Perry v Perry

1 Ex parte Green (1820) 1 Jac & W 253; 37 ER 372 Flourentzou v Spink [2019] NSWCA 315 Fountain v Alexander (1982) 150 CLR 615; [1982] HCA 16 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 Hewer v Bryant [1970] 1 QB 357 Hons v Hons [2010] NSWSC 247 Hoste v Pratt [1798] 3 Ves Jun 730; 30 ER 1243 In re Cahill's Estate (1886) 12 VLR 228 In re Howarth (1873) LR 8 Ch App 415 In re Richards (1931) 31 SR (NSW) 565 In the Estate of Dwyer (decd) (1886) 12 VLR 303 Kerferd v Perpetual Executors and Trustees Association of Australasia Ltd (1893) 19 VLR 700 Maberly v Turton (1808) 14 Ves Jun 499; 33 ER 612 McEvoy v McEvoy (No 2) [2013] NSWSC 1162 Meshumar v Otmy (2018) 97 NSWLR 615; [2018] NSWSC 125 Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78 Neale v Bank of Western Australia [2014] NSWSC 315 Pavlis v Pavlis [2021] NSWSC 1117 Re Application of a Local Health District; Patient Fay [2016] NSWSC 624 Re Moylan (1881) 5 AJR 67 Re Neeson (1869) 6 WW. & aB. Eq. 319 Re Pleash (as joint and several liquidators of Suncoast Restoration Pty Ltd (in liq) [2013] FCA 355; (2013) 93 ACSR 606 Re Walder; Townsend v Walder (1903) 3 SR (NSW) 375; 20 WN (NSW) 144 Reeves v Brymer (1801) 6 Ves Jun 516; 31 ER 1172 Robison v Killey (1862) 30 Beav 520; 54 ER 991 Sherwood v Smith (1801) 6 Ves Jun 454; 31 ER 1141 Singh v Singh [2017] NSWCA 234 Sisson v Shaw (1804) 9 Ves Jun 285; 32 ER 612 Spink v Flourentzou [2019] NSWSC 256 Warner v Hung, in the matter of Bellpac Pty Ltd (recs and mgrs apptd) (in liq) (No 2) [2011] FCA 1123; (2011) 297 ALR 56 Watson v Foxman (1995) 49 NSWLR 315 Texts Cited: G E Dal Pont and K Mackie, Law of Succession (2nd ed, 2017, LexisNexis Butterworths) J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (8th ed, LexisNexis Butterworths) Category: Principal judgment Parties: Tanya Lynette Perry (plaintiff) Anne Lynette Perry (first defendant) Mark William Perry (second defendant) Michelle Perry (third defendant) Louise Anne Perry (fourth defendant) Representation: Counsel: J Needham SC/ M M Pringle (plaintiff) J Gooley/ R M Higgins (first to fourth defendants)

Solicitors: HWL Ebsworth (plaintiff) Reynolds & Reynolds Legal Services (first to fourth defendants) File Number(s): 2016/336648

Judgment

1. Russell William Perry died in January 1975, at the age of 24, as a result of accidentally drowning in a river.
2. The family that Russell left behind at the time of his death are parties to these proceedings. Without meaning any disrespect, as all of the parties have the same family name, I will refer to the parties by their first names.
3. The plaintiff, Tanya, was born in May 1970. The first defendant, Anne, is Russell's widow, and the mother of Tanya, the second defendant, Mark, and the fourth defendant, Louise. Anne did not remarry. Mark was born in July 1972, and Louise was born in June 1974. Each of the children was therefore very young at the time of Russell's death. The third defendant, Michelle, is the wife of Mark.
4. Russell died intestate. On 23 September 1975, this Court made a grant of letters of administration to Anne.
5. By application of ss 49 and 50 of the Probate and Administration Act 1898 (NSW), as amended by the Administration of Estates Act 1954 (NSW), the members of Russell's family were entitled to share in his estate in the following proportions: Anne as to one third and the children in equal shares as to the remaining two thirds. The children were therefore each entitled to two ninths of the estate.
6. Anne has not yet completed the administration of Russell's estate. That is so even though the youngest child, Louise, reached her majority on 14 June 1992. As will be seen below, the assets in Russell's estate have been used for various family purposes.
7. Following Russell's death, Anne was faced with the need to fend for herself and to bring up her three children. The primary asset in Russell's estate was a half interest with Russell's brother, Ray, in a farming property at Fernmount, near Bellingen, in the north of New South Wales. The parties called this property the Fernmount land.
8. At the time of Russell's death, there was a dwelling house on the Fernmount land. The dwelling house burnt down, and Anne received half of the proceeds of the fire insurance policy. That money formed part of Russell's estate. Anne used the money, together with a small additional sum that was borrowed, to buy Ray's half share in the Fernmount land.
9. Thereafter, at various times, a new dwelling house and a cottage were constructed on the Fernmount land. A large shed was relocated to the Fernmount land, a piggery was established by Anne on the Fernmount land, and Mark and Michelle agisted their dairy cattle on the Fernmount land, in return for which they carried out improvements and took care of the land. Anne lived in the dwelling house on the land as her home until recently. Mark and Michelle dwelt in the cottage for a number of years. Tanya and Louise even obtained a development approval from the local council for the construction and operation of an eco-tourism lodge on the Fernmount land.

History of the proceedings

1. These proceedings were commenced by statement of claim filed by Tanya on 10 November 2016.
2. The proceedings were set down for hearing before me for a period of seven days commencing on 15 October 2018.
3. On 18 October 2018, the fourth day of the hearing, Tanya sought leave to further amend her statement of claim. I made case management orders that required Tanya to serve a draft pleading on the defendants and vacated the balance of the hearing. Tanya filed her further amended statement of claim (FASOC) on 8 April 2019. The defendants filed their further amended defence (FAD) in response on 1 May 2019. A reply was filed by Tanya on 27 May 2019. Those were the pleadings upon the basis of which these proceedings were finally conducted. The proceedings have been conducted by the parties closely by reference to the pleadings. It will be necessary to analyse the pleadings below.
4. The Court was able to list the balance of the hearing on 1 July 2019, and it was concluded after a further five days.
5. Tanya delivered comprehensive written submissions on 30 August 2019 (PS) and the defendants responded on 5 November 2019 (DS).
6. The parties sought and were given an opportunity to make oral submissions to the Court. That occurred on 17 April 2020.
7. In addition, a number of directions hearings were necessary in order for the Court to make orders to govern the sale of the Fernmount land. That came about because of a decision by Anne to sell the Fernmount land in any event. In circumstances that I will explain more fully below, the manner in which the Fernmount land was put to the market, and the price gained for it, have a material bearing on the resolution of one of the significant issues in this case.
8. There was a dispute between the parties as to whether the fact that the development approval granted by the local council was permanently attached to the Fernmount land added to its market value, and if so by how much. The orders that the Court made to govern the manner of sale of the Fernmount land were in part designed to facilitate the possibility that the existence of the development approval would improve the sale price, and also the prospect that the sale process would itself generate evidence that would assist in resolving the uncertainty about whether the existence of the development approval added value to the Fernmount land.

Relief sought by Tanya

1. It will be convenient for the Court to start by describing the relief sought by Tanya in the FASOC. Given the considerable period that has elapsed since the commencement of the hearing and the filing of the amended pleadings, it will be necessary for the Court to analyse the pleadings in somewhat mechanical detail, and to set out that analysis. This is in order to demonstrate that the Court has properly addressed the issues, notwithstanding the time that has elapsed before the judgment has been able to be delivered.

Appointment of a new administrator

1. By prayer 1A, Tanya seeks an order from the Court revoking the grant of letters of administration made by the Court on 23 September 1975 to Anne. By prayer 1B, Tanya seeks a grant of letters of administration to herself, and in the alternative by prayer 1C, to a person identified as Jeremy Glass.
2. The defendants oppose these orders being made, largely on the ground that they contest the claim that Anne has been guilty of maladministration, and in any event they say that, as the Fernmount land has been sold, there is no warrant for the Court to make orders that will subject the estate to the need to incur unnecessary costs. The defendants contend that, whatever the outcome of these proceedings, it will be convenient for Anne to complete the administration of the estate under the supervision of the Court.
3. As the premise upon which this aspect of the relief has been sought depends upon a finding that Anne has failed in her duties as administrator of Russell's estate, it will be convenient to defer further consideration of whether this relief should be granted until towards the end of these reasons.

Declaration as to Tanya's entitlement to estate

1. By prayer 1D, Tanya seeks a declaration that she is entitled to two ninths of Russell's estate.
2. The defendants do not now contest that nominal entitlement on Tanya's part. The difficulty lies in determining the property contained in Russell's estate of which Tanya is entitled to two ninths.

