Plaintiff v Defendant

WILLS AND ESTATES - Trust power to give options to the defendant and then plaintiff to purchase Llwynfryn - Conduct of the parties - Proceedings commenced by the plaintiff - Summons seeking interlocutory relief settled - Orders of the Court - Trust vested - Whether and when agreement made between the parties - Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353 - Express terms of the agreement - Whether any and if so what implied terms of the agreement - Byrne v Australian Airlines Ltd (1995) 185 CLR 410 - Conduct viewed objectively - Engagement of certified valuer - Valuation of property - 'Validity' of sworn valuation - Whether options offered in compliance with terms of the agreement (and clause (e) of the will) - Implied offer of option to defendant declined by conduct - Offer of option to the plaintiff impliedly declined by conduct - Plaintiff not ready, willing and able to accept option - Terms of agreement and clause (e) of the will remain to be performed.

WILLS AND ESTATES - Application to remove administrator - Conduct of administrator in respect of brother, destroyed intellectual property and finances of the estate - Administration and Probate Act 1958 (Vic), s 34(1)(c) - Miller v Cameron [1936] HCA 13; (1936) 54 CLR 572, Dimos v Skaftouros [2004] VSCA 141; (2004) 9 VR 584, Re Anthony; Rogan v Rogan [2017] VSC 668 and Richardson v Johnson [2018] VSC 85 - Administrator to be removed.

1 The deceased, Henry Geraint Madoc Vaughan ('deceased'), was born in Wales and emigrated to Australia in the early 1960s. At trial, he was referred to variously as 'Henry', 'Harry' and 'Geraint'. The plaintiff and defendant each referred to him as 'Dad'.

2 The deceased was a qualified aeronautical engineer and, from about 1971, conducted business via his company, System Dynamics Pty Ltd ('System Dynamics'). Several witnesses acknowledged him as having been a talented visionary in the field of robotics.

3 In 1974, the deceased commenced a relationship with Penelope Carole Dunn, referred to variously in the evidence as 'Penny', 'Penni' and 'Carole'. In these reasons, I will refer to her as Carole.

4 At that time, Carole had two young children: the plaintiff and the defendant. The deceased became their stepfather.

5 The plaintiff is presently 50 years of age. The defendant is his older brother.

6 In the mid-1980s, the deceased and Carole separated. The deceased moved to a property at 21 Renown Road, Balnarring. The property contains a residential dwelling and three sheds. The deceased had various animals on the property, including several sheep. Part of the property is zoned 'general residential', with frontage to Renown Road. The other part is zoned 'green wedge'. The residence is on the part of the property zoned 'green wedge'. The property was named 'Llwynfryn', with reference to the deceased's Welsh heritage. Much more will need to be said about Llwynfryn later in these reasons.

7 The plaintiff and defendant resided with Carole in Lower Templestowe; at least until finishing school. Thereafter, they took divergent paths.

8 The plaintiff remained close to Carole and, at the time of trial, seemed to be residing from time to time in Carole's residences in Lower Templestowe and/or Kinglake. In the course of the trial, it emerged that the Kinglake property had been affected by the Black Saturday bushfires and that the plaintiff had suffered injuries for which he had subsequently received compensation.[1] It also emerged that Carole is a costs consultant.[2]

9 In terms of career, the plaintiff completed a Diploma of Engineering Technology (Mechanical), which included studies in robotics. He worked in several businesses, but at some point commenced working with the deceased in the business of System Dynamics. At all material times, that business was conducted from rented factory premises at Bricker Street, Cheltenham ('factory').

10 There was no dispute that the plaintiff worked with the deceased in the business from 1993 until about 2006. The plaintiff said that he worked full time until 2008, part time until 2018 and that he thereafter continued to work 'on call'; which required him to attend the factory relatively regularly until the deceased's death on 11 June 2019.

11 The plaintiff said that while he and his stepfather argued from time to time - 'like any family',[3] as he put it - they spoke regularly up until the passing of the deceased. Among other things, the plaintiff said that he would have liked to have kept the business running after his stepfather's death[4] and that he and his stepfather had discussed upgrading the machines in the factory.[5]

12 By contrast, the defendant pointed to tax and other records and contended that the plaintiff had not had any gainful employment between 2009 and 2019.[6]

13 The defendant also maintained that the plaintiff had fallen out with the deceased in 2013 and again in about 2015 and/or 2016. The defendant believed that the plaintiff and his stepfather had been largely estranged from that time and until the deceased's passing. He did not believe that the plaintiff had been in the factory 'in any meaningful way' since 2014, and not at all since a 'massive row and rift' concerning the factory in 2016.[7]

14 For his part, the defendant moved away from his mother and brother at about the age of 20 and thereafter worked in several employments, including as a chef, until joining the police force. He is presently a detective leading senior constable at the counter-terrorism security investigation unit.

15 The defendant did not ever work with the deceased in the business. However, the defendant gave evidence of almost daily contact with the deceased in the last years of his life. He described himself as having been his stepfather's carer in 2016.[8] The defendant said that he saw his stepfather regularly in hospital and that they spoke 'every day, every second day'.[9]

16 The defendant spoke of the deceased's poor health in the last years of his life and said that the deceased had not been at the factory much in 2016, less in 2017 and not at all in 2018 and 2019.[10] The defendant said that the deceased had spoken about closing down the factory in 2016, which had led to the 'massive rift' with the plaintiff.[11] The defendant said that in about the last week of his life the deceased had been 'really bad' and the deceased had told the defendant to 'get rid' of the factory and that he had left it in a 'terrible mess'.[12]

17 More broadly, the defendant referred to the deceased's financial position in the last years of his life and tended variously to emphasise that -

(a) such financial records as have been recovered do not suggest that System Dynamics had been undertaking significant business in the years prior to the deceased's death;

(b) System Dynamics was deregistered on 22 March 2019;

(c) the factory had been rented since 1991 and the deceased had passed away with outstanding rent owing;

(d) on 12 September 2019, the landlords of the factory had given notice that they were re-taking possession of the factory and its contents on account of the outstanding rent;

(e) Llwynfryn was mortgaged to the ANZ Bank; and

(f) in the period prior to his death, the deceased had been living off his credit card and, it seems, drawing down on the mortgage over Llwynfryn.

18 In that general context, in some periods after their separation, the deceased and Carole seem to have maintained a degree of civility. However, at the time of the deceased's passing, the relationship between them seems to have been antagonistic, to say the least.

19 In that connection, parts of the evidence tended to suggest that there was something of a long-standing alliance between the plaintiff and Carole. However, the defendant seemed also to be antagonistic towards Carole.

20 In that setting, it is of present significance that in about 2014 the plaintiff and defendant fell out in respect of a property development in Heidelberg. That seems to have occurred shortly after the defendant's wedding to his wife, Michelle; at which the plaintiff had been the best man. The dispute concerning the property development came to be the subject of a proceeding in the Victorian Civil and Administrative Tribunal ('VCAT').

21 Since that time, relations between the brothers have not been good and it seems that they speak rarely, if ever. During the trial, the persisting animosity between them was quite apparent; albeit that, at times, each expressed a measure of distress relating to it. However, it was clear enough that they have not been able to find a way to diminish or resolve their differences. In many ways, the passing of the deceased and what has become the present dispute seems to have exacerbated those differences; which now appear to be entrenched and irretrievable.

22 As I have indicated, the deceased passed away on 11 June 2019.

23 In the period that followed, the plaintiff and defendant exchanged text messages relating to several topics, including the deceased's funeral. In that regard -

(a) on 17 June 2019, the defendant said 'Dad has said he does not want [Carole] anywhere near the church, his house or his will' and, specifically in respect of the funeral, said that Carole was 'unwelcome', would be asked to leave and would also be breaching a 'current and active' intervention order if she were to attend;[13]

(b) the plaintiff responded to the effect that the defendant's message 'contradicts [Dad's] last advices to me at the Rosebud hospital on Sunday 9th June 2019' and, among other things, the plaintiff requested a copy of the will and said that church is a 'public place' and that 'mum and I shall be attending';[14]

(c) the defendant took issue with that account, reiterated that the deceased had insisted that he did not want Carole 'anywhere near him, hospital, home or anywhere near the handling of his affairs after he passed' and concluded as follows -

Please let me assure you he despised her intensely. I advise you to rethink your position as ... it stands, you are once again doing what you want, and not considering what the guy in the coffin wants. I'm not engaging with you any further.[15]

(d) the plaintiff responded saying, among other things, 'he was my dad too', and, shortly after midnight, expanded in the following terms -

She is going to his funeral to pay her respects. Thats it.

Who made you in charge. You say you have been given explicit instructions supporting your allegations but not mentioned by who.

I have received no such advice from the executor of his estate and don't expect to because it is an unreasonable request to make.

Am I to understand you and the executor of his estate are in private consultation making private arrangements without notifying all beneficiaries.

I would say that constitutes a breach of executorial duties and would entitle those involved to make application to have the executor removed by legal right in the Supreme Court. Be careful. You weren't present when I saw him so you don't know.

You forgot you told me dad was unconscious the whole time you were with him before he passed, and could easily be confirmed with the hospital. I know Sian [Millane] was the only one with you at that time because I spoke with her on the phone.

Be advised that no part of dads estate is to be removed from where it is.

Any photographs or items needed for the funeral are to be returned after that time. It is an offence to interfere with an estate before the probate has been granted. If it is the executor is the one held accountable. So think.

I am aware of everything dad possessed. Right down to his fathers pocket [watch].

Dad wanted us to handle things together. That was his last wish to me.

Do not take your friends, wife or in laws to dads property or business.

He was a very private person and did not want other people involved at that level.[16]

(e) the plaintiff pursued matters further the following morning, and also asked for the identity of the executor - to which request the defendant did not respond;[17]

(f) the following day, 19 June 2019, the plaintiff texted to the effect that he was at the factory and had been told that the defendant had changed the lock. He reiterated that the defendant had no authority to dispose of the deceased's assets and indicated that Supreme Court proceedings would be brought if any assets were removed. The defendant, again, did not respond;[18]

(g) more than 10 days later, on 30 June 2019, the defendant texted that the deceased's will 'and associated docs' had been placed in the plaintiff's letterbox;[19]

(h) the plaintiff responded with various queries - to which the defendant ultimately responded 'Not your concern' and 'Just collect and read';[20]

(i) a week later, on 7 July 2019, the plaintiff texted that he had received copies of the will 'and associated paperwork' and posed queries which the defendant initially answered (albeit tersely), but when the queries continued the defendant texted -

Why do you care?

You have dads letters of intention - you are not to be involved.

Don't worry you'll be looked after

(j) the plaintiff responded saying, among other things, 'I am involved', but the defendant restated his position and then essentially refused to engage any further;[22] and

(k) later, in September 2019, the plaintiff asked the defendant to contact him 'regarding dad's estate' to which the defendant initially responded 'Have a good day' and then did not respond at all.[23]

24 It will be evident that the text exchanges carry an entrenched flavour of suspicion and disputation that may also be seen in the correspondence and other communications that followed. It will be necessary to go to parts of that material in due course.

25 The last will of the deceased is dated 1 May 2013 ('will').[24] The defendant gave evidence that, before he passed, the deceased told him about the location of the will as well as some letters.[25]

26 The letters included two unsigned letters of the deceased addressed to the plaintiff dated 14 and 25 April 2013 respectively ('2013 letters').

27 The first of the 2013 letters reads relevantly as follows -

Dear James,

I feel increasing[ly] sad as each day passes without any contact from you - the last time was Christmas 2012. I realize that you feel duly justified since some wrong has been inflicted upon you - what it is I have no idea.

In the intervening time Simon and Michelle became officially engaged and I went through hip surgery - both apparently of little significance in your view.

You obviously realize that Michelle, in particular, was more than a little hurt by your non-attendance at their engagement party, 100 plus people were glad to go - but not his brother.

Try if you can, to reverse the situation - where Simon & I could not be bothered to neither attend your engagement party nor visit you in hospital - I suspect you would not like it at all and feel poorly done by.

Anybody who is aware of the situation realizes that the root cause of the problem stems from your mother's paranoia regarding any woman in Simon's life - and her need to control others - including yourself. The worst decision you made was to move into her house whilst your townhouses were being built, we won't go into that subject in detail.

I wonder what life has in store for you - in a few weeks you will be 40 - normally a milestone in most people's lives.

It does not seem right that you value financial security and property ownership to such a degree that inhibits any normal social life - friends, female relationships, interests, travel etc - but also in not having a job, despite all your skills, means you are missing out on what most people enjoy - a feeling of worth & fulfillment - think back to your days at Tasman Engineering.

It seems obvious that the sooner you break free of your mother's clutches - the better off you'll be and hopefully get life back to normal.

Please accept this as constructive advice, not as unfair criticism meant to wind you up. If you wish to respond, then I would look forward to hearing about your future plans.

All the best,

Dad.[26]

28 The second of the 2013 letters reads relevantly as follows -

James,

I have come to realize that there is nothing I can do to help you regain a normal life as you simply don't want to. You prefer to stay in the relationship with your companion.

No response to my letter of 14 April - from you - but a predictable stream of vitriolic insults from your deranged and alcohol fuelled mother.

