Ross and Tim a maximum of some $437,210 in damages against the partnership, to be secured against partnership assets, would be a wholly inadequate remedy for the detriment that they have suffered and will suffer if Frances is permitted without more to resile from the expectation which she created. That amount would simply be the bare arithmetic of their past detriment. It would not reflect depreciation in the quality of life which I am satisfied that they have suffered - in Ross's case for a period of more than 14 years, in Tim's case for a period of about eight and a half years. It would in no way make up for the intense commitment given to their work by the two men for protracted periods in reliance upon the expectation which Frances created. It would provide cold comfort for what would surely be the adverse mental impact resulting from removal of the expectation.

1068. Further, such a remedy would operate unfairly against Marjorie. Her net interest in the partnership assets would be depreciated, excepting in respect of contractual damages, in consequence of reliance by Ross and Tim upon an expectation relevantly created by Frances, from which Frances was being permitted to resile.

1071. It might be argued that Marjorie was a beneficiary of the under-remuneration of the men, of their use of their own vehicles for farm use, of their work in improving the farm. Why then should she not suffer depreciation in the value of her interest in the partnership so as to make good any detriment which they had suffered?

1074. I would not accept that argument; or at least permit it to weigh much in the balance. For it must be remembered that it was Frances who created the critical expectation, giving rise to detrimental reliance; and Frances' conduct in resiling from the expectation which gave rise to this proceeding.

1077. They are not the only reasons why an order for damages in favour of Ross and Tim would be an inadequate remedy. I have previously explained why I consider that they have suffered a detriment if the land must be bought from the partnership at its 2000 valuation. I have concluded that it is inevitable that Home Farm, Mac's and Days would need to be sold if any one or more of Marjorie, Ross and Tim are to retain the balance of the land and other business assets. I have concluded that had purchases of Frances' interest been staged, at worst it would have been necessary to sell one or two of the outlying blocks. I have concluded also that the price payable would reflect a disproportionate increase upon its 1986 value, importantly a consequence of action by the plaintiffs to their detriment. Those conclusions did not address the situation if an award of damages was made in favour of each of the plaintiffs. If such an award was made it would have some impact upon the need to sell property. But it would not eliminate the need to sell at least two parcels of land - very probably a worse situation than would have been faced had the critical expectation not been created in 1986 and perpetuated thereafter. Bear in mind also the fact that such a payment would itself impose a burden on partnership assets - perhaps requiring sale of another of the outlying blocks.

1080. Again, an award of damages would not meet what I have described as the definite but probably modest detriment suffered by Ross and Tim in not seeking to acquire Frances' increasing interest in stock before the partnership was dissolved; and it would not meet the detriment suffered by Ross in his not seeking to exploit the commercial value of his inventions, rather being satisfied that the partnership have the day to day benefit of their use.

1083. In all the circumstances of the particular case, as I said a little earlier, I consider that the minimum equity required to do justice to the plaintiffs is that a constructive trust should be impressed upon Frances' interest in all the land and other partnership assets in favour of Tim. There should be no award of damages in favour of either plaintiff. Frances must do what is necessary to convey her interest in the land to Tim. An order should be made in favour of Frances for payment by Tim of an amount of money, secured against his interest in partnership assets. A reasonable but not overlong time should be fixed for payment of that amount. In addition, of course, the partnership will remain liable to repay France her loans to the partnership; and interest upon those loans until they are repaid. Concerning Frances' entitlement to 7% interest on the net value of her share in partnership assets I must say something more a little later.

1086. Why impress a trust on all the land and other assets rather than impress a trust on some only of the land and order that the balance of the land be conveyed to Frances absolutely? I partly supplied the answer to that question earlier. Frances has wished to quit her interest in the partnership assets since August 1999. The course I propose will achieve that outcome. Moreover, the amount which I shall order to be paid to her will adequately reflect the amount which she could recover if the entire ownership of Home Farm and Mac's were to be acquired by her and then sold at values prevailing on 30 June 2000; and if her interest in the stock, plant and equipment and shares was realised and paid to her at 30 June 2000 values. Moreover, in light of the state of the relationship between Frances, Ross, Marjorie and Tim, the sooner that they are wholly disengaged in a business sense, the better.

1089. What amount, then, should be fixed, exclusive of the loans that are repayable and any interest that may be payable? It should definitely be considerably less than the net $1.77M which Frances would recover if she was permitted simply to resile from the expectation which she created. It should also definitely be a lesser amount than $1.77M less 50% of the impact of a damages award of $437,510 in favour of Ross and Tim.

1092. In light of Mr Buttler's evidence there is a good case for saying that it should be no more than $932,973. It may be said that such a figure reflects several assumptions quite favourable to Frances. But still it seems to me that such an amount would reflect too harsh a judgment upon Frances' conduct. Looking at the matter overall, not ignoring the argument, pressed by counsel for Frances, that by a resolution such as I propose Marjorie would obtain a benefit denied to Frances, I answer the question which I posed a few moments ago by the answer: $1,200,000.

1095. A question arises concerning Frances' entitlement to 7% interest on the net value of her share in partnership assets after 1 July 2000. There is no doubt, as I understand the intended application of the settlement terms in the partnership dispute, that Frances would have been entitled to such interest had I decided that Ross and Tim should have monetary relief leaving her with net assets of diminished value; or if I had decided that certain parcels of land should be conveyed to Frances absolutely. But it may be otherwise because I have decided that a constructive trust should be impressed upon all her interest in the land and other assets, and that she should be paid a money sum.

1098. I consider that Frances should not be deprived of interest because of the particular form of relief which I have decided is appropriate. She should have interest at 7% on the amount of $1,200,000 from 1 July 2000. If, as I suppose, there is doubt whether that would be so under the terms of settlement, then the formal orders I make should reflect an entitlement to such interest.