Declaration that the Fernmount land is part of the estate

1. Tanya seeks by prayer 1B a declaration that Anne holds the whole of the Fernmount land on trust for Russell's estate.
2. The defendants contest the making of that declaration. They accept that one half of the title to the Fernmount land was owned by Russell at the time of his death and accordingly is part of his estate. The defendants accept that the $15,000 that Anne received as fire insurance for the dwelling house that burnt down is part of Russell's estate, and accordingly the portion of Ray's share of the Fernmount land that was purchased by Anne using the insurance money is also part of Russell's estate. However, the price paid by Anne for Russell's share was $17,000, and she personally borrowed and repaid $2,000 to make up that price. The defendants say that the portion of Ray's share purchased with the $2,000 is not part of Russell's estate.
3. The defendants also say that, because the dwelling house on the Fernmount land burnt down, the land was effectively unencumbered in-so-far as it was an asset of Russell's estate. They say that Anne, with the help of her brothers, and later with the assistance of Mark and Michelle, erected the dwelling house, the cottage, the shed, and the piggery on the Fernmount land. They also made other improvements using their own funds and labour. The defendants say that Russell's estate is limited to a portion of the unimproved Fernmount land.

Order against Anne for an account

1. By prayer 2, Tanya seeks an order against Anne that she account to Tanya on a wilful default basis in respect of her use of the Fernmount land, and also the proceeds of sale of property that the parties called the Pony Paddocks. Prayer 4 is a claim for an order against Anne that she pay to Tanya the money found to be due to her as a result of the taking of the account. The effect of prayer 4C is that Tanya seeks an order under Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 54.3 that Anne verify the estate accounts.
2. Before I comment further on this aspect of the relief sought, I should briefly explain the reference to the Pony Paddocks.
3. Between 1981 and 1987, Anne received a total of $83,296.89 in a number of payments from Russell's mother, Ellen. Those payments represented in total one third of the net sale price of certain land that the family called the Pony Paddocks. Tanya claims that Ellen held the Pony Paddocks on trust for Russell and his two siblings in equal shares, as a result of the Pony Paddocks having been purchased by Ellen with money supplied by Russell's paternal aunts, for the purpose of being held on trust for Russell and his siblings. Tanya contends that, when the one third of the proceeds of sale was paid by Ellen to Anne, it formed part of Russell's estate, and ought to have been distributed to the persons entitled on intestacy. That did not happen, and Anne applied the money for other purposes. I will explain this aspect of the dispute in more detail below.
4. For present purposes, it should be noted that, by prayer 2, Tanya seeks an order that Anne account for the proceeds of sale of the Pony Paddocks, together with her use of the Fernmount land generally, on the basis of wilful default. As mentioned, Tanya seeks an order that Anne verify the estate accounts.
5. For the moment, I record that this order for the verification of estate accounts, if made, would impose upon Anne the Herculean, but more probably impossible, task of reconstructing what was done with the Fernmount land and the proceeds of sale of the Pony Paddocks over a period of some 45 years.
6. By prayer 4B, Tanya seeks an order against Anne that she indemnify Tanya in respect of the loss of Tanya's share in the proceeds of sale of the Pony Paddocks.

Order for the sale of the Fernmount land

1. A second aspect of prayer 4C is that Tanya seeks an order for the appointment of a broker to sell the Fernmount land.
2. That claim, at least, has been obviated by the fact that Anne has independently decided, during the course of the proceedings, to sell the Fernmount land, and the Court has been required to resolve disputes between the parties and to make orders as to how that sale process would be conducted.

Orders concerning mortgages over the Fernmount land

1. Tanya then seeks, by prayers 4A, 5 and 6, orders that Anne account to Tanya on a wilful default basis, and that Anne, Mark and Michelle indemnify Tanya, in respect of the consequences of a number of mortgages that Anne granted over the Fernmount land. Those mortgages were granted to secure guarantees that she gave to lenders to Mark and Michelle to enable them to acquire and conduct dairying enterprises in the vicinity of Bellingen. Tanya claims that the mortgages were not granted with her informed consent and caused her prejudice.
2. Although this issue must be considered in more detail below, Tanya's claim that the conduct of the defendants caused her prejudice may have been obviated by the fact that, during the course of the proceedings, Mark and Michelle have reordered their financial affairs so that all mortgages on the Fernmount land granted for their benefit have been discharged. While the existence of the mortgages may have prejudiced Tanya, had the lenders exercised their security rights, that did not happen, and now cannot happen.
3. Tanya has, however, by prayer 6, claimed an order against Mark and Michelle that they account to Tanya for the profits that they have made by means of the use of Tanya's interest in the Fernmount land.
4. If that claim has substance, it would survive the removal of the mortgages from the Fernmount land. That will depend upon whether Tanya can identify a principle upon which Mark and Michelle would have to account to Tanya for their profits in the circumstances.
5. It may, in any event, be that the resolution of the issue concerning Anne granting mortgages over the Fernmount land is relevant to questions of costs in the proceedings.

Relief concerning the value of the eco-tourism development approval

1. Tanya seeks, by prayer 6A, a declaration that Anne holds "the value" of a joint venture agreement on trust for Tanya and Louise. This is a reference to the fact that the family agreed that Tanya and Louise could take the steps necessary to enable them to establish an eco-tourism lodge on the Fernmount land in a joint venture with the family. For reasons that will be explained later, the joint venture agreement led to the local council granting a development approval, which is now permanently attached to the Fernmount land. However, for financial reasons, the family abandoned the proposal to actually construct and operate the eco-tourism lodge. Tanya contends that, nonetheless, the permanent attachment of the development approval adds substantial value to the Fernmount land.
2. Tanya contends, by her formulation of prayer 6A, that the amount held on trust by Anne in respect of the value of the joint venture agreement should be the greater of $350,000, and the difference between the market value of the Fernmount land without the development approval and the sale price. The $350,000 is the amount that Tanya contended was the cost incurred by Tanya, by the expenditure of money or time, in getting to the point where the development approval was issued, and the works substantially commenced.

Account to determine value of Tanya's contributions

1. The final substantive order sought by Tanya is the order in prayer 7 that an accounting be conducted to ascertain the value of Tanya's contribution to Russell's estate by, first, expenditure in respect of the joint venture agreement on the basis of a quantum meruit, and secondly, by contributions towards repayment of earlier mortgages on the Fernmount land entered into by Anne in order to carry out operations on that land.

Costs

1. Tanya seeks her costs of the proceedings on the indemnity basis, or alternatively, the ordinary basis.

Claims pleaded by Tanya

1. Tanya has made a number of separate claims in support of the relief that has been set out above. I will generally deal with those claims in the order in which they have been pleaded in the FASOC.
2. However, it will be convenient to refer to Tanya's claim that Anne has failed to properly administer Russell's estate first, as that is the basic underlying claim that Tanya makes.
3. It will be appropriate to foreshadow that the most significant factor in this case is the existence and effect of an informal and imprecise arrangement that operated within the Perry family for many years, which the parties called the "family deal". The family deal took one form during the minority of Anne and Russell's children, but continued in another form with the involvement and consent of the children up until about October 2015.
4. During the minority of each of Anne and Russell's children, they did not have capacity to consent in a binding way to Anne conducting the administration of Russell's estate other than conventionally in accordance with her duties as administrator. However, when each child attained their majority, they were free to take whatever proceedings were necessary in respect of Anne's past and future administration of the estate. None of the children did so. Instead, up to a time shortly before the commencement of the proceedings, when Tanya repudiated the family deal, all members of the family had agreed or acquiesced in the manner in which Anne applied the assets in the estate. Essentially, Anne administered Russell's estate in accordance with the family deal and not her strict obligations as an administrator under a formal grant of letters of administration.
5. Notwithstanding the undoubted significance of the family deal, it was not formally pleaded by any party. However, the family deal emerged, even if somewhat obliquely, out of a set of representations that Tanya pleaded were made by Anne over the decades to Tanya, as a ground for absolving Tanya of her delay in instituting these proceedings. I have called those representations, which I will set out below, the Fernmount land representations. The defendants admitted some of the Fernmount land representations and accepted that others were made in slightly different terms to those alleged by Tanya. In this way, the defendants partially embraced Tanya's reliance on the Fernmount land representations, and said that the representations in reality were no more than a component of the family deal, by which all of the Perry family had agreed to and acquiesced in the manner in which Anne had administered Russell's estate.

Anne's failure to administer Russell's estate

1. Tanya's claim that Anne has wrongly failed to administer Russell's estate was succinctly pleaded. Tanya alleged first that Louise attained her majority on 14 June 1992 [1] and that, after that date, Anne has failed to complete the administration [2] .
2. The defendants admitted those allegations [3] . However, they added that Tanya was at all relevant times aware that she had an interest in the Fernmount land as a beneficiary of Russell's estate; that until about October 2015, Tanya did not seek any distribution of the estate; and that Tanya has thereby acquiesced in Anne's failure to distribute the estate.