It is an awful position for a family to be in, but your disdain for my personal well-being and the sound advice given to you in good faith has triggered off this closure.

It is hard to reconcile your attitude when reflecting on all the assistance given to you in the past, to name just a few:

• apprenticeship with System Dynamics

• assistance with specialized courses

• World trip - Asia, Europe, USA, Canada and Great Britain.

• Exposure to large companies here in Australia.

• Multiple bonuses for your RX-7, most of the cost of a new ute tray.

• The use of the Falcon ute & the Clubsport from time to time.

You have certain items in the factory, which you own, if you wish to retrieve them you will have to arrange a suitable time, since the locks are being changed - I need to know who has access to my factory.

If I don't hear from you they will go to the tip.

I am sick and tired of having to worry about your future, it is in your hands now, you will shortly be 40.

Dad.[27]

29 I have extracted the whole of the relevant parts of the 2013 letters; partly because they were referred to in the text messages detailed above. However, the defendant also referred to the 2013 letters directly and indirectly in the course of his oral evidence and it was quite plain that they have borne very significantly upon his thinking and conduct.

30 For his part, the plaintiff denied receiving the 2013 letters on or about the dates they bear; although, as I have earlier noted, he seems to have received them from the defendant by about 7 July 2019.

31 As to the will, by clauses 2 and 3, the deceased appointed his brother, David Rheinallt Vaughan, as executor and trustee of his estate as well as the trustee of a trust fund established by the will. At trial, Mr Vaughan was generally referred to as 'Rheinallt'.

32 In the event that Rheinallt was unwilling or unable to act as executor and trustee, the deceased appointed his niece, Angharad Vaughan. At trial, Ms Vaughan was generally referred to as 'Angharad'.

33 Rheinallt and Angharad each reside in the United Kingdom.

34 As I have earlier noted, the deceased sought, by clause 5 of the will, to establish a trust fund in respect of which his trustee should hold his right, title and interest in Llwynfryn and his shares and interest in System Dynamics.

35 The preamble and clauses relating to the trust fund are contained in a schedule to the will and provide, relevantly, as follows -

IT IS MY WISH AND I DIRECT that my Trustee hold the Trust Fund for the purposes set out herein as follows:

(a) to provided holiday accommodation for my extensive family including my sons and my relatives in the United Kingdom and Canada (but always excluding my former wife Penelope Dunn).

(b) to be used as an animal sanctuary as far as practicable as determined by my Trustee in his or her sole and absolute discretion which animal sanctuary is to be managed by my son said SIMON MATTHEW DUNN-VAUGHAN under the guidance of my Trustee, and always excluding any involvement of the said Penelope Dunn whatsoever.

(c) my Trustee is empowered to raise sufficient funds for the general maintenance and upkeep of the property and the well-being of the animals and my Trustee may raise funds in any way my Trustee sees fit including from outside sources, including but not limited to utilising the property and all the animals in any commercial venture, accepting contributions from visitors or in any way my Trustee sees fit in his or her sole and absolute discretion.

(d) my shares and interest in the company SYSTEM DYNAMICS PTY LTD are to be held by my Trustee as long as possible and IT IS MY WISH that my Trustee use as much of the funds therefrom to reduce the registered mortgage over Llwynfryn.

(e) on the vesting day I DIRECT my Trustee to give my said son SIMON MATTHEW DUNN-VAUGHAN the option to purchase Llwynfryn from my estate for market value as determined by a sworn valuation of Llwynfryn obtained by my Trustee. If Simon does not wish to purchase Llwynfryn then my said son JAMES MARTIN DUNN may be given the option to buy Llwynfryn from my estate on the same conditions as offered to my son Simon. If neither of my said sons wish to purchase Llwynfryn, or fail to complete the purchase of Llwynfryn within ninety (90) days from the date of being offered to do so, then my Trustee is to sell Llwynfryn and distribute the proceeds in accordance with Clause 3 of this Schedule.

(f) it is my intention that my sons contribute equally towards the running costs of Llwynfryn and I require them to contribute the sum of Two Hundred and Fifty Dollars ($250.00) per calendar month each from the date of my death for that purpose, such amounts to be paid to my Trustee or as my Trustee directs. If either or both of my said sons fail to contribute the said amount and the amounts referred to in (g) of this Preamble then my Trustee may in my Trustee's sole and absolute discretion:

1. elect to vest the Trust Fund two years from the date of my death, in which case the Trust Fund shall be deemed to have failed, and the proceeds of the Trust Fund shall be paid in accordance with Clause 6 of my Will; or
2. deduct such amounts as have not been paid by either or both of my said sons from the final amount to be paid to that son or those sons upon the vesting of the Trust Fund.

(g) my Trustee is authorised to obtain a second mortgage over Llwynfryn if my Trustee considers this is necessary for the running of Llwynfryn and my said sons are required to also share equally the costs of that second mortgage.

(h) for clarity, my intention is that if my said sons fail to contribute the required amounts to the running of the Trust Fund then I would like my said brother David Rheinallt Vaughan to pay for those expenses for two (2) years and if he does so then I will reward him by giving him one third of the Trust Fund.

(i) for clarity, it is my express direction that under no circumstances is any assistance or advice to be sought from or accepted by the said Penelope Dunn and it is my express direction that she is not permitted to enter Llwynfryn at any time, even with one of my sons.[28]

36 In the proceeding, particular attention came to be directed to clause (e); and both parties essentially came to accept that the trust had vested by 17 December 2019.[29]

(a) if the gifts contained in the trust fund should fail, the trustee should hold Llwynfryn and the deceased's shares and interest in System Dynamics on trust to divide such into three equal parts to be paid or transferred to the defendant, plaintiff and Rheinallt respectively (clause 6);

(b) specific gifts should be made of a Rover vehicle and pocket watch to Rheinallt, a Triumph vehicle to the defendant and a utility motor vehicle ('ute') to the plaintiff (clause 7); and

(c) the residue of the estate should be called in, converted to money and held on trust to pay the debts and any other liabilities of the estate and the balance paid equally between the defendant and plaintiff (clause 8).

38 I have earlier indicated that it will be necessary to examine some of the relevant events and evidence in detail, however it is presently sufficient to note that -

(a) in the period after the deceased's death, Rheinallt and the defendant communicated concerning the estate and the defendant took various steps in respect of the administration of the estate - he said, as agent for and on behalf of Rheinallt;[30]

(b) those steps included[31] -

(i) reviewing the will;

(ii) dealing with the ANZ Bank;

(iii) retaining a solicitor (Tony Bowlen of Bowlen Dunstan & Associates Pty);

(iv) identifying and dealing with the real estate agent of the factory landlords (Morrison Commercial);

(v) attending the factory, including changing the lock and arranging for his father in law, Greg Marchio, to video parts of its interior and contents;[32]

(vi) contacting and dealing with an auctioneer (Michael Bent) with a view to appraising and clearing various contents of the factory; and

(vii) attending and arranging for a valuation of Llwynfryn;

(c) in respect of the latter, by report dated 17 July 2019, AJ Kensley, certified practising valuer, valued Llwynfryn at $1,800,000 ('Kensley valuation');[33]

(d) as early as 14 June 2019, Rheinallt indicated that neither he nor Angharad were willing to be executor and trustee of the will, which he then confirmed on 17 June 2019[34] - albeit that, in oral evidence, the defendant maintained that Rheinallt had 'flipped and flopped';[35]

(e) during the period from late July until early August 2019, Rheinallt and Angharad each formally renounced appointment as executor and trustee of the will;[36]

(f) on 27 August 2019, the defendant sought advice from new solicitors (AMS Ivanhoe Lawyers) ('AMS');[37]

(g) on about 17 September 2019, the defendant made application for letters of administration with the will annexed - which application was accompanied by an affidavit that exhibited an inventory of assets and liabilities of the estate signed by the defendant;[38]

(h) on 23 September 2019, the plaintiff lodged a caveat in respect of the estate of the deceased - which later lapsed;[39]

(i) on 4 November 2019, the Court issued the defendant letters of administration with the will annexed;[40]

(j) on 28 November 2019, the plaintiff lodged a caveat over Llwynfryn;[41]

(k) on 29 November 2019, AMS wrote to the plaintiff relevantly as follows -

The Administrator has now taken steps to secure all Estate property and you are forbidden from attending the factory and Llwynfryn without prior consent of and arrangement with the Administrator. Any transgression is considered to be a trespass and action will be taken against you.

You are not to attend to livestock or undertake any of the responsibilities that fall to the Administrator. The Administrator has assumed all such responsibilities and you have no authority by which to act.

The Administrator has previously advised you that he is undertaking the sale of all the contents of the factory and there is no further role for you to play in that exercise.

Further, your offer to purchase Llwynfryn is rejected.

The Administrator is in the process of appointing an Estate Agent and Llwynfryn will be auctioned as soon as practicable.[42]

(l) by originating motion filed 5 December 2019, the plaintiff sought, among other things, that the defendant be removed as administrator and that Llwynfryn be formally valued and an option to purchase offered to the plaintiff;

(m) by summons filed 8 December 2019 ('summons'), the plaintiff sought orders restraining the defendant from putting Llwynfryn up for auction;

(n) although the precise terms on which the application by summons was settled remain in dispute, there is no doubt that the application was settled between the parties ('agreement') and that, by orders made on 17 December 2019, the summons was dismissed;

(o) the estate subsequently retained Hugh McLean, registered valuer, to prepare a written valuation in respect of Llwynfryn;[43]

(p) in January 2020, the defendant discarded various items at Llwynfryn deemed by him to be 'valueless or in a state of disrepair', including 'boxes of System Dynamics documents comprising designs, manufacturing drawings, operating manuals and maintenance manuals';[44]

(q) Mr McLean prepared a written valuation dated 9 January 2020 ('first McLean valuation'), in which he expressed the following opinion -

The sum of Two million three hundred and fifty thousand dollars ($2,350,000) is a fair and reasonable current market value for the subject property, with the existing improvements in their current condition thereon, as at the 7th January 2020, subject to any limiting conditions and assumptions as stated in this Report.[45]

(r) the plaintiff took issue with the first McLean valuation and correspondence ensued in the course of which he obtained another valuation, prepared by Christine Cox of Opteon ('Cox valuation') on 20 March 2020, which valued Llwynfryn at $1,650,000;[46]

(s) in the meantime, on 7 February 2020, the defendant authorised Michael Bent of Michael J Bent Auctioneers Pty Ltd to sell listed items at the factory and to deposit the proceeds of any sale in the trust account of the lawyers to the landlords of the factory;[47]

(t) on 14 February 2020, the listed items were sold at a public auction held at the factory - which auction realised total proceeds of $21,620;[48]

(u) the costs funded by the auction were greater than the proceeds raised;

(v) on 24 February 2020, the plaintiff wrote to AMS in terms including the following -

...

Finally I was not advised that an auction was going to take place or offered the opportunity to attend the auction. This is despite the fact that your client was on notice of all the relevant issues by reason of my list of issues provided to your client's counsel on 4 February 2020. This, in addition to other matters raised in this and other correspondence, clearly demonstrates a lack of good faith on the part of your client in exercising his duties as administrator of the estate.

Intellectual Property

Please advise what has your client done with the documentation, software and manuals which form the deceased's intellectual property stored in his multiple filing cabinets and on his computers in the factory and at the Balnarring property. Such items were not listed in items for auction, indeed, the report of Michael J Bent dated 26 June 2019 states "We have excluded from our valuation :- stock, work in progress, promotional materials, patents, trademarks, registered designs, intellectual knowledge and possible good will".

These documents were the product of over 50 years of design work by the deceased. He undertook proprietary design and consultancy work for Esso, Toyota, Mitsubishi, CSR, Hilton Manufacturing and many other clients as System Dynamics.

The administrator was notified of the intellectual property and its potential value in my letter of 14 September 2019 (page 2 last paragraph to page 3 first paragraph).

On 21 February 2020, Hilton Manufacturing, contacted me and advised that a hydraulic system that the deceased and I had built needed repair. Hilton Manufacturing also sought to order a new system from System Dynamics Pty Ltd. It can readily be seen that the intellectual property created by the deceased still has value.

If it is the case that the administrator has disposed of or destroyed the deceased's intellectual property, this will be yet another case of the administrator failing to properly secure the property of the estate.[49]

39 From the context generally outlined, it will be evident that from an early time the parties were in dispute concerning an evolving collection of issues. Principally, however, the present dispute came to be directed to -

(a) the factory and certain of its contents, particularly what came broadly to be described as 'intellectual property';

(b) Llwynfryn (as well as its contents; particularly any 'intellectual property'); and

(c) particular acts and omissions of the defendant and whether, consequently, he should be removed from the office of administrator.

40 As I have indicated, the proceeding was commenced by originating motion dated 5 December 2019. It was later ordered that the proceeding continue as if commenced by writ and the parties filed and served pleadings.

41 It is a feature of the various pleadings that the fact of many of the underlying events and correspondence is not in dispute. That said, the parties each tend to have their own points of emphasis or 'spin' in respect of the content and/or significance of many if not most relevant events.