1102. I ask counsel to prepare minutes of orders in accordance with my conclusions.

[2] And, as opened, but not the subject of evidence, surgery for prostate cancer in November 1999.

[3] Then constituted by Mrs Cashin, Frances and Marjorie.

[4] Sometimes I shall refer to them as "statements".

[8] Nisa Bula is a 340 acre property gifted to Marjorie by her father at the time of her marriage to Ross in January 1970. Ross and Marjorie live on that property. They have done so since 1970. So did Tim until recent years. The property has been leased to the successive farming partnerships.

[16] The conduct was this: Mr Cashin, by his 1978 will, left his half share in plant and equipment to Marjorie. By her 1978 will Mrs Cashin did likewise. Marjorie knew about those provisions. But by her 1992 will Mrs Cashin left her half share in the plant and equipment to the sisters in equal shares. When Marjorie found out about this - she said, and I believe, after her mother's death - she required Frances to purchase 50% of the interest in plant and equipment left by their late father, the consequence being that the sisters would then own the land, the stock and the plant and equipment in equal shares. Frances agreed. The plant and equipment was purchased at its 1985 valuation. After an offset, the amount paid by Frances was $16,000.

[17] [1999] HCA 10; (1999) 196 CLR 101.

[18] [1999] VSCA 109; [1999] 3 VR 712.

[20] [2001] VSC 141.

[25] Flinn at paragraph 117; see also Gillett, at 226H, citing Balcombe LJ in Wayling v Jones (1995) 69 P and CR 170 at 173, the latter authority being also cited by Brooking JA in Flinn.

[26] At 232 D-F. His Lordship pointed out that the second series of propositions derived from Spencer Bower & Turner on Estoppel by Representation, 3rd Ed, and traced back to the judgment of Dixon J in Grundt v Great Boulder Gold Mines Ltd. Those propositions, he accepted, applied to proprietary estoppel.

[27] [1937] HCA 58; (1938) 59 CLR 641 at 674-675.

[28] At paragraph 27; noted as pertinent by Brooking JA in Flinn at paragraph 121.

[29] The language of Scarman LJ in Crabb v Arun District Council [1976] Ch 179 at 198, cited with approval in Gillett at 235 E-F; and, more importantly, compatible with the approach in principle in The Commonwealth v Verwayen (1990) 170 CLR 394, relevant observations being collected in Giumelli at paragraphs 42-47. See also Flinn at paragraph 119.

[32] T985; a reference to what was said by Robert Walker LJ in Gillett at 225D.

[35] Rogers may have been such a case. But there the person in the position of Ross was not a plaintiff - the circumstances being otherwise different.

[37] I have noted already that the case as developed at trial did not exactly fit the allegations made by the statement of claim. So, for instance, the plaintiffs relied as representations upon discussions pleaded by paragraphs 15 and 18 to have culminated in agreement. The allegation that agreement had been concluded was not pursued. Further, as the trial was conducted the allegation made by paragraph 18, pertaining to discussions held in 1992, was treated as an allegation concerning discussions held both in 1988 and in 1992.

[42] See Exhibit 3, letter Frances to Mr Hanrahan, 3 January 1986; and letter Frances to Mr Hanrahan, 4 February 1986.

[43] See Exhibit 3, letter Frances to Mr Hanrahan, 4 February 1986.

[44] [1959] HCA 8; (1959) 101 CLR 298.

[46] Just possibly, it was evidence combining things said at meetings held on that day and on 11 April 1986.

[47] See, for example, T.892, 897, 898, 899, 902.

[52] See paragraphs 10-12, which in part were founded on a mistaken recollection as to when the partnership between Mrs Cashin, Frances and Marjorie commenced.

[83] Compare the question at T442, lines 30-31 and the evidence of Frances at T700, line 18.

[84] Just over $ 270,000 in the period 1 July 1986 - 30 June 2000.

[85] The cattle were run on Nisa Bula, leased by the partnership from Marjorie.

[90] Mr Cashin gifted Frances $100,000 when he gifted Nisa Bula to Marjorie in 1970. Ready cash not being available, the gift was treated as a loan made by Frances to the business, Frances being paid interest thereafter.

[100] Bear in mind the fact that the evidence showed that the various parcels of land have their discrete suitabilities. A farmer would see in the retention of all the properties a very distinct advantage, quite apart from their retention increasing the number of stock that could be run. Bear in mind also the circumstance that retention of all the properties would mean that general improvement work - for example, pastures, fencing, shelter belts - could be undertaken on each of them without the feeling that it was work from which others would benefit.

[102] See at T.444-446, bearing in mind his earlier evidence that the tractor was used about every second day during the pertinent months of each year.

[103] And probably Marjorie; hereafter I will assume that, with an intention that one day Tim would inherit everything, they would have been joint purchasers. But I will not always refer to both of them.

[104] T.467. That is, Home Farm, Mac's and Days.

[105] A weighted average of eight capital cities, which took as its base year 1989/1990 and then extrapolated back to 1970 and forward to 2001.

[108] I have reached this conclusion notwithstanding that major works were done on The Bush and Dunlops after 1985; and that other properties have increased in value by slightly more. The impact of the work done by Ross and Tim was surely not confined to The Bush and Dunlops.

[109] Taking into account any impact of this proceeding.

[110] See paragraph 73 and footnote 28 of these Reasons.

[113] Excluding loan repayment and interest since 1 July 2000.

[114] This amount also being exclusive of loan repayment and interest since 1 July 2000.

[115] In which description I include, conveniently amounts due under contract.