Tanya's claim for an interest in and for the use of the Fernmount land

1. The defendants admitted [4] Tanya's allegations that, on 27 January 1975, Anne transmitted Russell's half share in the Fernmount land to herself as administrator, and thereupon held that share on trust for herself and the children during their minority [5] . They also admitted that, in 1976 or 1977, the dwelling house on the Fernmount land burnt down, and Anne received $15,000 as half of the fire insurance proceeds.
2. Tanya alleged that Anne held the $15,000 on trust for the persons entitled under Russell's intestacy [6] . The defendants responded to this allegation [7] by admitting it, but adding that, despite having full knowledge, Tanya did not take steps until the commencement of these proceedings to assert an interest in the insurance policy proceeds, and has thereby acquiesced in Anne's use of those proceeds; that Tanya's cause of action is statute barred; and that Tanya has waived any right to any beneficial interest in the insurance policy proceeds.
3. The defendants admitted [8] Tanya's allegation that Anne applied the sum of $15,000, and borrowed $2,000, to fund the purchase of Ray's half share in the Fernmount land [9] .
4. Tanya then alleged [10] that, from about 1977, Anne became the sole registered proprietor of the Fernmount land, which she held for herself and on trust for the children in accordance with their entitlements to Russell's estate. The defendants responded to this allegation [11] by admitting that Anne became the sole registered proprietor of the Fernmount land. However, they added allegations that Anne only held a share of the Fernmount land on trust for the children. Anne contributed significant additional funds to retain and maintain the property over a long period of time. Tanya made no financial contribution to maintaining, improving and preserving the property, which was done by Anne at her own expense, or with the assistance of Mark and Michelle. Consequently, the defendants alleged, Anne only held part of the unimproved capital value of the Fernmount land on trust for Tanya, as it had no house on it at the time that Anne purchased Ray's half share.
5. In further derogation from Tanya's claim that Anne held the whole of the Fernmount land on trust as part of Russell's estate, the defendants alleged [12] that Anne had occupied the Fernmount land continuously, and paid $150,000 towards the improvement of the Fernmount land given to her by her late brother in approximately 1990. They alleged that Anne erected the new residence in about 1977 to 1978 at her own expense, relying on her labour and that of her brothers. The defendants further alleged that Anne was the owner of an insurance policy on the life of Russell, and that the proceeds of the life insurance policy generated, on 4 October 1978, a fund of $30,000 that was used by Anne for the construction of improvements on the Fernmount land. Anne relocated to the Fernmount land a substantial shed that had been acquired with the life insurance monies. Anne continued to service loans and built other improvements on the Fernmount land, including a piggery built with a Rural Assistance Loan that was serviced by Anne. Anne took out a business loan to carry out final renovations to the residence on the Fernmount land in about 1998 or 1999. Anne paid all outgoings for the Fernmount land until Mark left school at age 14, after which Mark, and later Mark and Michelle, contributed labour and funds towards the maintenance, outgoings and repairs of the Fernmount land over time. Mark and Michelle currently pay all significant outgoings for the Fernmount land, and do maintenance in lieu of paying any agistment fees for their dairy herd. The defendants alleged that Tanya has never paid any outgoings for the Fernmount land.

Tanya's claim for an interest in the sale proceeds of the Pony Paddocks

1. Tanya seeks an order that Anne account to her in respect of two ninths of the proceeds of sale of the Pony Paddocks.
2. Tanya pleaded [23] that Russell's mother, Ellen, held the Pony Paddocks on trust for Russell and his two siblings. The defendants denied this allegation [24] .
3. Tanya alleged [25] that the trust arose because Ellen had purchased the Pony Paddocks using funds solely provided by Russell's aunts, for the purpose of the Pony Paddocks being acquired on trust for Ellen's three children. The defendants denied [26] this allegation, but added that, if it was true, Anne was at all relevant times unaware of the facts; that Anne made enquiries and was told by Russell's father that Russell did not hold any interest in land other than the Fernmount land; and that Anne dealt with Ellen, by oral agreement, in which no condition was placed upon the distribution of the funds from the sale of the Pony Paddocks by Ellen, or that those funds be paid to Russell's estate.
4. Tanya alleged [27] that, before their sale, the Pony Paddocks had been held on resulting trust for Russell and his siblings. The defendants again denied [28] this allegation, but added that, if it was true, Anne was unaware that Ellen held the Pony Paddocks on trust; and that Anne acquired the funds in consideration of her work in assisting Ellen to subdivide and sell the Pony Paddocks, so that she took the funds for value without notice. Tanya replied [29] to this defence by pleading that the value of the funds received by Anne exceeded the value of the work done by her on a quantum meruit basis, and that Anne is only entitled to retain the value of the work done on that basis, and holds the balance of the proceeds of sale on trust for Russell's estate.
5. Tanya then alleged [30] that, between 1981 and 1987, Anne received seven payments totalling $83,296.89 from the sale of Russell's interest in the Pony Paddocks. The defendants denied [31] this allegation, and added that Tanya had acquiesced in Anne's use of the proceeds by not taking any steps until the commencement of these proceedings; that Tanya's action is statute barred or alternatively barred by laches; and that, furthermore, to the extent that the proceeds were not invested in the Fernmount land, they were spent on the maintenance and welfare of Tanya, Anne, Mark and Louise. In her reply, Tanya alleged [32] that she had no knowledge sufficient to ground a defence of acquiescence, waiver, or that her claim was statute barred until 10 March 2016. Tanya pleaded that she would rely upon her response to the limitation defences set out more fully in her reply.

Contributions of beneficiaries to Russell's estate

1. The defendants admitted [47] allegations [48] by Tanya that Anne and Mark were employed by a business operated by Russell's family, but they were dismissed in 1990. The significance of Tanya's allegation is obscure.
2. Tanya then alleged [49] that, between 1992 and 1994, she contributed between $200 and $300 per month to the mortgage over the Fernmount land. The defendants denied this allegation [50] and said that Mark contributed a minimum of $520 per month, and also sold cattle to provide funds for the benefit of the Fernmount land [51] .
3. Tanya alleged [52] that, in 1996 and 1997, she contributed funds to renovate the cottage on the Fernmount land occupied by Mark and Michelle. The defendants responded [53] by accepting that Tanya paid a nominal amount for paint but alleged that was in return for advances made to her by Anne. They alleged that Mark and Michelle contributed financially and provided extensive labour. Finally, the defendants alleged that Anne contributed to the renovation cost of her residence and to the cottage on the Fernmount land.
4. Finally, Tanya alleged [54] that Mark and Michelle did not pay rent for residing in the cottage on the Fernmount land. The defendants admitted [55] that Mark and Michelle did not pay rent, but said that, in lieu of rent, they carried out and paid for weed eradication, pasture management, cleaning, repairs and maintenance to the entire property, which had fallen into a state of significant disrepair. They said that Mark and Michelle both had employment off the farm, and that they used most of their disposable wages to pay for expenses associated with maintaining the Fernmount land. Mark and Michelle have never been remunerated or reimbursed for their labour on the Fernmount land, or for their contributions to maintenance costs or payment of outgoings. The defendants alleged that the value of the payments and contributions made by Mark and Michelle exceeded the commercial value of any rent that could have been charged for their occupation of the Fernmount land.

Dealings with the Fernmount land without Tanya's consent

1. Tanya pleaded a number of claims that Anne, with the participation of Mark and Michelle, breached her duty to Tanya as administrator of Russell's estate by granting mortgages over the Fernmount land without Tanya's consent.
2. First, Tanya alleged [56] that, from 2002 onwards, Mark used the Fernmount land as collateral for loans to develop his dairying business on another property known as "Caban's". The defendants admitted the allegation [57] , but pleaded that the arrangement was subject to extensive discussions, that Tanya was fully informed of the proposal, and that she gave it her consent and encouragement.
3. Tanya then pleaded [58] that, on 26 March 2004, in breach of her duties to Tanya and Russell's estate, and without the knowledge and consent of Tanya, Anne permitted Mark and Michelle to mortgage the Fernmount land to the detriment of Tanya. The defendants denied the allegation [59] and alleged that in about January to March 2003 Tanya was made fully aware of the proposal, which was the subject of extensive discussions with Tanya. They alleged that Tanya expressly consented to the proposal. Further, part of the loan proposed involved the borrowing of the sum of $40,000 to refinance a loan taken out by Anne, used for renovations to the Fernmount land. Further, Mark and Michelle had used their own labour and that of their staff and their machinery on the Fernmount land to carry out farm maintenance, repairs, grade roads, improve pasture, and pay outgoings in order to assist Anne in servicing mortgages secured by the Fernmount land. They alleged that at no time did Tanya demand consideration or set terms for her giving consent to the Fernmount land being used for that purpose.
4. Further, the defendants pleaded [60] that Tanya had been fully informed of the proposal during meetings and that she had consented, or acquiesced, or was estopped from claiming contribution or equitable damages, or had waived such a right. Furthermore, any claim she had is statute barred.
5. Tanya responded by alleging [61] that she had no relevant knowledge of the transactions sufficient to support a defence of acquiescence, estoppel or waiver until 15 October 2015. Tanya also relied upon her general response to the defendants' limitation defences [62] .
6. The general response to the defendants' limitation defences pleaded by Tanya is [63] that the relevant causes of action are not based on liability at law; that the obligation of an administrator to account is a continuing one; and that Tanya first discovered the facts giving rise to the causes of action on one of five specified dates between 15 October 2015 and 22 February 2019. Furthermore, Tanya relied upon the Fernmount land representations.