42 By amended statement of claim dated 21 March 2021, the plaintiff advanced a series of allegations in respect of -

(a) steps taken in respect of Llwynfryn, particularly the obtaining of the Kensley valuation in July 2019 (the existence of which, at that time, was not disclosed to the plaintiff by the defendant),[50] the settlement of the summons in December 2019 and the obtaining of the first McLean valuation, which was alleged to be 'so defective it cannot be a valuation for the purposes of the terms of [the will]';[51]

(b) the failure of the defendant to obtain a valuation in respect of a great number of items held at Llwynfryn, including various boxes of 'System Dynamics documents' and the ute as well as the destruction or disposal of such chattels for 'no consideration';[52]

(c) the conduct of the auction relating to the contents of the factory, including the failure of the defendant to accept a prior offer made by the plaintiff as well as the loss of a valuable wind turbine system, a Data General Eclipse industrial computer system and certain factory fittings;[53]

(d) a failure to obtain a valuation in respect of intellectual property contained within a 'large number of diagrams, designs, drawings ... and software and computer code for machinery' created by the deceased and stored at the factory which was said to have been 'disposed of by way of the auction ... for no consideration';[54] and

(e) the obtaining by the defendant of finance to pay out the debts of the estate at a higher rate of interest than would have been available if he had accepted an offer made by the plaintiff.[55]

43 Broadly speaking, the steps taken in respect of Llwynfryn and the ute were alleged by the plaintiff to have been 'in flagrant disregard' of the terms of the will.

44 The plaintiff also alleged that the steps taken in respect of the various chattels and the offer of finance amounted to a failure of the defendant to call in and protect assets of the estate, negligence and/or a breach of trust.

45 In that regard, the plaintiff sought, among other things, the removal of the defendant as administrator and a repayment by the defendant to the estate in respect of the losses suffered.

46 For his part, the defendant relevantly responded to the effect that -

(a) albeit that he had obtained the Kensley valuation, he believed the market value of Llwynfryn at the date of death of the deceased to have been $2,250,000 'taking into account the intrinsic value of the property by paddock division';[56]

(b) in settlement of the summons the parties had agreed upon a protocol for the sale of Llwynfryn, the terms of which are set out in Other Matters recorded in connection with the orders of the Court made on 17 December 2019;[57]

(c) the first McLean valuation was not 'defective';[58]

(d) albeit that he did not admit the allegations made in respect of chattels at Llwynfryn, in January 2020 certain items deemed to be 'valueless or in a state of disrepair or decay' were discarded in a bin, particularly 'Systems Dynamic documents' said to have been 'old, in varying states of disrepair and decay';[59]

(e) the ute was at Llwynfryn, albeit that a solicitor's letter, during a period in which the plaintiff was represented, was said to suggest that it had been disassembled and needed to be towed away to the tip. The defendant contended that the ute had been sold to 'Atlas Auto Pty Ltd on 7 January 2020 for $1';[60]

(f) in respect of the factory -

(i) the auctioneer, Mr Bent, had been engaged by the defendant 'in good faith to auction the chattels'; and

(ii) there had been no wind turbine system or 'complete and working Data General Eclipse Industrial system' on or after the date of death of the deceased;[61]

(g) more broadly, the defendant contended that all chattels and other property complained of, including the alleged intellectual property, was of 'no value' and otherwise that -

(i) the lessors had re-entered the factory and given notice that they intended to sell the plant and equipment to satisfy the arrears of rent, which were then at $9,035.04;

(ii) the plaintiff had estimated the best price for those contents at $6,205; and

(iii) the defendant had accepted the lessors' offer to accept the factory contents in lieu of the arrears of rent.

47 Later, during a period in which the plaintiff was self-represented, he replied. Among other things, he contended that -

(a) the defendant had not disclosed the Kensley valuation and had put a 'magnified figure' of $2,250,000 in the inventory of assets and liabilities so as 'to entice the plaintiff into paying a higher than market price' for Llwynfryn 'and/or to force an auction';

(b) records suggest that the ute had been given to Atlas Auto Pty Ltd free of charge; and

(c) the wind turbine system was partially shown in photographs that had been taken by the auctioneer, Mr Bent.

48 In that context, various interlocutory issues later arose, including in respect of compliance with orders, the defendant's discovery and subpoenas.

49 The plaintiff issued more than one summons, including a summons dated 1 February 2022 in respect of the allegedly neglected condition of Llwynfryn. That application was determined on the papers by McMillan J. Her Honour dismissed the application and, in that connection, stated -

The plaintiff's application also fails to take into consideration that the Balnarring property [Llwynfryn] forms part of the trust established by the deceased's will. The principal issue of whether the purpose trust in the will is effective to any extent as a valid charitable trust must be determined before the plaintiff's interest in the Balnarring property can be determined. If the trust is effective to any extent, neither the plaintiff, the defendant nor the deceased's brother will have an interest in the Balnarring property or any proceeds from the sale of the property, until the vesting day defined in the trust arrives or until it is conclusively determined that the trust is not a valid trust.[62]

50 What her Honour described as the 'principal issue' came to be determined by other events. In particular, the parties served a further round of pleadings that, in many respects, further articulated aspects of the claims and defences earlier pleaded and, in the case of the plaintiff, articulated certain further claims.

51 In that regard, by a 'further claims document' dated 6 June 2023, the plaintiff, who by that time was again represented, among other things -

(a) further articulated his claims in respect of the agreement relating to the dismissal of the summons on 17 December 2019, particularly alleging the breach by the defendant of express or implied terms; alternatively, a breach of the 'powers or discretions conferred upon him as Trustee';[63]

(b) contended that the defendant had waived or disclaimed and therefore should be precluded from exercising any option to purchase Llwynfryn under the will or the agreement;[64]

(c) contended that the first McLean valuation was 'void' and that the plaintiff therefore should be offered an option to purchase Llwynfryn at 'the market value at or around the time of vesting'; alternatively, equitable compensation;[65]

(d) contended that if the first McLean valuation was 'valid', the defendant had nonetheless breached the terms of the will in various respects and the plaintiff should be granted the opportunity to purchase Llwynfryn at the value stated in the first McLean valuation; alternatively, equitable compensation;[66]

(e) further articulated his claims in respect of the 'intellectual property', particularly alleging that the defendant failed in his duty as administrator to 'call in and protect the assets of the Estate'; alternatively, that he 'acted negligently' as administrator;[67]

(f) contended that in borrowing $300,000 from the Bank of Melbourne in his personal capacity and causing the estate to pay 'all of the principal and interest repayments that were required as part of the defendant's personal loan obligations', the defendant had used his position as administrator to obtain an unauthorised benefit and concealed that from the plaintiff as beneficiary;[68] and

(g) much more fully articulated his various claims for relief, including a contention that the value of the lost intellectual property was $2,528,000.[69]

(a) the defendant admitted that he was not in a financial position to and did not want to exercise an option to purchase Llwynfryn at 'what he believed to be its true market price' and contended that 'it would have been an impermissible conflict of interest' for him to exercise an option to purchase Llwynfryn at the value placed on it by Mr Kensley when the defendant 'believed [that] was below its true market value';[70]

(b) in that regard, the defendant contended that the value placed on Llwynfryn by Mr Kensley was 'unclear' and 'did not properly consider the possibility of subdivision' and so was 'at a value below the true market price';[71]

(c) the defendant also contended that he had not provided the Kensley valuation to the plaintiff 'as it did not, in his belief, reflect a true market value'[72] and that any such failure did not constitute any breach of his duties as trustee;[73]

(d) as to the plaintiff's claims in respect of an option to purchase Llwynfryn, among other things, the defendant contended that -

(i) by a letter dated 6 November 2019 he had offered the plaintiff the opportunity to state whether he wished to purchase Llwynfryn at a value placed upon it by a valuer;

(ii) the plaintiff had agreed to the orders made on 17 December 2019 and thereby agreed to the 'mechanism' by which such a valuation would be obtained;

(iii) the plaintiff had agreed to the appointment of Mr McLean to value Llwynfryn;

(iv) the plaintiff had declined to purchase Llwynfryn at the value determined by Mr McLean; and

(v) accordingly, the plaintiff had been given an opportunity to exercise the option in clause (e) of the will and so had not suffered any loss;[74]

(e) as to the plaintiff's claims in respect of the agreement, the defendant contended that the terms of an offer made in a letter dated 13 December 2019 were 'superseded' by the agreement of the plaintiff and defendant to 'the terms of the 17 December 2019 consent orders';[75]

(f) as to the claims made in respect of Mr McLean, the defendant -

(i) admitted that he did not collaborate with the plaintiff in giving instructions to Mr McLean;

(ii) admitted that he did not inform the plaintiff of all instructions and information given to Mr McLean;

(iii) admitted that he did not permit the plaintiff to provide his own instructions and information to Mr McLean;

(iv) admitted that he provided instructions that required that Mr McLean not consult with the plaintiff;

(v) contended, however, that the orders made by the Court on 17 December 2019 did not require him to do any of the steps listed at (i) to (iv) above;[76]

(vi) contended that his obtaining of a valuation from Mr McLean did not involve any breach by him of his duties as trustee[77] and that the first McLean valuation 'in fact determined the value of [Llwynfryn] as at the vesting day';[78]

(vii) contended that the plaintiff ought not to be permitted to rely upon his refusal to accept the first McLean valuation and subsequent delay and to now purchase Llwynfryn at its market value as at the vesting day;[79] and

(viii) contended that by letter dated 10 January 2020 and an email dated 15 January 2020, the plaintiff had been offered an option to purchase Llwynfryn;[80]

(g) the defendant admitted that he had been obliged to exercise the powers and discretions conferred upon him as trustee in good faith, for the purposes for which such power was given and not so as to accomplish any ulterior purpose;[81]

(h) the defendant contended that whilst he wished to sell Llwynfryn by public auction, he was willing to consent to the plaintiff purchasing it at 'its current market value';[82]

(i) as to the claim in respect of intellectual property, the defendant -

(i) did not admit the existence of any intellectual property;[83]

(ii) contended that he had not been aware of any intellectual property;[84]

(iii) contended that the plaintiff had not alerted him or the named executors to the existence of any intellectual property;[85]

(iv) contended that the plaintiff had informed the defendant that the contents of the factory had no real value;[86]

(v) contended that he had had no reason to inquire of the plaintiff as to whether there was any intellectual property or its value 'as the deceased [had] said he had little or no contact with the plaintiff for many years before his death';[87]

(vi) admitted that Mr Bent had not been expressly authorised to auction any intellectual property as none had been known to the defendant;[88]

(vii) admitted that he had considered whether the deceased might have had any intellectual property, and had searched an IPA Register, but found nothing registered in the name of the deceased;[89]

(viii) admitted that the landlords of the factory had instructed Mr Bent to provide a 'clean factory';[90]

(ix) contended that as the landlords intended to dispose of goods, both the plaintiff and defendant could be 'presumed' to have known that the landlords would require a 'clean factory';[91] and

(x) contended that the plaintiff had been asked to remove any items of his own from the factory, been referred to the website of the auctioneer and been'capable of making enquiries for himself about the date of the auction';[92]

(j) the defendant contended that the alleged 'financial arrangements' by which he took a loan in the amount of $300,000 had resulted in 'no benefit to the defendant, nor loss to the estate';[93] and

(k) the defendant denied all of the plaintiff's claims for relief.[94]

53 In reply, the plaintiff addressed various contentions of the defendant. In particular, the plaintiff averred that -

(a) he had never been given an opportunity to exercise the option given under clause (e) of the will;[95]

(b) Mr McLean had at all material times been appropriately qualified to give an opinion as a valuer;[96]

(c) the defendant had not ever offered to the plaintiff an option to purchase Llwynfryn at the valuation stated by Mr McLean;[97] and

(d) when he had contacted the solicitors for the landlords in connection with the contents of the factory, they had responded to the effect that, among other things, they would 'cease further correspondence' and had referred him to the solicitors for the defendant.[98]

54 I should add that as a consequence of developments late in the trial, the plaintiff sought more fully to articulate and in some respects expand upon his claims in connection with the first McLean valuation. In particular -

(a) the plaintiff alleged further implied terms in the agreement as well as further duties upon the defendant as trustee which, he said, had been breached;

(b) the plaintiff undertook a detailed critique of the methods by which, it was said, Mr McLean had performed the first McLean valuation and so, it was contended, the first McLean valuation was and is 'void and of no effect'; and

(c) 'adopting the usual and most appropriate valuation methodology', the plaintiff contended that the value of Llwynfryn 'on or within a reasonable time of the vesting day' had been $1,850,000.

55 For his part, the defendant formally resisted the granting of any leave to the plaintiff to rely upon those allegations. That said, the oral submissions of senior counsel for the defendant did not expand upon that resistance and advanced submissions in a manner that would seek to answer any and all such allegations against him.

56 In the circumstances, I would grant leave to the plaintiff to rely upon the further allegations articulated in his document entitled 'plaintiff's additional and alternative claims arising from the provision at trial [of] Mr McLean's working documents'.

57 In that context, the substance of the claims made by the plaintiff against the defendant came to be in some ways refined and in other ways expanded during the course of the trial.

58 It is, however, presently sufficient to say that in the course of written closing submissions and final addresses, the issues broadly identified as being in dispute were -

(a) whether the defendant had breached his duties as administrator in causing any intellectual property of the estate to be destroyed;

(b) whether the defendant had breached the agreement and/or the terms of the will and his duties as administrator in respect of the valuation and sale of Llwynfryn; and

(c) whether, for those and other reasons, the defendant should be removed and replaced by an independent administrator.

59 The parties were agreed that an administrator and trustee of an estate -

(a) has a paramount duty to observe the terms of the will;

(b) has power and a duty to preserve the assets of the estate; and

(c) owes a duty to act as an ordinary prudent businessperson as if the assets of the estate were his or her own and to exercise his or her best skill and judgement.

60 When a trustee is required to exercise a discretionary trust power, he or she must exercise that discretion in good faith, upon real and genuine consideration and in accordance with the purposes for which the discretion was conferred.

61 A contract is made when, viewed as a whole and objectively from the point of view of a reasonable person on both sides, dealings show a concluded bargain.[99]

62 In the present case, argument concerning the point of time at which agreement was made to settle the dispute presented by the summons, and therefore the terms on which the agreement was made, was directed to the 'categories' identified and explained as follows by Dixon CJ, McTiernan and Kitto JJ in Masters v Cameron -

Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three classes. It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract.[100]

63 Thereafter, their Honours explained that a binding contract is made in the first two cases, or categories, but not in the third. In that regard -

(a) in the first category, a contract binding the parties is made 'at once' whether 'the contemplated formal document comes into existence or not';

(b) in the second category there is a contract binding the parties to 'join in bringing the formal contract into existence and then to carry it into execution'; and

(c) the third category is 'fundamentally different', in that 'the terms of agreement are not intended to have, and therefore do not have, any binding effect of their own'.[101]

64 In respect of the third category, their Honours explained further, as follows -

The parties may have so provided either because they have dealt only with major matters and contemplate that others will or may be regulated by provisions to be introduced into the formal document, as in Summer-greene v Parker or simply because they wish to reserve to themselves a right to withdraw at any time until the formal document is signed. These possibilities were both referred to in Rossiter v Miller. Lord O'Hagan said: "Undoubtedly, if any prospective contract, involving the possibility of new terms, or the modification of those already discussed, remains to be adopted, matters must be taken to be still in a train of negotiation, and a dissatisfied party may refuse to proceed. But when an agreement embracing all the particulars essential for finality and completeness, even though it may be desired to reduce it to shape by a solicitor, is such that those particulars must remain unchanged, it is not, in my mind, less coercive because of the technical formality which remains to be made". And Lord Blackburn said: "parties often do enter into a negotiation meaning that, when they have (or think they have) come to one mind, the result shall be put into formal shape, and then (if on seeing the result in that shape they find they are agreed) signed and made binding; but that each party is to reserve to himself the right to retire from the contract, if, on looking at the formal contract, he finds that though it may represent what he said, it does not represent that he meant to say. Whenever, on the true construction of the evidence, this appears to be the intention, I think that the parties ought not to be held bound till they have executed the formal agreement". So, as Parker J said in Von Hatzfeldt-Wildenburg v Alexander in such a case there is no enforceable contract, either because the condition is unfulfilled or because the law does not recognize a contract to enter into a contract.[102]

65 As their Honours thereafter explained, the question depends upon the intention disclosed by the language used by the parties.

66 A term may be implied into a contract if necessary for its reasonable or effective operation.[103]

67 As a general rule, each party to a contract agrees, by implication, to do all things necessary to enable the other party to have the benefit of the contract.[104]

68 A duty of good faith and reasonableness may be implied into a contract.[105] Ordinarily, such a term imposes an obligation to act honestly and with fidelity to the bargain and not to undermine the bargain entered into or the substance of the contractual benefit bargained for.[106]

69 In respect of the claim directed to intellectual property, the plaintiff bears the burden of proving that the estate has suffered loss and damage as a consequence of some breach by the defendant as administrator.

70 In cases in which a plaintiff cannot adduce precise evidence of what has been lost, estimation or guesswork may be necessary in order to assess the damages to be allowed.[107]

71 In that connection, the plaintiff sought to rely upon authorities relating to the destruction of documents[108] and, in particular, relied upon what was described in argument as the 'classic statement' from The Ophelia[109] quoted with evident approval by Dixon CJ, McTiernan and Williams JJ in Allen v Tobias -

If any one by a deliberate act destroys a document which, according to what its contents may have been, would have told strongly either for him or against him, the strongest possible presumption arises that if it had been produced it would have told against him; and even if the document is destroyed by his own act, but under circumstances in which the intention to destroy evidence may fairly be considered rebutted, still he has to suffer. He is in the position that he is without the corroboration which might have been expected in his case.[110]

72 In that connection, both parties referred broadly to ss 89A to 89C of the Evidence (Miscellaneous Provisions) Act 1958 (Vic), which provide as follows -

For the purposes of this Division, a document is unavailable in a civil proceeding if -

(a) the document is, or has been but is no longer, in the possession, custody or power of a party to the civil proceeding; and

(b) the document has been destroyed, disposed of, lost, concealed or rendered illegible, undecipherable or incapable of identification (whether before or after the commencement of the proceeding).

(1) If, in a civil proceeding, it appears to the court that -

(a) a document is unavailable; and

(b) no reproduction of the document is available in place of the original document; and

(c) the unavailability of the document is likely to cause unfairness to a party to the proceeding -

the court, on its own motion or on the application of a party, may make any ruling or order that the court considers necessary to ensure fairness to all parties to the proceeding, having regard to the matters set out in section 89C.

(2) Without limiting subsection (1), a ruling or order may be -

(a) that an adverse inference will be drawn from the unavailability of the document;

(b) that a fact in issue between the parties be presumed to be true in the absence of evidence to the contrary;

(c) that certain evidence not be adduced;

(d) that all or part of a defence or statement of claim be struck out;

(e) that the evidential burden of proof be reversed in relation to a fact in issue.

Before making an order under section 89B, the court must have regard to -

(a) the circumstances in which the document became unavailable; and

(b) the impact of the unavailability of the document on the proceeding, including whether the unavailability of the document will adversely affect the ability of a party to prove its case or make a full defence; and

(c) any other matter that the court considers relevant.

73 In respect of removal of a trustee, in Miller v Cameron, Dixon J stated -

The jurisdiction to remove a trustee is exercised with a view to the interests of the beneficiaries, to the security of the trust property and to an efficient and satisfactory execution of the trusts and a faithful and sound execution of the powers conferred upon the trustee. In deciding to remove a trustee the Court forms a judgment based upon considerations, possibly large in number and varied in character, which combine to show that the welfare of the beneficiaries is opposed to his continued occupation of the office. Such a judgment must be largely discretionary.[111]

74 Grounds for the removal of a trustee or administrator include -

(a) a lack of impartiality;[112] and

(b) any preference for his or her own interests over those of the beneficiaries.[113]

75 In oral submissions, counsel for the plaintiff referred to authority[114] that, in turn, referred to s 34(1) of the Administration and Probate Act 1958 (Vic). That provision states as follows -

34 Discharge or removal of executor or administrator

(1) Notwithstanding anything contained in any Act where an executor or administrator to whom probate or administration has been granted whether before or after the commencement of this Act or where an administrator who has been appointed under this section or any corresponding previous enactment -

(a) remains out of Victoria for more than two years;

(b) desires to be discharged from his office of executor or administrator; or

(c) after such grant or appointment refuses or is unfit to act in such office or is incapable of acting therein -

the Court upon application in accordance with the Rules of Court may order the discharge or removal of such an executor or administrator and also if the Court thinks fit the appointment of some proper person or trustee company as administrator in place of the executor or administrator so discharged or removed upon such terms and conditions as the Court thinks fit; and may make all necessary orders for vesting the estate in the new administrator and as to accounts and such order as to costs as the Court thinks fit.

D. The deceased, the defendant, the plaintiff and related witnesses

76 The plaintiff and defendant were witnesses of great significance across a range of issues in the case.

77 The credibility and reliability of each of them was raised in the respective written submissions and was relevant to many of the contentions advanced in final address; although it was not a focal point of either address. In a real sense, however, the credit and reliability of the plaintiff and defendant is directly or indirectly relevant to the evidence bearing upon almost every area of difference between them.

78 That which follows takes account of the whole of those areas of difference, but does so by reference to specific aspects of the evidence. The fact that particular evidence is not referred to in the following analysis does not mean that it has been overlooked. There are, however, limits to the extent to which reasoning of the present kind can be grounded in every area of the evidence of the witnesses concerned.[115]

79 During the trial, it was plain that the actions and statements of the plaintiff and defendant had been greatly influenced by their differing perspectives and antipathetic positions. That influence seemed direct, in that they have been bitterly estranged since falling out in 2014; as well as indirect, in that they are also in opposing factions of the family.

80 In respect of the latter, I have noted that the plaintiff seemed allied with Carole. For his part, the defendant appeared closer to Rheinallt, as well as to his wife, Michelle, and father in law, Mr Marchio. The only witness who claimed to be able to speak and deal with both brothers was Ms Millane.

(a) both brothers claimed to have had a significant connection with the deceased prior to his passing;

(b) the defendant, however, generally sought to suggest that the plaintiff had been estranged from the deceased for several years prior to his passing; and

(c) the plaintiff denied any such suggestion.

82 In the midst of the tension sponsored by the circumstances outlined above, the deceased emerged as an eccentric and complicated figure.

83 He was plainly a brilliant inventor who appears to have been devoted to his work in robotics.[116]

84 In that regard, at the time of the deceased's passing in June 2019, the rent for the factory seems to have been paid up until about May 2019.[117] That suggests that even in the midst of his deteriorating health,[118] the recent deregistration of System Dynamics and some degree of personal financial stress, the deceased had optimistically prioritised the payment of rent on the factory.

85 Consistent with the stereotype of a brilliant but eccentric inventor, a video of the interior of the factory taken shortly after his passing reveals a ramshackle arrangement of items, equipment and projects in various apparent states of completion.[119] A photograph of the factory office also shows a large quantity of boxes, folders and papers piled on a desk adjacent to what was referred to as the 'A1 filing cabinet'.[120]

86 The defendant and several of his witnesses sought to emphasise the presence of mess and dust in the factory. Mr Marchio took the video on about 17 June 2019, which is only days after the deceased's passing. The video certainly shows mess and dust, particularly in the working areas.[121] However, the video shows the office area very briefly.[122] It is not possible to tell whether, at that time, the office area was as dusty as the working area, although it was certainly messy.

87 The photograph of the office area was apparently taken by Mr Bent.[123] It is not clear exactly when the photograph was taken, although it was said by senior counsel for the defendant to have been taken by Mr Bent after a 'clean up'.[124] The photograph seems to show auction related stickers on the drawing board, filing cabinet and the 'A1 filing cabinet'.[125] The defendant's spreadsheet, which is a contemporaneous record of his actions in respect to the estate, shows Mr Bent to have attended the factory for significant periods on 21 and 26 June 2019.[126] Mr Bent's auction of the factory contents took place on 14 February 2020.

88 In the photograph, the condition of the office area is in some ways different to that shown fleetingly in the video. No attention was given to that difference during the trial. In the photograph, no dust can distinctly be seen and the table in the foreground appears to be cleaner than at the time at which the video was taken.

89 I would conclude that there probably was some dust in the factory office at the time of the deceased's passing, although the contents of the office may well have been to some extent re-arranged or tidied by the time that Mr Bent's photograph was taken.

90 In any event, the defendant and other witnesses to whom I have referred tended to emphasise the mess and dust at the factory as if it had accumulated during an extended period in which the factory and all of its contents were unused. That may well explain such dust as appears; however, most of the mess is likely to have been created in the course of the deceased's work during his lifetime. Some of it could have been created by the plaintiff, but I would have thought that the major contributor to the mess in the factory was the deceased. After all, it was his factory.

91 In that context, the really striking thing about the video, and photograph, is how much they reveal a work space resembling a home workshop or the garage of someone who must have devoted every available moment to pondering and tinkering with projects of invention. In a sense, the mess revealed that the person who created it must have been largely oblivious to it; as well as to any modern notions of occupational health and safety. The mess is consistent with a person who was, for the most part, totally engrossed in his passion for invention and from which he derived a significant part of his personal identity.

92 Similarly consistent with the stereotype, such financial records of System Dynamics as have been able to be retrieved reveal the business to have generated earnings of a modest kind in the years leading up to 2016; and there are no records of any earnings generated between 2016 and 2019. The evidence also suggested that the deceased had not been very focussed on money and had at times performed work for practically nothing or very little.

93 In that regard, the evidence suggested that in and after about 2017 the deceased had been earning little or nothing in the way of income and, in the end, had been living off his mortgage and credit card.

94 The deceased seems also to have had a great passion for animals, particularly in and around Llwynfryn. In that regard, I have earlier extracted the relevant part of the schedule to the will in which the deceased expressed a wish that, as far as practicable, Llwynfryn be used and managed by the defendant as an 'animal sanctuary'.