Tanya's joint venture claim

1. Tanya pleaded a claim arising out of an agreement between Tanya and Louise, with the consent and cooperation of the other defendants, to jointly develop part of the Fernmount land to erect ecologically sustainable accommodation and facilities (the joint venture agreement).
2. In relation to the joint venture agreement, Tanya pleaded [92] a number of matters, all of which were denied [93] by the defendants. Tanya alleged that the joint venture agreement was made in about March 2008 between Tanya and Louise. It was made by oral agreements between Tanya and the defendants between about 21 to 24 March 2008 (the Easter 2008 meeting), and Tanya and Louise shortly before 21 March 2008 and shortly after 24 March 2008. The joint venture agreement was subsequently recorded in several written documents listed in the particulars to FASOC par 37AA.
3. The joint venture agreement contained the following express terms: (a) the plaintiff and the fourth defendant would benefit from any increase in the value of the Fernmount land resulting from the approval of the Development Application; (b) the joint venture agreement was to equalise the use of the property the second defendant had enjoyed and the benefit the second defendant had received in building his business and purchasing Taylor's Farm; (c) the second defendant could continue to operate his business on the front third of the property; and (d) a trust structure would be established to protect the interests of all parties after the DA had been approved.
4. Tanya alleged that Anne and Mark consented to the joint venture agreement and to the express terms that were pleaded.
5. The steps allegedly taken by Tanya in pursuit of the joint venture were then set out [94] .
6. The defendants pleaded [95] that they do not know and cannot admit Tanya's allegation [96] that, on 29 April 2008, Tanya and an identified town planner attended the Fernmount land to discuss development options with Anne.
7. The defendants admitted [97] Tanya's allegation [98] that, on 8 September 2008, Tanya and Louise registered the business name "Perry Eco Developments" as the proprietors of the business.
8. The defendants admitted [99] Tanya's allegation [100] that Tanya prepared a business plan for Perry Eco Developments for the construction of ecologically responsible holiday units and a conference centre to be erected on the Fernmount land.

Some preliminary observations concerning issues of fact

1. An obvious feature of the present case is that the events that are relevant have occurred over a period spanning some 45 years.
2. Few of the issues arise out of individual events that occurred during this period. The administration of Russell's estate during the collective minority of the children spanned 23 September 1975 to 14 June 1992, when Louise attained her majority. That is a period of about 17 years. Thereafter, during all of the children's majority, Anne has administered Russell's estate for a further 28 years or so. Many events relevant to the use and improvement of the Fernmount land occurred on numerous occasions throughout this period. The Fernmount land representations are said to have been repeated on numerous occasions over the years. The family deal developed and evolved over the same period.
3. In relation to the Pony Paddocks claim, Tanya relies, as will be seen, on her recollection of comments made by her grandfather when Tanya was about five years old. As noted above, Anne received the Pony Paddocks proceeds in seven payments between 1981 and 1987.
4. Tanya alleged that she made contributions to mortgage payments between 1990 and 1994, and that she contributed funds to renovate the cottage on the Fernmount land in 1996 and 1997. Anne claims that she made very substantial improvements to the Fernmount land on many occasions during the minority of her children. Mark and Michelle claim that they made improvements to the Fernmount land regularly and continuously from even before the time that Mark left school at the age of 14 years.
5. Tanya's claim that Anne breached her duty as administrator by encumbering the Fernmount land with mortgages relied upon conduct that commenced in 2002 and continued from that time, with additional relevant events in 2004 and from 2015 onwards. The Caban's farm representations were alleged to have been made from late 2002 until around Easter 2003. The Taylor's Farm representations were alleged to have been made from late 2005 to early 2006.
6. Even the joint venture agreement concerning the eco-tourism lodge development was alleged to have been made in about March 2008, and significant events relevant to the variation of the proposal occurred at different dates after that time.
7. This case raises acutely the problem that occurs with many family disputes that have percolated through the decades, where there are serious practical limitations on the quality of the evidence that the parties are able to give, and consequently the nature and precision of the findings of fact that can be safely made by the Court.

Beneficial entitlement to Russell's estate

1. The rights of the beneficiaries at the date of Russell's death were governed by the Wills, Probate and Administration At 1898 (NSW) (Wills Act, now formally called the Probate and Administration Act 1898 (NSW)), as amended by the Administration of Estates Act 1954 (NSW). Section 2 of the latter Act inserted a new Division 2A of Part II into the former Act. As amended, s 44 of the former Act had the effect that, upon the grant of letters of administration to Anne on 23 September 1975, Russell's half interest in the Fernmount land became vested in Anne, as from the date of Russell's death. Section 50(1)(a)(i) had the effect that Anne became entitled to one third of Russell's estate, as Russell's issue included two or more children. Section 49(1)(a)(i)(a) had the effect that Russell's children became beneficially entitled to the remaining two thirds of Russell's estate equally. Section 49(1)(a)(i) had the effect that Anne held that two thirds on trust for the children.
2. When Anne received the $15,000 half share in the proceeds of the fire insurance policy, she held those funds on the same trusts.
3. Tanya appears to have accepted [127] that, when Anne acquired Ray's half interest in the Fernmount land for $17,000, $2,000 of that money came from Anne's own resources. Consequently, Anne only held 15/17th of the half interest in the Fernmount land that she acquired from Ray as trustee of Russell's estate. Mathematically, Anne held a 0.209 share of the estate on trust for Tanya, say 21%. I note that the parties appear to have accepted that the amount of cash in Russell's estate at his death was so small as to be trivial and to be ignored.

The Pony Paddocks

1. The question of whether Russell's estate included the money received by Anne from the sale of the Pony Paddocks or whether Anne received that money in her personal capacity involves complexities that warrant separate consideration.
2. It was common ground that Anne received a total amount of $83,296.89 from the sale of the Pony Paddocks in tranches, as follows: $16,500 on 18 March 1981, $13,000 on 13 November 1981, $9,497.89 on 22 December 1981, $11,500 on 4 May 1982, $10,200 on 18 June 1982, $11,178 on 3 July 1984, and $11,420 on 1 June 1987 [128] . These payments were all received before Tanya reached her majority in May 1988.
3. At the hearing, evidence was given about the circumstances in which the Pony Paddocks were acquired and the property was subdivided and sold, and whether payments of a third of the net sale price to Anne may have been Anne's own money or received by her as to two thirds on trust for her children. As I have explained above, Tanya was given leave to reopen her case, which led to affidavits being filed by Ray's wife, Vicki, and by Anne.
4. Tanya gave the following evidence [129] concerning her knowledge of the dealings with the Pony Paddocks: 7. On Friday, 30 October 2015, on the plane to Sydney, I read the transcript of Ellen's Estate Proceedings… 8. … Ultimately I instructed my solicitors to send the letter to the defendants' solicitors dated 9 November 2015, a copy of which is annexed and marked 'B'.
5. Tanya's solicitors' letter included the following: Administrator misappropriating estate assets From about 1981 to 1987, monies were received by Anne Perry on behalf of the estate of the late Russell Perry from the subdivision of land referred to by the Perry family as the "Pony Paddock". The land was purchased and held on trust for the late Russell Perry and his siblings, Ray Perry and Ruth Lackie by their mother, Ellen Veronica Perry. This land was not declared in the estate of Russell William Perry. When the land was subdivided it was split equally between the estate of Russell Perry, Ray Perry and Ruth Lackie. Anne received a one-third share on behalf of the estate of Russell William Perry. This money has not been distributed in accordance with the intestacy rules as they were in 1975.
6. The letter also included an extract from the cross-examination of Anne in earlier proceedings relating to Ellen's estate. Anne accepted that she, Ray and Ruth had received money from the sale of the Pony Paddocks. She said: A.… That Pony Paddock was subdivided, and we each shared in payments from it. There were expenses in creating the road, particularly blackbutt and forest and Lines Road. I managed to get it cut, Lines Road, that we didn't have to put the whole of the road through. But I don't have - no, I can't tell you exactly how much money I received from that, because I haven't, I just don't have it.

Administration during Tanya's minority

1. The best evidence of how Anne administered and expended Russell's estate during the minority of her children was given by Anne. I accept this evidence as being generally correct, at a level sufficient to enable the Court to determine Tanya's entitlement to the relief that she seeks, without that acceptance meaning that Anne's evidence is comprehensive and precisely correct in all respects.
2. I accept Anne's evidence that she was told by the solicitor who acted for her in obtaining letters of administration in respect of Russell's estate that she was entitled to use the children's share of Russell's estate for their education, maintenance and advancement. At the time the solicitor would have given that advice, the only asset of any significance in Russell's estate was his half share in the Fernmount land. Anne did not receive the first payment from the sale of the Pony Paddocks until 1981.
3. At the time of Russell's death, his estate had almost no liquid funds. Anne began to receive a widow's pension about six weeks after Russell's death. She waited anxiously for the insurance payout on Russell's life insurance policy, which was in the total amount of $16,376. Tanya claimed in the amended statement of claim that the insurance payout was an asset of Russell's estate, but abandoned that claim in the FASOC. Anne had difficulty paying bills and making ends meet.
4. In September 1975, Anne and her brother Joe purchased land in Bellingen for a price of $6,500 paid for by Joe. Anne and Joe intended that a house would be built on the land suitable for housing Anne and the children, but that plan proved to be financially impracticable.
5. In February 1976, Anne and Joe sold the Bellingen property for $6,800, which was given by Joe to Anne.
6. Approximately 12 months after Russell had died, Anne received the payout under Russell's life insurance policy.
7. Anne then purchased another property in Bellingen for $27,000. The property had a home in which Anne intended that she and her children would live. Anne borrowed about $20,000 from the Bank of New South Wales, which she used, with the life insurance proceeds, to buy the home, to pay associated costs and to buy furniture, and to assist her in starting a small business from which she hoped to earn an income.