95 Albeit that the deceased plainly had a deep passion for his work, as well as a great affection for animals, that sense of passion and affection does not seem to have extended at all times to all members of what might broadly be described as his family.

96 In particular, I have already referred to the evidence concerning his antipathy towards Carole. In that connection, in the will made in May 2013 the deceased indicated his wish that Carole should be excluded from any involvement in, among other things, the proposed 'animal sanctuary' at Llwynfryn.

97 That said, it seemed not ultimately to have been in dispute that the deceased subsequently celebrated Christmas with Carole, as well as with the plaintiff.[127] However, as I have earlier noted, after the passing of the deceased, and in connection with the proposed funeral, the defendant said that the deceased 'despised [Carole] intensely'.

98 As I have noted, the defendant said that for some years prior to his passing the deceased had been essentially estranged from the plaintiff. The defendant also sought to suggest that the plaintiff had not worked at all - including with the deceased - for many years prior to June 2019.

99 In his written outline of evidence, which was accepted as his evidence in chief, the defendant stated relevantly as follows -

Simon did not know James to work in the deceased's employment after 2016. There are letters written by the deceased in 2013 which show that James and Henry did not get along in 2013. ... Their relationship was sporadic in the years after that. In 2013 there was no contact between them. James was invited to spend time with the deceased at Simon's home at Christmas time, but James did not come. James and Henry then reunited in early 2014 and went overseas for about 6 weeks in April/May 2014. James was a groomsman at Simon and Michelle's wedding in 2014. Following the wedding, the deceased and James had another falling out and based on what the deceased said at the time, Simon believes that they barely spoke until around 2015. The deceased spent Christmas with James and Carole Dunn at Carole's property in Kinglake in 2015. However, not long after that, based on what the deceased said at the time, Simon believes that James and the deceased fell out again and reverted back to their 2013 position. They were effectively estranged. They remained that way until the day he died. The deceased said to Simon that [he] was not sure that he wanted to see James before he passed. James had not visited him in his illness or in hospital. Henry instructed Simon not to inform James as he did not want to see him. Days prior to his eventual death, Simon asked the deceased if he wanted James to visit, the deceased said "I'm not sure". Simon said "What about if James comes, but not (Carole Dunn)". Henry agreed. Simon got word to James via their mutual friend Sian Milane and James saw the deceased in his last few days.[128]

100 In that connection, in the course of his oral evidence, the defendant stated that -

(a) he disagreed that the plaintiff had worked with the deceased in his business after 2008;[129]

(b) the deceased had fallen out with the plaintiff in 2016 after telling him that he was going to close down the factory;[130]

(c) he had been at the factory visiting his stepfather after 2016 (albeit that his written outline of evidence stated that when he visited the factory on 17 June 2019 it was the 'first time' that he had 'physically entered the factory since around 2016');[131]

(d) he had visited the factory on 17 and 26 June 2019 with Mr Marchio (albeit that Mr Marchio's evidence was consistent with only one visit to the factory by him in that time; with Mr Marchio undertaking a later visit to the factory at the time of the auction of its contents in February 2020);[132]

(e) the deceased had wanted the plaintiff 'to work' and 'to have purpose' and the defendant's position was 'no different';[133]

(f) he had seen the deceased in hospital 'all the time', 'talked to him every day, every second day' and, when he called him, the defendant asked the deceased whether he had spoken with the plaintiff, to which the deceased replied that he did not want to talk with the plaintiff;[134]

(g) the deceased did 'light work' in 2016, 'very little work' in 2017 and 'no work' in 2018 and 2019 (albeit that the defendant at one point might be thought to have acknowledged that the factory was last used in 2018[135] and also said that he had not attended the factory after 2018 and until the deceased passed in June 2019);[136] and

(h) in his mind, the plaintiff had not been in the factory after 2016 (albeit that he later said that he would not 'really' put the plaintiff in the factory 'in any meaningful way from 2014').[137]

101 It will be evident from that to which I have referred that the defendant was essentially of the view that the plaintiff had not worked with the deceased after about 2008, had fallen out with the deceased in 2013 and on other occasions since and had not been in the factory since 2016 (or, perhaps, 2014).

102 At the same time, the defendant was of the view that the deceased had done little or very little work at the factory in 2016 and 2017 and none thereafter, albeit that the defendant had not personally attended the factory after 2018 and, at one point, acknowledged that the factory had last been used in 2018.

103 Further, much of all of that evidence seemed to be founded in or, at least, significantly influenced by, what the defendant said that he was told by the deceased; although, in respect of the attendance of the deceased at the factory, the defendant also pointed to the deceased's state of health from at least 2016.[138]

104 The most striking feature of much of that evidence was that it was marked by lengthy answers in the nature of deduction and argument. At times, it was interspersed with questions of a somewhat rhetorical kind that were not necessarily responsive to the question asked.

105 For example, in respect of the plaintiff and the factory contents, the defendant said -

James, in my mind, hadn't been in that factory since the argument in 2016. Was James' knowledge and - I don't want to get right back into it again about the sporadic nature of where - when and where James was at the factory, um, but the people I relied upon in respect to the factory included Graham McClure who was dad's friend of 50 years who did very similar work to dad who dad told me to call, um, right towards the end of his death in respect to organising an engineer valuation. Greg Marchio who is an engineer himself, Stevie Pass - I also spoke to bank managers, dad's bank manager, um, which I've described yesterday, accountants, solicitors, um, and further to that, I - I organised dad's funeral, okay? So it was all dad's colleagues that were at the funeral. I had dad's phone next to my bed on charge going all the time. I got two calls. One from Ken Marlow for the jack and one from Graham McClure who rang just to hear dad's voice, and that phone was on for months and months and months.[139]

106 Similarly, in respect of the plaintiff's suggestion that the contents of the factory could be moved to Llwynfryn, the defendant commenced upon a very lengthy answer in the course of which he said -

... my question is, to myself at that time, 'James hasn't worked at dad's for - since 2016.' He hasn't really worked, that I've known of, since probably 2014. And I only say that because he presented full time employment records to VCAT. So I'm running off 2014. But where is his customer list? Where is his - where are his ability to be able to sell this machinery that he's saying? It - it doesn't make any sort of financial sense. And all it seems to do is burden the property and move an issue down to Balnarring, which creates a second issue. And so then you're - you've got a property that has mortgages - encumbered by mortgage, now has, I don't even know, how many tonnes of commercial equipment, sitting in sheds that at some point will need - if you had to sell the property, what do you do with the machines then? Where do they go then? You just - you keep getting stuck. And in dad's lifetime he was resistant to moving them down there. So you can sort of see where it's all going. It doesn't make any sense.[140]

107 In light of the manner in which significant parts of the defendant's oral evidence was given, I doubt that he has any actual as opposed to reconstructed recollections of much of that to which he referred. It will also will be evident that some parts of his evidence were not consistent.

108 There were, however, some even more troubling features of the defendant's evidence that I suspect to have been a product of the reconstructive processes to which I have referred together with a palpably rigid dismissiveness of any contrary position.

109 For example, notwithstanding his historical lack of any involvement in the business of the deceased, the defendant was peremptorily dismissive of the evidence of both Mr Hartley and Mr Scott concerning their business dealings with the deceased.

110 As a party, the defendant had observed the evidence of Mr Hartley and Mr Scott, and gave his own evidence later in the trial. Both witnesses had given their evidence in a manner that can only be described as wholly sensible and straightforward.

111 Mr Hartley confirmed that he is the managing director of Hilton Manufacturing Pty Ltd, which is a specialist engineering and original equipment manufacturer with manufacturing plants in Dandenong, Victoria, and Brisbane, Queensland.[141]

112 In his witness outline, which was adopted as his evidence in chief, Mr Hartley stated, among other things -

(a) his late father established Hilton Manufacturing and the deceased had been a business colleague of his father's, although Mr Hartley had met the deceased 'many times';[142]

(b) in respect of the inventions made for Hilton Manufacturing by the deceased -

Harry was very intelligent, and his solution to our various manufacturing needs were first class. The equipment that he made and supplied to us was unique and well ahead of its time. We used to try and make sure that our competitors were not aware that we had it, as it gave us a real competitive advantage.[143]

(c) they never had detailed written contracts - 'he would quote us a price, which was generally accepted, not negotiated, and the deal was then done on a handshake';[144]

(d) the plaintiff was the deceased's son and 'right-hand man' and came to Hilton Manufacturing with the deceased, but also on his own, and dealt more with 'my maintenance managers and production supervisors than he did with me directly';[145]

(e) documents relating to Hilton Manufacturing's equipment such as diagrams, drawings, manuals, software and coding, were valuable to him and he would have been prepared to pay for them, if asked;[146] and

(f) he had not been able to find a replacement company to do what System Dynamics had done for Hilton Manufacturing.[147]

113 In a document attached to his witness outline, Mr Hartley confirmed that Hilton Manufacturing presently requires a new robot polisher - which 'we would have expected System Dynamics to design and manufacture for us' - and that, from 2004, Hilton Manufacturing paid System Dynamics sums totalling approximately $840,000 for 'all machinery, equipment and tooling supplied and produced'.[148]

114 Mr Hartley confirmed and expanded upon parts of the above during his oral evidence. In particular, Mr Hartley said that -

(a) he took over the company from his father in 2005, although his father had continued to attend as a mentor to senior managers until about 2016;[149]

(b) from 2005 he had taken on 'a fair bit of responsibility' in the relationship and communications with the deceased;[150]

(c) the deceased was 'a bit of an old professor' and a 'brilliant man';[151]

(d) the records of Hilton Manufacturing showed that System Dynamics had invoiced for work in the period 2011 to 2017, although 'they didn't ... on every occasion charge us or invoice us for certain work done';[152]

(e) in that connection, System Dynamics had supplied one piece of equipment in 2017, two in 2016, two in 2015, one in 2014 and three in 2011[153] and Hilton Manufacturing had 11 'bespoke' and 'unique' machines at the Dandenong premises and four at the Brisbane premises;[154]

(f) the 'deals' between Hilton Manufacturing and System Dynamics were 'verbal' or 'handshake deals' made between Mr Hartley's late father and the deceased;[155]

(g) the equipment supplied by System Dynamics required 'preventative maintenance';[156]

(h) the plaintiff had attended the premises of Hilton Manufacturing in connection with maintenance work and the commissioning of equipment[157] - indeed, Mr Hartley said 'James was at our factory a hell of a lot';[158]

(i) the deceased had also attended 'many times' to do maintenance;[159]

(j) he had not heard of Mr Pass;[160] and

(k) in respect of the suggestion that Hilton Manufacturing was now merely 'missing' the 'know how' of the deceased, Mr Hartley said -

... those [lost] documents would have helped us too 'cause our - when you're looking at a bespoke piece of equipment like the data that you had on there, they could refer straight back to these - the sketches that we had on the - the previous maintenance schedule. Without those sketches we've got guys starting from scratch looking at the machine.[161]

115 I note that, in cross-examination, it was not suggested to Mr Hartley that he had not met the deceased 'many times'; nor was he challenged about his preparedness to pay, if asked, for diagrams and the like relating to the inventions installed at Hilton Manufacturing.

116 Notwithstanding all of the above, including his historical lack of involvement in his stepfather's business, in the course of his own evidence the defendant rather bluntly and defiantly said of Mr Hartley '[w]ell, he didn't know Dad'.[162]

117 In respect of Mr Scott, the defendant went further and said that he 'questioned' Mr Scott's evidence, as well as his 'veracity'.[163]

118 In that connection, the defendant said that he had not found Mr Scott's telephone number saved as a contact in a mobile telephone obtained for the deceased in 2019.[164] It was not clear that the deceased had made calls with any regularity using that or any other mobile telephone.[165] In any event, Mr Scott had readily confirmed that he had not had any need to contact the deceased after 2017.[166]

119 In the circumstances, whilst the point concerning the mobile telephone obviously appealed to the defendant, any reliance upon it as a basis for disbelieving Mr Scott's evidence concerning his dealings with the deceased in and prior to 2017 presented as strikingly insubstantial.

120 The other part of the foundation for the defendant's position concerning Mr Scott was said to lie in statements made by the deceased about Mr Scott in documents connected with a dispute between them concerning unpaid invoices which went to VCAT in about 2013 or 2014.

121 In that regard, in a personal letter to Mr Scott dated 7 November 2013, the deceased had, in effect, threatened to sue in respect of money claimed to be owed and, in so doing, referred to having been 'shafted' and accused Mr Scott of lacking 'fundamentals in both [sic] mechanical engineering, pneumatics and business ethics'. In a subsequent letter dated 29 December 2013, the deceased accused Mr Scott of not being 'an honourable person' and having had 'no qualms with cheating people'.[167]

122 In cross-examination, Mr Scott was asked about the VCAT dispute and explained that he and the deceased were both stubborn and that they 'used to have some really good arguments'.[168] In that regard, he spoke of the deceased warmly and said that after the VCAT dispute was over they had gone out for drinks. He said: 'that's the way we did things, yeah, isn't it?'.[169] He also referred to his business with the deceased as having been done 'on a handshake', which he described as the 'old Australian way'. He also said that they would 'work it out in the end'.[170]

123 Later, when taken to the correspondence to which I have referred, Mr Scott acknowledged the language used and said that the deceased 'had no qualms in calling us all names either' and then referred to an occasion on which the two of them had had a 'massive blue in China'. He explained as follows -

We just called each other all kinds of names all the time. It was nothing unusual, that's just - that's the old Australian way, you have a punch up and then you go and have a drink.[171]

124 Mr Scott chuckled, described the deceased as having been 'awesome' and said that his own father had been 'exactly the same'.[172]

125 In my view, the letters to which Mr Scott was taken disclosed a great deal more about the personality of the deceased than they did about Mr Scott. In that regard, I am conscious of the similarity in the forcefulness of language and rather manipulative intent evident in both the 2013 letters and the letters to Mr Scott.[173]

126 That is, the deceased seems to have had a volatile personality and I suspect that his actions and statements were, at times, somewhat performative and pursued in his own perceived self-interest. However, none of that reflects poorly upon Mr Scott, who was impressively frank and direct in his evidence.

127 In any event, it is sufficient to say that the defendant's swipes at Mr Scott presented as unfortunate and misplaced. I should, perhaps, add that in final written submissions senior counsel for the defendant sought to interpret parts of Mr Scott's evidence in a manner favourable to her client, but did not say that he had lacked 'veracity' when giving it.[174]

128 The defendant's swipes at others in the course of his oral evidence presented in a somewhat similar way, particularly his assertions that -

(a) the valuation report of Mr Kensley, certified practising valuer, 'seemed hokey' (which I took to mean 'made up');[175]

(b) the valuation report of Ms Cox, certified practising valuer, 'just looked manufactured';[176] and

(c) the plaintiff's actions from the time that the defendant became administrator were simply to be explained as 'James ... just doing what James wants to do' and 'causing cost to the estate, putting people offside'.[177]

129 In respect of the latter, the defendant said further that -

... what has occurred is the sort of stuff that Dad alluded to in those letters [the 2013 letters] ... , and that is, if James gets involved, it will turn into an unmitigated disaster.[178]

130 I have referred to the 2013 letters and what I consider those letters to disclose concerning the personality and likely behaviour of the deceased. Plainly, their content is critical of the plaintiff. However, it is stretching things well beyond their actual content to say that the deceased was there suggesting that his estate would become 'an unmitigated disaster' if the defendant were to deal in any reasonable way with the plaintiff.

131 In that regard, the defendant seems to have perceived the 2013 letters, his understanding of discussions conducted with the deceased prior to his passing as well as the terms of the will as requiring him to adopt a generally suspicious, critical and punitive stance in respect of his younger brother.[179] That posture is evident in the text messages to which I earlier referred, various parts of the solicitor's correspondence to which I will later come (which was, presumably, written on instructions) as well as in the tone and content of parts of the defendant's oral evidence. In respect of the latter, for example -

(a) as I have earlier noted, the defendant said 'I spoke to dad. ... Dad wanted James to ... work. He wanted him to have purpose. My ... position was no different to dad's';[180]

(b) albeit that the defendant gave evidence of his belief that the plaintiff had not worked with the deceased at the factory since 2016, he also sought to advance doubts that the plaintiff had worked with the deceased at any time after 2008 or 2014;[181]

(c) in respect of a letter dated 24 October 2020, by which the plaintiff had sought to advance a proposal to purchase Llwynfryn, the defendant said -

... what we're seeing here is that ... nothing comes with clean hands, in my opinion; there's always further, um, strings attached that are yet to be worked out. And I'm of the opinion that ... James doesn't have $2m, and I don't believe his house will sell ... or how long it would take to sell to bring that up. ... I was very, very aware of the debts ...[182]

(d) later, the defendant said 'all I saw was conflict and argument in front of me' and 'I had considered purchasing the property [Llwynfryn] myself';[183]

(e) the defendant suggested that, in fact, much of the plaintiff's correspondence had been drafted by Carole;[184]

(f) the defendant had been unwilling to speak with the plaintiff due to potential claims over what might be said;[185]

(g) in respect of the plaintiff's application seeking the defendant's removal as administrator, the defendant said -

... James is not following any sort of process that would allow for clear administration. He's just going off and doing exactly what he wants. ... So here we are.[186]

(h) in respect of the plaintiff's proposal to move the contents of the factory to Llwynfryn, the defendant said -

... having seen and lived next to James' house for 10 years, and seen it in the state that it is, it doesn't embolden me to feel that he is the person to carry out this task.[187]

(i) the defendant also said that even if the proposal had been accepted, 'that bill would then definitely be sent to the estate [by the plaintiff]';[188]

(j) the defendant said that even though he was the administrator, the plaintiff was 'like a wild horse ... he's just gonna do what he's gonna do';[189]

(k) in respect of an incident in which the plaintiff removed a Commodore vehicle and the defendant reported the vehicle to police as stolen, he stated -

... James had just again ... gone into a situation and just helped himself. It doesn't matter that, you know, I am an administrator, he's just not going to respect anything. It does not matter.[190]

(l) later, in respect of other items at Llwynfryn, the defendant said 'Your Honour, I haven't been the one that's been spiriting away items';[191] and

(m) finally, in respect of any value in the deceased's drawings and designs at the factory, the defendant said -

I've heard someone [Mr Scott] come up and provide evidence who was not in my father's phone, who, on VCAT documents, my father has called a liar and a cheat, um, and a plaintiff who's claimed to be working with my dad right through a period of time where Dad was really, really ill. So, in respect to this claim of value, I have questions.[192]

132 As I have indicated, the posture to which I have referred was evident in many parts of the defendant's evidence and I got the impression that the defendant had generally acted in a manner which he considered would in some way bring the plaintiff 'to heel'.

133 I will shortly address the manner in which the plaintiff presented; however, it is presently sufficient to say that he presented as lonely, distressed, somewhat bewildered and with a potential to be querulous and obsessive. That said, it will be evident that I do not consider the plaintiff's behaviour to have warranted the manner in which the defendant seems to have sought to describe and treat him either in his evidence or in his various actions and inactions as administrator.

134 Somewhat in contrast with the unforgiving nature of his various statements and positions adopted in respect of the plaintiff, in the course of his oral evidence the defendant tended to appeal for understanding and/or advance argument of an irrelevant, non-responsive, insubstantial and/or confused kind in respect of any suggested failings of his own, particularly in respect of -

(a) his consideration of the Kensley valuation - which valued Llwynfryn at $1,800,000;[193]

(b) his subsequent identification of the value of Llwynfryn at $2,250,000 in the inventory of assets and liabilities completed in connection with his application seeking to obtain letters of administration with the will annexed;[194]

(c) his failure to disclose the existence of the Kensley valuation to the plaintiff until some point well after the commencement of the present litigation;[195]

(d) his consideration of and failure to respond to the plaintiff's letter dated 14 September 2019 - which referred to the factory contents including 'filing cabinets containing all business and personal records';[196]

(e) his consideration of and failure to respond to the plaintiff's letter dated 24 October 2019 in respect of the factory contents and Llwynfryn;[197]

(f) his assumption of the position of administrator,[198] in respect of which, among other things, the defendant stated -

... I put my application for the letters of administration in. Very shortly after, a caveat was placed on that letters of administration [by the plaintiff]. Um, from my perspective, with all the correspondence that I received from James, it seemed very, very clear that, if I put one foot out of line, there was going to be some sort of application made to either have me removed, say that I've done the wrong thing, um, acted improperly.[199]

(g) his proposal to conduct an 'auction' of Llwynfryn, after which the options provided in the will would be sought to be exercised at the price reached by the final bidder[200] - which proposal had essentially precipitated the application by the plaintiff to the Court seeking relief;[201]

(h) his retention of Mr McLean in order to obtain a valuation of Llwynfryn, in respect of which the letter of instruction from AMS stated -

We would be pleased to provide you with any additional information you may require but we would request that you do not confer or consult with James or Penni (Carole) Dunn and that all communications will either be with Simon Dunn Vaughan or us.[202]

(i) his provision to Mr McLean of a letter from a real estate agent, Holmes & Acreage, expressing a 'belief' that Llwynfryn should be advertised for sale for $2,500,000, but not the Kensley valuation;[203]

(j) the errors in his 'financial affidavits';[204] and

(k) the financial arrangements entered into by him in respect of the mortgage over Llwynfryn.[205]

135 In many parts of the above evidence the defendant had a tendency to fasten upon red herrings and to adopt a rather fatalistic stance as if his various actions and inactions had not contributed at all to the litigation and the overall situation with his brother. In my view, that has not been the case.

136 That said, counsel for the plaintiff submitted that from the deceased's passing the defendant had been intent upon administering the estate for his own benefit.[206] In respect of the defendant's application to be appointed as administrator, counsel also submitted as follows -

The reason that he applied is that he wanted control. He wanted control over James, over Balnarring ['Llwynfryn'] and over the factory and he wanted to do so to extract as much money from James as he could knowing that he didn't want any of those items.[207]

137 Those submissions attribute to the defendant predetermined motivations and calculations of a kind that are considerably darker than I would be prepared to embrace or endorse.

138 In my view, the defendant did not set out with a consciously controlling design in respect of either the estate or the plaintiff. In the period after the deceased's passing, he appears to have been driven primarily by a practical desire to assist in cleaning up the estate and moving on. That desire saw him involve himself with Rheinallt and the various steps identified in the spreadsheet. When Rheinallt and Angharad each renounced their appointment as executor, that same desire, together with his ideas about his discussions with the deceased, the will and the meaning of the 2013 letters, propelled him to apply to become the administrator.[208]

139 In that regard, it seems most likely that the defendant came into the role of administrator with a degree of reluctance and in circumstances in which, for whatever reason, he saw himself as the only appropriate option. That said, I do not accept his evidence to the effect that he had a discussion with the solicitor, Mr Bowlen, in which the latter dismissed the option of having the estate handled by State Trustees.[209] That account emerged at the very end of his evidence under cross-examination and presented as quite improbable. No such discussion is referred to in the defendant's otherwise long and detailed outline of evidence.

140 I consider it to be most likely that when Rheinallt and Angharad actually renounced their appointment, fuelled by his own impulses to clean up the estate as promptly as possible and move on, the defendant came to the view that it was best, in all the circumstances, if he were to assume the position of administrator. In so doing, I tend to think that the defendant considered that when he was in charge the plaintiff would, in effect, 'fall into line'.

141 Thereafter, however, the defendant's critical and punitive impulses in respect of his younger brother seem to have affected the manner in which he approached essentially any issue that arose in connection with the estate. In that regard, his pent up desire to 'clean up' and finalise all aspects of the estate as soon as he possibly could, combined with his dislike, distaste and dismissiveness in respect of his brother, may be seen to explain many of his subsequent actions and inactions.

142 It follows, in my view, that the defendant has lacked balance and judgement in dealing with his brother, administering the estate and giving his evidence. I do not, of course, discount the defendant's obvious affection for his deceased stepfather and, in that connection, the underlying emotion evident at times in his evidence. However, for all of the reasons which I have sought to identify and outline -

(a) the defendant's evidence in respect of the present matter must be approached as broadly unreliable; and

(b) any particular part of the defendant's evidence should be approached with great caution.

143 There is a further and related aspect of the defendant's evidence which should be mentioned; which is that in the course of giving his evidence he broadly sought to emphasise a belief that the evidence of others was or would be generally corroborative of his own, and that, overall, the evidence would stand to confirm the correctness or reasonableness of his actions and inactions, particularly in respect of the contents of the factory.[210]

144 In particular, the defendant referred in a broad way to 'numerous discussions' with Mr McClure, Mr Pass, Mr Bent, Rheinallt and 'engineers' concerning any value in the contents of the factory other than the items sold at auction by Mr Bent. In that regard, he said: 'No one said any value'.[211]

145 Notwithstanding the above, the defendant did not call Rheinallt to give evidence. It was not said that Rheinallt was unable to be called to give evidence via video link from the United Kingdom.

146 More than once, the defendant sought to emphasise that Mr Marchio is 'an engineer'.[212] He also emphasised Mr Marchio's asserted connection with the deceased.[213]

147 In an affidavit prepared prior to trial, the defendant referred to his visit to the factory with Mr Marchio on 17 June 2019 and stated -

... I was accompanied by Greg Marchio (Greg), my father in law, who is a retired engineer. I am informed by him, and believe that, he saw drawings on and in a drawing desk with several compartments which he opened and perused. He has informed me, and I believe that, the drawings did not have an index and were lacking various other useful information. He saw that some had old dates on them. Greg made a video recording of the interior of the factory including its contents ...[214]

148 The defendant thereafter referred to a subsequent visit to the factory with Mr Bent on 26 June 2019. He deposed that Mr Bent made an inventory of the factory contents. As to himself, he deposed as follows -

1. On that day, I spent some time looking around the factory. As to documents I can say the following:
   1. The deceased had about a dozen folders in various places around the factory. (There may have been a few more or less, up to 15 of them. For reasons which ought to be apparent from what I describe below, I did not make an inventory of them).
   2. I was familiar with some of the folders as I had seen them whilst the deceased was alive, but I was not familiar with all of them.