Breaches of trust alleged by Tanya

1. The first step in the process of answering the questions that arise concerning Tanya's entitlement to the relief that she claims, insofar as it related to Anne's administration of Russell's estate during the period of Tanya's minority, is to set out Tanya's statement of the breaches of duty that she alleges against Anne [142] : 1) Failure to keep estate assets separate from her personal estate; Particulars [143] : a. [Use of $2000 of her own borrowed funds with the fire insurance proceeds to buy half of the Fernmount land. Use of the Fernmount land to house Anne, the children, Anne's mother, her two brothers and Peter's wife]. 2) Failure to comply with her fiduciary duty to the estate: Particulars: a. The estate assets were held in trust by the administrator on her own behalf (as to one third) and her three minor children (as to 2/9 each); b. The administrator's duty to the estate required her to apply the estate assets in the most efficient and profitable manner available to her during her appointment in order to maximise the estate available for distribution to the ultimate beneficiaries; c. The administrator had a duty to the estate to treat any funds which were paid into the estate (i.e., the funds for the children from the Pony Paddocks) as estate funds and to ensure that they were properly accounted for within the estate; 3) Waste, caused by the administrator's failure to use or apply the estate assets for their best and most profitable use during her tenure as administrator and trustee; Particulars: a. Failure to claim rent from family members occupying the cottage; b. Failure to rent out the cottage when not occupied by family members; c. Failure to charge a commercial adjistment rate for cattle; d. Permitting one beneficiary to offset adjistment against property outgoings, including capital costs, thus depriving the estate of income; and e. Allowing the administrator to reside on the property without paying an occupation fee, or any part of an occupation fee, to the estate; 4) Failure to document any agreement to vary the terms of the estate administration, including any agreement to delay the estate administration; 5) Failure to document any agreement to grant the administrator a greater right, title or interest in the estate than she had at law; 6) Failure to document any agreement to grant a beneficiary a greater right, title or interest in the estate than they had at law; 7) Preferring the interests of one beneficiary over others; 8) Failure to keep proper accounts; 9) Failure to produce accounts upon request; 10) Failure to distribute, pay or transfer the estate to the beneficiaries; 11) Denial of the beneficiaries' right to call for the administration of the estate to be completed; 12) Denial (until the commencement of these proceedings) to recognise the beneficiaries' interest in the estate; 13) Denial (until the commencement of the hearing) to acknowledge Tanya's continuing interest in the estate; 14) Delay in the administration such that the administrator should be removed [on the ground of inexcusable delay in administering the estate].

Anne's obligations and entitlements as administrator and trustee

1. It will be necessary to consider whether Anne's administration of Russell's estate during Tanya's minority involved breaches of her duties as administrator and trustee.
2. That raises the issue of Anne's entitlement to decide what should be done with her children's shares in Russell's estate, and how the Court permits and supervises the use of children's property for their benefit during their minority.
3. As I understand Tanya's submissions [151] , she says that Anne was not entitled to apply Tanya's share of the capital of Russell's estate in the manner that she did, because that course of action was not authorised by s 44 of the Trustee Act 1929 (NSW) (Trustee Act). That section relevantly provides: (1) Where under a trust a person is entitled to the capital of the trust property or any share thereof, the trustee may from time to time pay or apply any capital money subject to the trust, not exceeding altogether in amount one-half of the value of the property or share, for the advancement or benefit of such person or where such person is an infant, for the maintenance, education, advancement or benefit of such person in such manner as the trustee shall in the trustee's absolute discretion think fit. (1A) The power conferred by this section to pay or apply any capital money subject to the trust for the maintenance or education of a person who is an infant shall not be exercised in any case where the trust property or the share thereof to which the infant is entitled exceeds four thousand dollars. (2) The power conferred by this section may be exercised whether the person is entitled absolutely or contingently on the person's attaining any specified age or on the occurrence of any other event, or subject to a gift over on the person's death under any specified age or on the occurrence of any other event, and, notwithstanding that the interest of the person so entitled is liable to be defeated by the exercise of a power of appointment or revocation, or to be diminished by the increase of the class to which the person belongs. (3) The power conferred by this section may be exercised whether the person is so entitled in possession or in remainder or reversion. (4) If the person is or becomes absolutely and indefeasibly entitled to share in the trust property, the money so paid or applied shall be brought into account as part of such share. … (6) This section applies only where the trust property consists of money or securities or property held upon trust for sale calling in and conversion, and the money or securities or the proceeds of the sale calling in and conversion are not by statute or in equity considered as land, or applicable as capital money for the purposes of Part 4 of the Conveyancing and Law of Property Act 1898. …

Application of statutory limitation periods

1. I will return to a consideration of whether the Court should make an order against Anne that she account to Tanya in respect of the administration of Russell's estate during Tanya's minority below. I will first consider the issue of whether Tanya's claim for equitable compensation in respect of Anne's expenditure of Tanya's share in the proceeds of sale of the Pony Paddocks, assuming that money formed part of Russell's estate, is statute barred.
2. Tanya submitted [183] that the provision that governs the limitation period in respect of her claim for her share in the proceeds of sale of the Pony Paddocks is s 47(1)(c) and (e) of the Limitation Act.
3. Section 47 of the Limitation Act relevantly provides: (1) An action on a cause of action: (a) in respect of fraud or a fraudulent breach of trust, against a person who is, while a trustee, a party or privy to the fraud or the breach of trust or against the person's successor, (b) for a remedy of the conversion to a person's own use of trust property received by the person while a trustee, against that person or against the person's successor, (c) to recover trust property, or property into which trust property can be traced, against a trustee or against any other person, or (d) to recover money on account of a wrongful distribution of trust property, against the person to whom the property is distributed or against the person's successor, is not maintainable by a trustee of the trust or by a beneficiary under the trust or by a person claiming through a beneficiary under the trust if brought after the expiration of the only or later to expire of such of the following limitation periods as are applicable: (e) a limitation period of twelve years running from the date on which the plaintiff or a person through whom the plaintiff claims first discovers or may with reasonable diligence discover the facts giving rise to the cause of action and that the cause of action has accrued, and (f) the limitation period for the cause of action fixed by or under any provision of this Act other than this section. (2) Except in the case of fraud or a fraudulent breach of trust, and except so far as concerns income converted by a trustee to his or her own use or income retained and still held by the trustee or his or her successor at the time when the action is brought, this section does not apply to an action on a cause of action to recover arrears of income.