3. I looked in the folders and saw that they consisted of:-

1. product catalogues, marketing material for products, and flyers with information about various product lines of various sorts (for example I recall there was one folder of 'Festo' products catalogues. It appeared that the deceased, when he obtained product information or catalogues, put it in a folder, with the most recent one on top of the older ones). Various folders appeared to have product catalogues from various providers.
2. magazines and articles from magazines about various products
3. magazines about cars and planes (he owned a plane at one stage). They appeared to me to be old.
   1. The folders were not stored in any one place in particular. They were all covered in dust.
   2. There was a pile of papers at the window in the area of the deceased's office. I had a look through that pile of paper. What I saw were documents of the same type as I have described above - magazines, marketing material and the like. There were also what appeared to be various notes made by the deceased. It appeared that the deceased did not throw away anything and there were pieces of paper with things written on them such as shopping lists or reminders to himself. There were also printouts of old emails.
   3. There were some old books of which I was aware that the deceased had been collecting on various engineering topics since 1968. They were in very poor condition and were not salvageable.
   4. There were some loose papers on the boot of one of the cars. I don't now recall what they were but I have seen a piece of video which seems to show that they were bills.
   5. There were 2 photographs in frames of James and myself when we were very young children at the factory. I took [them] with me and I retain them in my possession.
4. I am not aware of any other documents, books or papers being at the factory.[215]

149 It is striking that, despite its very great detail, the above account includes no mention of drawings, designs or the like. Perhaps the defendant would say that he had already mentioned such documents, albeit briefly, in connection with his earlier visit in the company of Mr Marchio.

150 In any event, it is not obvious why it should be that the defendant would consider it necessary to have assessed documents himself, and in such detail, only a few days after attending the factory with Mr Marchio, and when he was otherwise at pains to emphasise that he had then been reassured by the presence of an engineer such as Mr Marchio. I cannot accept that evidence.

151 Notwithstanding all of the above, in his oral evidence the defendant sought to distance himself from whatever had been done by Mr Marchio in respect of the drawings and designs.

152 In that regard, he initially denied having seen any drawings or design documents and said that while he had been standing near Mr Marchio in the factory office, Mr Marchio was 'the one with the expertise' and had been 'doing his thing' while the defendant had been doing 'my thing'.[216] In that connection, the defendant said that he had been looking at 'the bookshelves and stuff' and had tried the password to a computer. It was only later, when pressed, that he acknowledged that he had seen the documents that Mr Marchio was looking at.[217]

153 Much later, in re-examination, the defendant was asked about the 'A1 filing cabinet' and said that he 'glanced at it'. When asked about what Mr Marchio said to him about what was in the A1 filing cabinet, the defendant said -

... he didn't raise anything with me, ... other than, um - what - the comments I was hearing is, 'Geez, there's a lot of dirt. There's a lot of rat droppings. There's a lot of - yeah'. And he goes, 'It looks empty. It looks like it hasn't been used this ... place.'[218]

154 The differences in emphasis between the written and oral evidence of the defendant will be obvious enough.

155 In any event, to the extent that the defendant ultimately sought to rely upon the 'expertise' and investigations conducted by Mr Marchio, the evidence of Mr Marchio suggested that it was misplaced. In that regard -

(a) Mr Marchio confirmed that he was a 'retired mechanical engineer'[219] and later referred to his certification as an auditor for 'Quality Safety and Environmental Systems'[220] - none of which presented as closely related to the specific expertise of the deceased;[221]

(b) notwithstanding the asserted connection between Mr Marchio and the deceased, it was evident that Mr Marchio had not been to the factory during the deceased's lifetime;[222]

(c) perhaps understandably, in light of his qualifications and experience, Mr Marchio seemed distracted by whether there was 'orderly storage' and 'operational manuals' at the factory[223] - which did not present as being to the point in light of the kind of premises that it seems really to have been;

(d) further, observations of that kind seemed to be behind Mr Marchio's broad and repeated assertions that, for example, 'no-one in their right mind would buy anything from a factory that looked like that' and there was 'no value in the drawings';[224]

(e) to the extent that Mr Marchio looked at the drawings in the 'A1 filing cabinet', he did not recognise any of the customer names on the drawings and did not look in the bottom drawer of the cabinet where the index to the drawings was said by the plaintiff to have been kept;[225]

(f) in respect of copyright, Mr Marchio stated incorrectly that 'everything died when Harry died';[226]

(g) Mr Marchio expressed the opinion that no one had been working at the factory 'since 2011'[227] - albeit that the defendant himself acknowledged that the deceased had been working in the factory up until 2016; and

(h) Mr Marchio also took a swipe at the plaintiff for, he said, not having had 'a job since 2011'.[228]

156 In that regard, somewhat like the defendant himself, Mr Marchio presented as defensive and argumentative. In my view, his evidence must be approached with very great caution.

157 In that context, it was not clear whether Mr Marchio's evidence to the effect that there was 'no value in the drawings' had been something that was in his mind at the time when he was at the factory with the defendant, or a view formed later.

158 Further, Mr Marchio did not give specific evidence that he had advised the defendant that there was 'no value in the drawings' at any time prior to the auction of the factory contents in February 2020.

159 For completeness, I should say that Mr Marchio's examination of any designs, drawings and documents on the occasion when he visited the factory and recorded the video seems likely to have been cursory, at best.

160 As I have indicated, in his oral evidence Mr Marchio seemed preoccupied with the mess and dust at the factory. In the circumstances, it seems doubtful that he would have been inclined to examine the contents of the 'A1 filing cabinet' or any designs or drawings in any detail, and certainly not in a manner that could have properly equipped him to form a fair conclusion concerning their overall contents, character and whether any of them could have any value.

161 Further, as I have noted, the defendant's affidavit records that Mr Marchio's visit to the factory occurred on 17 June 2019.[229] In that regard, the defendant's contemporaneous spreadsheet records the visit as having occupied a total of 40 minutes. Thirty minutes of that is attributed to the replacement of the lock on the factory door and another five minutes is attributed to a discussion with the agent for the factory landlords concerning outstanding rent. The remaining five minutes is attributed to what is described as 'pack down factory' and, seemingly, making a later arrangement to meet Mr Bent. No time is attributed to any consideration of designs and drawings.[230]

162 In addition, the video taken by Mr Marchio on that occasion is 1 minute and 31 seconds in length. As I have noted, the factory office is shown very fleetingly; perhaps for less than a second. In that glimpse, the defendant is shown with his hands in his pockets glancing around the office.[231]

163 In light of all of the above, I do not accept that any examination of the designs, drawings and the like undertaken by Mr Marchio on the occasion of the video could reasonably have been relied upon in support of any conclusions to the effect that -

(a) the whole or even the majority of the designs and drawings held at the factory were incomplete and unsatisfactory;

(b) all or most of that material was worthless.

164 Mr McClure confirmed that he was a 'retired plant and equipment valuer' and, prior to that, had been 'in engineering for ... 20-odd, 30 years'.[232]

165 Mr McClure was much less argumentative and defensive of the defendant than Mr Marchio. Among other things, Mr McClure referred to and acknowledged -

(a) the deceased's work for Hilton Manufacturing;[233]

(b) the deceased's talents;[234]

(c) the importance of design drawings;[235]

(d) that the plaintiff had been 'machining, drilling and making little bits' (presumably at the factory);[236] and

(e) that, in 2018, he had been urging the deceased to 'sell up' the factory 'because of his health'.[237]

166 It follows that considerably less concern arises in connection with the evidence of Mr McClure than that of the defendant or Mr Marchio.

167 That said, Mr McClure's evidence was marked by a degree of potential misapprehension concerning the ownership of designs.[238]

168 In re-examination, Mr McClure confirmed that after the passing of the deceased he had not said anything to the defendant about any value (or, implicitly, any lack of value) in the deceased's drawings and designs.[239]

169 Mr Pass identified himself as having been a computer engineer, but now being 'semi-retired' with a small business in 'electronic repair and design'.[240]

170 A significant part of the evidence of Mr Pass concerned an old Data General computer system of which, he said, he had retrieved parts from the factory and Llwynfryn respectively with the permission of the plaintiff and defendant after discussing the matter with each of them at the deceased's funeral in June 2019.[241]

171 In oral evidence, Mr Pass made it clear that he did not own the computer system (as, he said, he had given it to the deceased), but that before the deceased had passed away Mr Pass had promised the deceased that he would remove it.[242] He said to the cross-examiner: 'I'm happy to give it back if you want it back'.[243]

(a) his relationship with the deceased and his observations concerning the deceased's work - including during a two month period in 2014 in which he had worked with the deceased as a contractor in respect of work performed at or for Hilton Manufacturing;[244]

(b) the decline in the health of the deceased in 'approximately 2016' and that the deceased had been 'thinking of closing down the business' at that time;[245]

(c) the deceased having stopped going to the factory 'altogether' in 2018;[246]

(d) incidents in which he had 'bumped into' the plaintiff at the factory - which, he said, amounted to '2-3 hours of contact in total with him over ... 50 years' (albeit that, in oral evidence, Mr Pass confirmed that his evidence could not really be said to determine how often the plaintiff had, in fact, been at the factory);[247] and

(e) his belief that the business had 'no contracts or ongoing work' and that the deceased's business was not 'financially viable' (albeit that, in oral evidence, Mr Pass acknowledged that if the deceased was 'still well' it would be 'quite likely' that he would get 'some work' at Hilton Manufacturing involving 'at least some maintenance on the old machines').[248]

173 Mr Pass was a straightforward witness who stood his ground on certain points, particularly in respect of the Data General computer system, but also made several reasonable concessions.

174 In that regard, I did not get the impression that he thought that his evidence could be relied upon in any definitive way in support of any contention that the plaintiff had not been in the factory in the years prior to the deceased's passing.

175 Mr Pass did not give evidence that, prior to the auction of the factory contents, he had told the defendant that the deceased's designs, drawings and the like had 'no value'.

176 Mr Bent's written outline of evidence was received into evidence.[249] He was not required to attend for cross-examination.[250]

177 Mr Bent referred to his experience 'in valuing, auctioning of industrial machinery and disposing of business assets', and explained the circumstances in which he had attended the factory in June 2019 at the request of the defendant and prepared a list of items for sale at auction.

178 His written outline attached his letter dated 26 June 2019 which, in turn, attached the list of items. The letter expressed a professional opinion that the total value of the items listed was $26,365, and included the following statement -

We have excluded from our valuation:- stock, work in progress, promotional material, patents, trademarks, registered designs, intellectual knowledge and possible goodwill.[251]

179 In that connection, in his witness outline Mr Bent stated -

His letter of 26 June 2019 refers to the fact that no items of intellectual property and the like are included. That is a standard disclaimer he puts on his letters. In the present case, he did not see any folders or documents which caused him to inspect them further, to see if they ought to be valued. He saw bundles of paper and folders but they were piled in a disorderly manner and did not cause him to think that they should be inspected for further value. He did not say anything to Simon such as or to the effect that any value might arise in any such paperwork.[252]

Conclusions concerning the defendant's references to various other witnesses

180 It will be evident from all of the above that -

(a) the defendant sought to rely upon the fact that none of Rheinallt, Mr Marchio, Mr McClure, Mr Pass and Mr Bent informed him that there might be or was any value in the deceased's designs, drawings and the like; and

(b) none of those witnesses gave evidence that they did so.

(a) none of those witnesses made clear that they had any qualifications or experience in robotics, in particular;

(b) nor did any of those witnesses confirm that they had ever been involved in valuing or selling intellectual property in the nature of technical drawings, designs or the like;

(c) it was not apparent that any of those witnesses was asked by the defendant to advise in connection with the value (or lack of value) in the drawings, designs and the like and it is unlikely that they would have been as, when asked in evidence whether he had turned his mind to whether the designs of the deceased might be valuable, the defendant replied 'no'; [253]

(d) in any event, none of the witnesses concerned said that they had been shown the plaintiff's letter to AMS dated 14 September 2019;

(e) it follows that the only person who might reasonably have been in a position to appreciate that there could have been value in the deceased's designs, drawings and the like was the defendant (and, perhaps, his solicitors, AMS); and

(f) it was implicit that the defendant had not sought advice from AMS in respect of any value in or potential to realise the deceased's designs, drawings and the like and, indeed, as I will later come to explain, the defendant did not relevantly respond to the plaintiff's letter of 14 September 2019 either personally or via AMS.

182 In the circumstances, in my view, the defendant's evidence concerning his reliance upon, as the case may be, the asserted failures of Rheinallt, Mr Marchio, Mr McClure, Mr Pass and Mr Bent to tell him that there might be any value in the deceased's designs, drawings and the like was an unproductive exercise in seeking to breathe life into something that was largely if not entirely a red herring.

The defendant's wife, Michelle, and Sian Millane

183 For completeness, I should address the evidence of the defendant's wife, Michelle, and Ms Millane.

184 Michelle gave evidence that she is now a general litigation solicitor.[254] Otherwise, she gave little in the way of oral evidence and was not cross-examined.