Entitlement of Tanya to an order that Anne give an account to Tanya

1. I now turn to the question of whether the Court should, in the present circumstances, order that Anne give an account to Tanya in respect of her administration of Russell's estate during Tanya's minority.
2. Tanya's submissions do not appear to be specific on the issue of whether Tanya seeks an order that Anne account to her under s 85 of the Wills Act, as in effect at the date of Russell's death, or under the general jurisdiction of equity to order a trustee to account, or both. The fact that the former basis for requiring an administrator and trustee to pass accounts is statutory has consequences for the application of limitation periods and the equitable doctrine of laches.
3. As Tanya has sought an order under UCPR r 54.3(3) that Anne be directed to furnish accounts and to verify her accounts, I will assume that Tanya bases her claim on both sources of her entitlement to apply for an accounting from Anne.
4. The relevant principles have been comprehensively explained by Ward J (as her Honour then was) in Hons v Hons [184] . Her Honour's judgment has been followed by Pembroke J in McEvoy v McEvoy (No 2) [185] , by Jenkins J in Davis v Davis [186] , and by Gleeson JA in Singh v Singh [187] . So, respectfully, will I.
5. Ward J explained the process of the taking of accounts on a common or wilful default basis as follows: [104] It is necessary, when considering a number of the discretionary factors which have been raised, to bear in mind what is comprised by such a process, since that enables an assessment to be made not only of how onerous an order for the filing of statutory accounts would be in this case but also the utility of such an order. [105] The accounting principles carried out under the statutory processes of the probate court are the same as with other accounts (Northey v Juul [2005] NSWSC 933, at [18] and see On Equity, at [16.1320]). Although accounts are ordinarily taken on the basis of actual figures, notional figures may be taken into account where accounts are ordered on the basis of wilful default. (In Garcia v Delfino [2003] NSWSC 1001, at [33], this was described as a situation where "the central concept is one of loss or potential loss through inactivity, inattention or failure to face up to responsibilities".) The authors of On Equity note (at [16.1330]) that wilful default in this context does not connote actual dishonesty but that passive negligence "where the trustee understood the obligations but failed to comply with them" will suffice, citing McLauchlan v Prince [2001] WASC 43, at [16] and [14]; Bartlett v Barclays Trust Co Ltd (Nos 1 and 2) [1980] Ch 515, at 546. The authors note that on the wilful default basis the objective is to ascertain what the accounting party should have received or paid had there been no wilful default (MLW Investments Pty Ltd v Tacsum [2006] NSWSC 1256, at [33]). [106] In McLauchlan v Prince an action for account on the basis of wilful default was distinguished from common account by Sanderson M (at [12]): Generally speaking a common account is a procedure to ascertain the monetary dealings of the parties in respect of the subject property and to determine with precision the balance due between them. After the balance is ascertained orders are made as to the rights of the parties to that balance. Thus a common account generally involves a two-step process. But an account on the basis of wilful default involves ascertaining the status of the corpus, determining the extent to which it has been depleted, ascertaining what would have been earned had the estate been properly administered and ordering payment to the plaintiff of that amount. This whole process is wrapped up in the one procedure. [107] An order for taking accounts on the basis of wilful default is thus more onerous on the accounting party than an accounting in common form. [108] In Glazier v Australian Men's Health (No 2) [2001] NSWSC 6, Austin J (though there dealing not with the process for the taking of statutory accounts under s 85 but with accounts ordered to be taken in equity) set out the general principles which the court should follow when making an order for an account for administration and noted that when an order is made in equity for the taking of accounts the usual form of order is an order in common form or for common accounts. Such an order requires the defendant to account only for what he or she has actually received, and his or her disbursement and distribution of the amounts so received. His Honour noted that the defendant prepares accounts and that it is open to the other parties to surcharge or falsify items in those accounts; (a surcharge being the showing of an omission for which credit ought to have been given, and a falsification being the showing of a charge which has been wrongly inserted, the falsifying party alleging that money shown in the account as paid was either not paid or improperly paid, referring to Parker's Practice in Equity (New South Wales), 2nd edn, 1949, by GP Stuckey and CD Irwin, at 269) (at [38]). His Honour referred to Pt 48 r 6 of the Supreme Court Rules which preserves these procedures for challenging the account (at [38]). [109] The distinction between an order for accounts in common form and an order on the basis of wilful default was noted by his Honour as follows (at [44]): [44] The contrast between an order for an account of profits and an order for an account of administration in common form is obvious. The former provides a remedy for specific wrongdoing, while the latter "supposes no misconduct" (Partington v Reynolds at 256 (ER at 99)). [110] I note the differences in procedure by way of highlighting the alternative courses of action which the plaintiffs might have had in seeking to challenge the manner in which Alexander has conducted the administration. However, insofar as what they have sought is simply an order compelling the filing of statutory accounts (and not, for example, an order for the taking of accounts in equity on a wilful default basis) as I understand it the process to be carried out in the probate registry would be in essence an administrative one of verifying the accounts as filed (with whatever requisitions may be considered appropriate). I note, however, that it is likely that the accounts would need to be verified in order to comply with the practice of the probate registrar (in Mason & Handler on Succession Law & Practice, (at [1437.1]) it is said that, while not obligatory for accounts themselves to be verified in estates of persons dying before 31 December 1981, it is the current practice of the Registrar to require verification). Hence at the very least some form of dispensation from that strict requirement would be needed to take into account the present circumstances.

Administration of estate during Tanya's majority

1. I now turn to Tanya's claim for maladministration of Russell's estate by Anne from the time Tanya attained her majority on 14 May 1988. That is a period of some 33 years.
2. In principle, this period may be divided into two sub-periods. The first is between 14 May 1988 and 9 November 2015, when Tanya served her demand on Anne. During this period, Anne's obligations as administrator and trustee of Russell's estate may have been influenced by the existence of the family deal. From 9 November 2015 to the present time, the obligations of Anne and the other defendants may have changed because Tanya had abrogated the family deal.
3. During the first part of this period, Tanya was an adult and responsible for her own actions. Statutory limitation periods that would otherwise have expired during Tanya's minority expired on 14 May 1991: see Limitation Act s 52(1). Otherwise, statutory limitation periods commenced to run from the date relevant causes of action accrued to Tanya after 14 May 1988.
4. As the particulars of the breach of trust provided by Tanya [191] show, many of the alleged breaches were of a description that may have begun during Tanya's minority, and continued thereafter. Moreover, many of the alleged breaches described were of a repetitive or continuing nature, so that causes of action in relation to those breaches may have accrued both before and after Tanya achieved her majority.
5. Consequently, some of the issues considered above in relation to Tanya's present entitlement to maintain claims against Anne and the other defendants, or for an order against Anne that she account to Tanya, will apply during the period of Tanya's minority and the period now under consideration. The strength of those considerations may attenuate as relevant events occurred closer to the present day. Practical issues of proof may become less onerous the more recent the relevant events.
6. Two specific differences between the later and the earlier periods that must be considered are: first, the significance of the family deal; and secondly, the claims made by Tanya for credit for the contributions to Russell's estate that she made while an adult, as well as the defendants' corresponding claims for credit for their contributions.
7. Also, of possible relevance is that the statement of claim was filed by Tanya on 10 November 2016. Causes of action with six-year limitation periods arising after 10 November 2010 would not, in principle, be statute barred. However, the effect of the family deal continued until at least 9 November 2015, and perhaps thereafter, as a result of the possibility that the defendants may not reasonably have been able to respond to Tanya's abrogation of the family deal immediately.

The family deal within the Perry family

1. At the end of the hearing, there was no issue between the parties that they had made the family deal in relation to how the Fernmount land should be used during the lifetime of Anne. The defendants made the family deal a central plank of their submissions [192] . Tanya acknowledged [193] the existence of the family deal, although Tanya's submissions focused on the aspect of the family deal that Tanya described as the Fernmount land representations.
2. The family deal was not suggested to have given rise to any directly enforceable contract, but, insofar as the parties in various ways conducted their affairs on the basis that there was a consensus that all would conform with the family deal, and acknowledged the right of the others also to do so, the existence of the family deal and the reliance upon it by the parties, was capable in various ways of depriving the parties of their entitlement to insist upon the benefit of their strict legal rights.
3. In their submissions [194] the defendants set out the terms of the family deal on an inclusive basis, as follows: a Anne would live on the Fernmount land for the term of her life; b Anne could use the Fernmount land to generate income for herself and the family; c Anne would not pay rent d the Fernmount land could be and was used to secure loans for members of the Perry family for their own benefit; e major decisions would be discussed, but according to the defendants not necessarily agreed; f upon Anne's death, she would leave the property in equal shares to the children.
4. The defendants noted that Tanya claimed that the family deal also included an understanding that the children would not assert an entitlement to the property until Anne's death.

Cross-examination of Tanya concerning the family deal

1. I consider that Tanya, in her cross-examination, substantially accepted the existence of the family deal as alleged by the defendants, save for the question as to whether there had to be agreement, and not just discussion, as to how the Fernmount land could be used for the benefit of individual members of the Perry family. As set out below, I find that the family deal contained implied conventions that extended beyond the terms specified by the defendants in their submissions. Tanya was cross-examined as follows: [195] Q. I'll just come to that then. The family deal - and I know that's a loose expression - what was the family deal? A. The family deal was made with us from when we were children, and my earliest memories of Anne talking to us about the future was when I was about ten, I would say, and it was that she wanted to stay on the farm until she died, and that she would leave it equally in her will, split between the three of us, and that over the years, she would also add that any of the financial decisions or major decisions to do with the property and any real decisions to do with the property, we would all discuss. And as a family, we would decide that, and that was reinforced to me on multiple occasions. Q. Do you agree that if she may have had to pay rent, it might have impacted on her decision to stay at the property? A. She was our mother. We weren't looking at her to pay rent. Q. And after you turned 18, that continued, didn't it? A. That's right. Q. It continued all the way up to late 2015. A. That's correct. Q. In relation to Mark and Michelle, you've known since 2003 that they were grazing on the property? A. They were grazing on the property before 2003, but yes. Q. When did you first know that they were grazing on the property? A. Mark had run cattle there on and off since he was ten. Q. And you never objected to that? A. No. Q. And you never objected, can I say, to him running more cattle on the property as he got older? A. No, I did not object. Q. You knew that Mark and Michelle were paying almost all of the outgoings on the property? A. I didn't know the specifics beyond the rates, the water rates, and the insurance and the mowing. Q. But if there were any expenses associated with the running of that property, you knew that you weren't paying them? A. I believed Anne was paying. Q. And did you believe that Mark and Michelle were also paying? A. I wasn't aware of the detail of that. Q. You were aware from an early stage that Mark was using his own machinery on the property? A. We did have a tractor on the property. I've never witnessed him bringing his machinery onto the property. I would assume so, but I don't know. Q. And if he did, you would assume that it would be at his cost? A. Yes. Q. You were aware from an early stage that Mark and Michelle were renovating the cottage, or A. Yes. Q. Do you accept that their improvements and renovations added value to the property? A. The renovations they did were minor renovations. They painted the place, they got a second hand kitchen and they made it - put some blinds in and, I think, Anne and Mark did some tiling in the bathroom. It wasn't a major renovation, but they made it liveable. Q. How does it compare to the renovations that you say you contributed to for which you seek some form of recognition here? More, you did more, or they did more in relation to renovating the cottage, for example? A. I contributed some money towards painting is what I - that went towards paint. So the inside and outside were - were painted. Q. And the evidence of your contributions is set out in your affidavit, isn't it? A. That's correct. I mean, yes. Q. You've never suggested up until these proceedings that Mark and Michelle pay some agistment fee for cattle on the property? A. Can you repeat the question? Q. You've never suggested up until these proceedings that Mark and Michelle should pay some agistment fee for using the premises? A. I believed it was a fair deal that they were paying the outgoings and they were having their cattle as part of their business on the property. Q. But if, say, it's not a fair deal. If, say, for example, they were not making a profit as a result of the herd they were running on the Fernmount and the cost in maintaining the Fernmount property and doing what they were doing greatly exceeded their return, do you think they should be acknowledged for that? A. No, they shouldn't. If they didn't believe they were getting a fair deal, then they should have brought it to the attention of the family and there should have been a meeting about it, and we should have discussed it and agreed what was considered fair.

Effect of the Fernmount land representations

1. I have set out the Fernmount land representations as pleaded by Tanya in these reasons above [201] .
2. Tanya claims that, by reason of her acting upon the Fernmount land representations as she alleges were made by Anne, she did not pursue her legal rights, and, in particular, only discovered a number of significant rights as a result of her review of documents produced for the purposes of a family provision claim involving members of the Perry family that came to Tanya's attention in about 2015. Tanya claims that the effect is that she should be relieved of the running of time in respect of statutory limitation periods, and forgiven for conduct that may otherwise have been treated as laches or acquiescence, because she would have acted differently if the Fernmount land representations had not been made to her.
3. Specifically, Tanya submitted [202] : What effect does the making of the representations have on any statutory bar which may otherwise apply? (a) The representations were continuing representations. It is notable that Mark consistently noted his interest in the Fernmount land as one-ninth of the total both in Ellen's Estate proceedings and to Rabobank. (b) The representations induced Tanya not to further investigate her interest in the land as she understood that Anne was the "major shareholder" in the land, and that she intended to leave the property to each of the children in her will after staying on the land for her lifetime. (c) Once Tanya discovered the facts relating to her entitlement in her father's estate, and the level of the mortgage, any such consent to her mother staying on the land was withdrawn with the filing of the Amended Statement of Claim. (d) Tanya was cross-examined about whether she could have obtained legal advice as to her entitlements in relation to the property. While she agreed that she could have done so, given the representations, it is understandable that she did not.
4. In Tanya's first affidavit made on 27 February 2017 she said: 69. I recall being told by Anne, as a child and on more than one occasion throughout my childhood, words to the effect that (when addressing Mark, Louise and I): "I won't sell the farm. I'm going to keep it until I die and leave it to you three equally in my Will. As such, all financial decisions concerning the farm will be made with the involvement of the three of you."

Relevance of beneficiaries' contributions

1. Tanya submitted [204] that mortgage payments by Tanya of $300 per month for three years, and the payment of $3,000 towards the renovation of the cottage on the Fernmount land, should be "counted in her favour when ascertaining each beneficiary's interest in the estate, or the proceeds of sale of Fernmount". Tanya also submitted [205] that, for various reasons, the contributions claimed by Anne, Mark and Michelle should not be allowed, largely because of Tanya's claim that those beneficiaries enjoyed offsetting benefits for which they made no payments to Russell's estate.
2. I have not been able to find anywhere a submission by Tanya as to the basis upon which any beneficiary, who made contributions for the benefit of Russell's estate, was entitled to allowances when their respective beneficial interests in the estate were determined.
3. Anne, as the administrator and trustee, is clearly an accounting party, and would be entitled to claim allowances in the accounting process, and, in that process, would have to give credit for benefits received. Tanya did not identify any basis in principle whereby mere beneficiaries of the estate should be entitled to allowances for benefits that they voluntarily bestowed upon the estate.
4. There was no suggestion by any party that it was an aspect of the family deal that there would be some accounting for contributions to Russell's estate, and the value of benefits received, as part of the administration of Anne's estate after her death. The absence of such an aspect of the family deal militates against there being a legal entitlement of the beneficiaries for an accounting to be had.
5. The aspect of the family deal that appears to have allowed Anne to permit Mark and Michelle to agist their cattle on the Fernmount land without an agistment fee, but on the basis that they carried out maintenance and improvements to the land, is inconsistent with there being a final accounting entitlement as between all of the beneficiaries. Viewed realistically, the family deal did not require Mark and Michelle to keep accounts that balanced some notional agistment fee against the value of maintenance and improvements, with vouchers being kept for the purpose of the ultimate accounting.
6. I have considered the possible application of the principles derived from the following extracts of the judgment of Deane J in Muschinski v Dodds [206] : … Both common law and equity recognize that, where money or other property is paid or applied on the basis of some consensual joint relationship or endeavour which fails without attributable blame, it will often be inappropriate simply to draw a line leaving assets and liabilities to be owned and borne according to where they may prima facie lie, as a matter of law, at the time of the failure… … The prima facie rules respectively entitling a fixed term partner to a proportionate refund of his or her premium and a contractual joint venturer to a proportionate repayment of his or her capital contribution on the premature dissolution of the partnership or collapse of the joint venture are properly to be seen as instances of a more general principle of equity. That more general principle of equity can also be readily related to the general equitable notions which find expression in the common law count for money had and received (cf Moses v Macferlan (1760) 2 Burr 1005 at 1012; [97 ER 676 at 680-1]; J & S Holdings Pty Ltd v NRMA Insurance Ltd (1982) 41 ALR 539 ; 61 FLR 108 at 120) and to the rationale of the particular rule of contract law to which reference has been made: cf Fibrosa, supra, at p 61ff and esp. at p 72). Like most of the traditional doctrines of equity, it operates upon legal entitlement to prevent a person from asserting or exercising a legal right in circumstances where the particular assertion or exercise of it would constitute unconscionable conduct: cf Story, Commentaries on Equity Jurisprudence, 12th ed (1877: Perry ed), vol 2, par 1316; Legione v Hateley (1983) 152 CLR at p 444). The circumstances giving rise to the operation of the principle were broadly identified by Lord Cairns LC, speaking for the Court of Appeal in Chancery, in Atwood v Maude (1868) LR 3 Ch App at p 375 where "the case is one in which, using the words of Lord Cottenham in Hirst v Tolson (1850) 2 Mac and G 134; 42 ER 52, a payment has been made by anticipation of something afterwards to be enjoyed [and] where … circumstances arise so that future enjoyment is denied". Those circumstances can be more precisely defined by saying that the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do: cf Atwood v Maude at 374-5, and per Jessel MR, Lyon v Tweddell (1881) 17 Ch D 529 at 531.

Guarantee and mortgage over the Fernmount land

1. As I have explained above at [51], Tanya sought orders that Anne account to Tanya on a wilful default basis, and that Anne, Mark and Michelle indemnify Tanya, in respect of the consequences of a mortgage that Anne granted over the Fernmount land to secure a guarantee given by Anne in respect of loans taken out by Mark and Michelle to acquire and improve their dairying enterprises.
2. Tanya did not seek orders that required Anne, Mark and Michelle to take the steps necessary to terminate the guarantee and discharge the mortgage over the Fernmount land.
3. Consequently, Tanya would only become entitled to orders that Anne, Mark and Michelle compensate Tanya if the mortgagee exercised its security rights under the mortgage over the Fernmount land in a manner that diminished the value of Tanya's interest in that property as a beneficiary of Russell's estate.
4. As it has happened, the mortgagee has not exercised its security rights, and, during the course of the hearing, Mark and Michelle refinanced their loan arrangements in respect of their dairying enterprises, which had the consequence that Anne's obligation as guarantor was released and the mortgage over the Fernmount land was discharged.
5. Accordingly, whether or not Tanya would otherwise have been entitled to declaratory relief in respect of an entitlement to an account or indemnity from Anne, Mark and Michelle, there is no longer any utility in that relief being granted.
6. The guarantee was released, and the mortgage discharged, after the parties had fully contested Tanya's claim in respect of the guarantee and the mortgage over the Fernmount land, and the parties had substantially completed making their submissions to the Court on the issue.
7. In those circumstances, the Court should deal with this aspect of the dispute, as it may be relevant to the determination of the costs orders that should be made in these proceedings.
8. As I recorded at [53] above, Tanya also claimed an order against Mark and Michelle that they account to Tanya for the profits that they have made by means of the use of Tanya's interest in the Fernmount land. As I understand it, Tanya has not supported that claim for relief in her final submissions. Tanya has not identified any principle that requires one beneficiary, who has made a profit from the use of the capital of an unadministered deceased estate, with the unauthorised consent of the administrator, to account for that profit to another beneficiary, at least where the use of the capital has not diminished the estate. There has been no suggestion that a beneficiary owes a fiduciary duty to the administrator or other beneficiaries in respect of the use of the estate's capital that comes into the beneficiary's hands. Furthermore, even though there was evidence that Mark and Michelle could not have secured the loans necessary for them to acquire and improve their dairying enterprises without the guarantee and mortgage granted by Anne, there was no evidence that could support a determination of the proportion of the profits made by Mark and Michelle that could be attributed, on a principled basis, to the granting of the guarantee and the mortgage.

The joint venture agreement

1. As I have noted above at [56]-[57], Tanya sought a declaration that Anne holds "the value" of a joint venture agreement on trust for Tanya and Louise. That value is said to be the amount by which the value of the Fernmount land was increased because a development approval for the construction of a particular eco-tourism development on the property has become permanent. Consequently, any purchaser of the Fernmount land will be permitted to construct the eco-tourism development the subject of the approval, and will not have to incur the costs or risks involved in preparing the development plan and taking the steps necessary to obtain the council's development approval.
2. Tanya claimed that the amount held on trust by Anne should be the greater of $350,000 and the difference between the market value of the Fernmount land without the development approval and the eventual sale price.
3. An analysis of the pleadings concerning Tanya's joint venture claim is set out above at [125]-[142]. In substance, the defendants admitted most of Tanya's allegations concerning the practical steps involved in obtaining the development approval, and that the development approval is now permanently attached to the land. The defendants denied that a joint venture agreement was made in the terms alleged by Tanya and recorded at [127] above. The defendants also denied that the attachment of the development approval to the Fernmount land had increased its value. The defendants denied Tanya's claim that she undertook approximately 80% of the work and spent approximately 40% of the funds required to obtain the development approval. The defendants also pleaded that, if the Court found that the value of the Fernmount land had been increased by reason of the attachment of the development approval, they were also entitled to a proportion of the increase in value, and that their contribution to obtaining the development approval was significantly more than the amount credited to them by Tanya.
4. The parties fought many strenuously contested issues concerning Tanya's joint venture claim. The resolution of many of those issues would require the Court to determine contested issues of fact concerning the substance of conversations between the parties that occurred on multiple occasions over a lengthy period commencing in about March 2008.
5. The need to resolve those evidentiary disputes depends upon the Court finding that, now that the Fernmount land has been sold and the net proceeds of sale retained, an identifiable part of those proceeds is attributable to the attachment of the development approval to the Fernmount land.

Estate's interest in the Fernmount land

1. As I have explained above, the defendants claimed that Tanya's entitlement is limited to 21% of the unimproved capital value of the Fernmount land.
2. The defendants' position on this issue is, in substance, that as the original dwelling on the Fernmount land had burnt down, the value of the improvements should not be included in Russell's estate, as they were made and financed by the efforts of Anne and her brothers, and the property was maintained over the years by the efforts of Mark and Michelle, with very little contribution from Tanya and Louise.
3. To put this issue in context, I refer to the following aspects of the expert valuation evidence tendered by the parties. The defendants' valuation expert was Mr Guest who, in the context of attributing a total value to the Fernmount land of $1,130,000 as at 28 March 2017, valued the improvements at $180,000 [225] . Tanya's expert, Mr King, expressed the opinion that the value of the Fernmount land as at 11 July 2017 was $1,310,000 (excluding the value added by the development application) of which the improvements were valued at $255,000 [226] .
4. As the Fernmount land eventually sold for a price of $1,750,000 by contract exchanged on 6 April 2021, the value of the improvements may have increased somewhat.
5. In order to demonstrate my point, I will assume that the value of the improvements at the time of sale was $240,000, which is an escalation of the average of the values adopted by the two valuers.
6. At 21%, Tanya's share of this adopted value for the improvements on the Fernmount land would only be about $50,000, so this is approximately the value of this issue to the defendants.
7. As a matter of legal principle, it would not be a simple matter of excluding the improvements from Russell's estate on the basis that the dwelling on the property burnt down shortly after Russell's death, and Anne, and to a lesser extent Mark and Michelle, were responsible for building and maintaining the improvements. The reason is that all of the improvements are fixtures and, as such, they became part of the Fernmount land, and so part of Russell's estate.
8. As the administrator of Russell's estate, Anne may, as a matter of legal principle, be entitled to claim allowances for her expense and effort in improving and maintaining the estate. However, Anne could only realise the benefit of that entitlement by participating in an accounting in respect of the affairs of the estate since the grant of letters of administration to her on 23 September 1975. As explained by the learned editors of Jacobs' Law of Trusts in Australia (8th ed, LexisNexis Butterworths), Anne's real entitlement is to an allowance in the accounting process for her expenditure on improving the trust estate: see Re Walder; Townsend v Walder [227] .

Replacement of administrator

1. As Russell's estate has now been realised and takes the form of the net proceeds of sale of the Fernmount land held in a solicitor's controlled money account, Tanya's application for a revocation of the grant of letters of administration to Anne and the appointment of a new administrator has been overtaken by events, and is no longer necessary or convenient. It is not warranted that the costs of the replacement of the administrator be imposed upon the estate.
2. It should be possible for the parties to agree to orders to give effect to these reasons for judgment that will include the steps necessary for the final administration of Russell's estate.
3. Even if it were appropriate for the Court to make orders that risked squandering the balance of the estate by requiring the parties to engage in an accounting process, the proper participants in the taking of accounts would be the parties themselves, and there would be no necessary role for a replacement administrator.
4. Consequently, I will not make any orders at this stage for the replacement of Anne as the administrator of Russell's estate.

Summary of conclusions

1. As a result of the circumstances in which these reasons for judgment have been prepared, it has happened that the issues have been considered in a somewhat episodic way and it has been a challenge to deal with all of the issues coherently.
2. I will require the parties to consider these reasons and to submit draft short minutes of order to give them effect. I will be open to submissions that the Court has not sufficiently dealt with issues that are essential for determination in order to finally bring these proceedings to a conclusion.
3. In order to assist the comprehension of these reasons, I will now set out in summary form the principal conclusions that I have reached. I will firstly deal with the relief sought in the proceedings: see the analysis at [34]-[59] above: 1. The Court will not make orders for the revocation of the grant of letters of administration to Anne or the appointment of a replacement administrator, as the need to do so has been overtaken by events, and the completion of the administration of Russell's estate may be effected by appropriate orders made by the Court. 2. Tanya is entitled to a declaration that she is entitled to two ninths of Russell's estate. 3. The estate the subject of Tanya's entitlement will be two ninths of the net sale proceeds of the Fernmount land (subject to the resolution of issues as to costs not yet dealt with), unless Anne pursues her application for an account in order to limit the interest of Russell's estate in the Fernmount land to its unimproved capital value. In that event, Anne will open up the right of all beneficiaries of the estate to require Anne to give a full account of her administration of the estate. 4. Tanya will be entitled to a declaration that Anne holds the whole of the net proceeds of sale of the Fernmount land on trust, unless Anne elects to institute the accounting process referred to above. 5. The Court will not now, in the exercise of its discretion, make an order at the suit of Tanya that Anne account to Tanya on a wilful default basis in respect of her use of the Fernmount land and the proceeds of sale of the Pony Paddocks. 6. Accordingly, the Court will not make any order that Anne pay to Tanya any money found to be due to her as a result of the taking of the account. 7. The Court will not make an order that Anne indemnify Tanya in respect of the loss of Tanya's share in the proceeds of sale of the Pony Paddocks. 8. It is no longer necessary for the Court to consider making an order for the sale of the Fernmount land, as that property has been sold by the voluntary act of Anne. 9. As Anne, Mark and Michelle have taken the steps necessary to cause the guarantee and mortgage over the Fernmount land granted by Anne to be discharged, without any loss to Russell's estate having occurred, there is no utility in the Court making orders that Anne account to Tanya or that Anne, Mark and Michelle indemnify Tanya in respect of the grant of the guarantee and the mortgage. 10. The Court will not make an order that Mark and Michelle account to Tanya for the profits that they have made as a result of the guarantee and the mortgage over the Fernmount land having been granted by Anne. 11. The Court will not make any order that Anne holds on trust for Tanya exclusively any portion of the net proceeds of sale of the Fernmount land on the ground that that portion is attributable to the value of the development approval that resulted from Tanya's efforts, as no additional value attributable to the development approval has been established. 12. The Court will not order that an accounting be undertaken to ascertain the value of Tanya's separate contributions to Russell's estate, and accordingly no such accounting will be undertaken to determine the value of any contributions by Mark and Louise.

Endnotes

1. FASOC par 25B
2. FASOC par 25C
3. FAD pars 24B and 24C
4. FAD pars 13 to 16
5. FASOC pars 13 to 16
6. FASOC par 17
7. FAD par 17
8. FAD par 19
9. FASOC par 19
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11. FAD par 20
12. FAD par 21
13. T 5.45
14. T 6.22
15. FASOC par 21A
16. FAD par 21A
17. FASOC par 21B
18. FAD par 21B
19. FASOC par 21C
20. FAD par 21C
21. FASOC par 21D
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24. FAD par 22AA
25. FASOC par 22A
26. FAD (first) par 22A
27. FASOC par 22B
28. FAD (first) par 22B
29. Reply par 1A
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31. FAD par 22
32. Reply par 2
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34. FAD (second) par 22A
35. FASOC par 23B
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38. FASOC par 24
39. FASOC par 24A
40. FAD par 23A
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44. FASOC par 25
45. FAD par 24A
46. FASOC par 25A
47. FAD pars 25 and 26
48. FASOC pars 26 and 27
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50. FAD par 27
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61. Reply par 3
62. Reply pars 5 to 12
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67. Reply par 9