185 In her witness outline, which was accepted as her evidence in chief, Michelle relevantly stated that -

(a) she had spoken with the deceased regularly in the period from 2017 until his death in June 2019 and he had told her that 'he and James had no contact and were estranged';[255]

(b) in that period, the defendant visited the deceased 'virtually every weekend', either in hospital or assisting him at Llwynfryn;[256] and

(c) she attended Llwynfryn after the deceased's passing and observed the shed to be 'filthy', the house to have rodent faeces and cobwebs and she 'did not see any System Dynamics documents in the house'.[257]

186 Ms Millane also gave limited oral evidence. Perhaps that is because she presented as the only person who seems to have retained a relationship with both the plaintiff and defendant and to have acted as a go-between, particularly in the period leading up to the deceased's passing and, subsequently, in connection with the funeral.

187 In any event, in her witness outline, which was accepted as her evidence in chief, Ms Millane stated, relevantly, that -

(a) she had seen the deceased 'sporadically over the years', but 'much more regularly over the last 4 years of his life, during his prolonged period of illness';[258]

(b) during those visits, she would ask the deceased about the plaintiff and -

... at no time did Sian [Ms Millane] see or hear or learn of any visits or contact that Harry [the deceased] had with James [the plaintiff] or Carole for that matter. Any questions Simon [the defendant] or Sian asked Harry regarding any such contact were met with a negative response, followed by some Welsh grumbling and curse words (profanities).[259]

(c) in March 2019, with the defendant, Ms Millane had purchased and set up a new mobile telephone for the deceased and did not observe any missed calls, received calls or made calls or texts to or from the plaintiff (or Carole);[260]

(d) the deceased had been 'in very poor health in the last 4 years of his life', including with chronic obstructive pulmonary disease, which made him progressively frail and immobile;[261]

(e) the deceased had not been able to work in that period, had 'no projects underway and did not go to the factory' - in respect of which, Ms Millane said that on occasion she had asked the deceased whether he had gone to the factory and 'he always said he hadn't' (which she said he had also said to the defendant);[262]

(f) when the deceased was in Rosebud Hospital in June 2019, Ms Millane had asked him whether he wanted to speak with or see the plaintiff and he had responded with 'a solid "no" and added that the drunk evil wench not be allowed to go anywhere near him';[263] and

(g) the deceased had apologised to the defendant about the mess at the factory and at Llwynfryn and, in respect of the factory, said 'get rid of it'.[264]

188 Ms Millane's outline also referred, among other things, to a sequence of text messages with the plaintiff, the plaintiff's visit to the deceased shortly before he passed and subsequent telephone discussions with the plaintiff in respect of the locks at the factory and the terms of the will.

Aside from a couple of visits after Harry's death, Sian is not aware of James visiting the property over the last 8 years.[265]

190 In oral evidence, Ms Millane acknowledged that the deceased might 'possibly' have been to the factory 'once or twice' in the final three years of his life.[266] On the other hand, she said -

... definitely not 2018. He [the deceased] might have been there [in] 2016, might have been a couple of times but he was not every day at the factory. He wasn't working, he wasn't standing. So, you know, he wasn't working.[267]

191 In respect of a proposed visit to the deceased in hospital by the plaintiff shortly prior to the deceased's passing, it was evident that a concern of the deceased had been that Carole might also visit. In that regard, Ms Millane stated -

... I said [to the deceased] 'Look, she doesn't have to be there, we will make sure she's not there. Do you want to see him [the plaintiff]? Do you not want to see him?', and he went, 'Yeah, all right'.[268]

192 Finally, as to the plaintiff's evidence that he had been to Llwynfryn in May 2019 just after his birthday, Ms Millane replied 'I assume he has nice photos of the party ...'.[269]

193 The final answer to which I have referred highlights a somewhat flippant quality in Ms Millane's evidence. I do not mean to be critical or to suggest that her written and oral evidence is unreliable; but, overall, it had a light-hearted, general and distinctly impressionistic quality; perhaps influenced by the delicacy of the position that she occupies between the plaintiff and defendant. In my view, that quality must bear upon any assessment of the weight to be afforded to it.

194 In that regard, I should say that in respect of Ms Millane's evidence that the deceased had largely not been to the factory in the last four years of his life and 'wasn't working, he wasn't standing', while I would accept that the deceased had periods of ill health and disability in that period, and did become progressively more frail, I prefer the evidence of Mr Hartley and, particularly, Mr Scott, which had the deceased continuing to do some work and attend the factory in at least periods up to 2017.

196 Like the defendant and other witnesses, the plaintiff prepared written outlines of his evidence that came to be received as his evidence in chief.[270] Also like the defendant and the other witnesses, however, the true character of his evidence was much more apparent when given orally.

197 In that regard, in oral evidence in chief of a necessarily confined kind, the plaintiff said that prior to the passing of the deceased -

(a) he had spoken with the deceased on his own birthday, 7 May 2019;

(b) he had visited the deceased at Llwynfryn several days after that;

(c) he had last seen the deceased in hospital - which he believed to have been on 9 June 2019; and

(d) later that day he had visited the factory.[271]

198 Much of the opening portion of the cross-examination of the plaintiff was directed to strong statements made by him in correspondence. For example, by letter to AMS dated 3 September 2019, the plaintiff referred to the defendant's application for letters of administration with the will annexed and stated as follows -

I have well founded doubts as to Simon's intention or ability to act properly as an executor. He has a chronicled history since childhood of dishonesty - deception; forgery; theft; tax evasion; attempting to pervert the course of justice by supporting his wife making a false statutory declaration to police; in VCAT proceedings providing a forensic accountant with false figures so as to obtain an expert report for his advantage, and after the proceedings had been finalised in my favour, preparing a transfer of land de-valueing the property by some $300,000.00 to avoid he paying stamp duty owed to the State Revenue Office. You will have been advised that Simon is now a member of Victoria Police and I do not know what means he used to pass the fitness tests to satisfy entry requirements because he had undergone surgery for damaged knees and had a pre-existing and ongoing back injury - the latter which he used in a workers compensation claim against the police as a consequence of which he was transferred to light duties work in its office where he now remains.

Shortly after death of deceased, without notice to me, Simon changed the locks on the deceased's home and business premises and with his friends and associates entered the premises and I do not know what assets may have been removed and disposed of.

I require a key to those buildings and request that you arrange for me to be provided with them.

I also require a copy of the proposed inventory of assets and liabilities so that I can inspect the veracity of its contents and advise.

Furthermore, it is open to me to make a Part IV application based on my entitlements pursuant to arrangements made between the deceased and myself during his lifetime. As a consequence of those arrangements and his promises made to me, I acted to my detriment for his benefit and he used me to earn income to support his business and improve his assets. I am arranging to engage an actuary to provide the appropriate documentation to support my claim which I believe will significantly affect the disposable assets of the estate to any other beneficiary.

In these circumstances I believe it is inappropriate for your client's application for Letters of Administration to be made at this time, and prior to round-table discussions being held as to the future conduct of the matter.[272]

199 In oral evidence, the plaintiff confirmed that he held the views expressed; and that those views were 'extreme'.[273]

200 Cross-examination developed in connection with other correspondence, including what was suggested to be another 'extreme' suggestion that the plaintiff would commence Court proceedings in order to obtain keys.

201 From that point, it became evident that the core of the plaintiff's grievance was founded in his having been ignored by the defendant[274] and that, in turn, had led to his apprehension that the defendant, and AMS, were actively seeking to mislead and deceive him.[275]

202 With the benefit of further investigation and consideration, the plaintiff's apprehensions might at least arguably be said to have had some foundation as, by that point, the defendant had obtained the Kensley valuation concerning Llwynfryn but, as I have earlier noted, did not then disclose its existence to the plaintiff or any other relevant person and, indeed, at that time, was preparing or had prepared an inventory of assets and liabilities of the estate that identified the value of Llwynfryn as $2,250,000 (which was much higher than the Kensley valuation and so unsupported by any sworn valuation that had been obtained).

203 In any event, there was a sense in the plaintiff's evidence that a significant part of his feelings of grievance were based in how he had been and was being treated by the defendant (for example, in the text messages to which I have earlier referred, as well as in correspondence sent by AMS on behalf of the defendant).

204 In that regard, in correspondence to the plaintiff dated 13 September 2019 (which was also the day on which the defendant completed and signed the inventory of assets and liabilities), AMS 'noted', but did not concede, what was described as the plaintiff's 'assertion' that the plaintiff and defendant held 'equal rights of access' to the factory and Llwynfryn. The basis for that reservation of position was not identified. In any event, AMS thereafter stated as follows -

We hold no specific view on the merits of your claims nor do we have any further instructions on any of those claims. We would however, make 2 comments in relation to all your previous correspondence as follows:

1. disparaging remarks and commentary as to the vilification of character both of our client and of our firm including any such commentary provided by a third party on your behalf will not be tolerated and we put you on notice that unless you cease and desist from making such comments, we have instructions to issue proceedings against you without any further notice; and

2. you should really get some proper legal advice particularly with regard to your obligations under the Civil Procedure Act 2010 and the costs implications for any such action you may wish to take.

We will keep you informed of all developments.[276]

205 The belligerent tone and content of that correspondence is plain; and in connection with the present dispute much correspondence of an unfortunate kind might be said to have emanated from both sides.

206 It will be apparent, however, that I do not accept that that the tone and content of the various correspondence is a circumstance to be laid entirely at the feet of the plaintiff.

207 Plainly, like his deceased stepfather and brother, the plaintiff has a tendency to make strong statements of an ill-considered kind. However, that tendency will inevitably be accentuated if the stance of the opposing correspondent is high handed and provocative.

208 Further, as I have earlier indicated, the plaintiff presented as a rather lonely and forlorn figure in his dispute against his brother (and his solicitors, AMS).

209 For much of the relevant period the plaintiff was self-represented and, although it tended to be insinuated that he was no more than the amanuensis for his mother, Carole, the plaintiff denied that suggestion when it was put.[277] My sense of him when giving his oral evidence did not suggest that it was an accurate characterisation.

210 It seemed much more apparent that the plaintiff had a rather limited emotional range and had clung in a rather lonely way to such parts of the relationship with the deceased as had been available to him from time to time. That had undoubtedly been difficult owing, in significant part, to his ongoing relationship with Carole, about whom, as I have noted, the deceased periodically or often expressed strongly antagonistic sentiments.

211 Further, the deceased was evidently no stranger to strong statements of an excoriating and personal kind that he must have directed at the plaintiff, at least occasionally, and acted upon performatively, from time to time, by rejecting contact with him. Much of that, I suspect, was directed at trying to drive the plaintiff's behaviour in whatever direction was thought by the deceased to be desirable - particularly, away from Carole, if possible.[278]

212 As I have earlier noted, the plaintiff had also fallen out with the defendant and it was essentially common ground that they had been estranged since about 2014. In the final years of his life, the deceased seems to have had much more contact with the defendant than the plaintiff.

213 The isolation from his brother and inconsistent and at times strained contact with his stepfather - who must also have been regularly in contact with the defendant rather than the plaintiff in the latter stages of his life - can only have accentuated the difficult emotions presented which, as I have endeavoured to suggest, the plaintiff does not seem to have been naturally well equipped to navigate.

214 Nonetheless, it was plain enough that despite the difficult emotional terrain presented, the deceased and plaintiff had maintained some degree of connection via the factory, the business of System Dynamics and their mutual passion for robotics. Poignantly, at different points, the plaintiff said 'the business was never supposed to close down', that he had hoped to pick up where his stepfather had left off and that 'dad's work was priceless to me'.[279]

215 In that context, the plaintiff's rather suppressed and inadequately expressed feelings plainly got the better of him at times in the correspondence and, in my view, it also affected parts of his oral evidence. Consequently, he did not get everything right and, as will later become apparent, not all elements of his account can be accepted.

216 In my view, however, much of that is derived from his isolated position in a painful family dispute, for which he was emotionally ill-equipped and in which he was also, for the most part, unrepresented and on the outside looking in. Such circumstances can have a natural tendency to distort recollection and judgement. The same cannot be said for the defendant.

217 In the circumstances described, the plaintiff's expressions of bewilderment and grievance became more apparent as his oral evidence developed. For example -

(a) in respect of his letter to the solicitors for the factory landlords dated 4 October 2019, the plaintiff said 'this is a result of Simon's behaviour towards me', 'no one would talk to me' and 'no one would answer my letters';[280]

(b) in respect of a robot system at the factory, the plaintiff said 'I ... was never given the chance by Simon' and 'I was shut out by Simon';[281]

(c) in respect of the business at the factory, the plaintiff said that he was 'hoping to mediate it out with Simon' but that he 'was not able to do that';[282]

(d) in respect of a letter dated 18 October 2019, which the plaintiff said had been an attempt to 'get further information about Dad's estate', he said -

... at no point in my mind did I ever think that Simon would do what he did and shut me out of the factory and hand it all to the landlords, ... let it get taken over, not protect the estate, and let the whole thing get flushed down the toilet, all right?[283]

(e) in respect of his letter dated 24 October 2019, the plaintiff said that he had been trying to 'settle it' with the defendant, 'you can see I've been shut out', 'Mum was pretty upset and angry with both of us' and 'I'm just trying to fix things';[284]

(f) in respect of the letter from AMS dated 6 November 2019 (but received on 26 November 2019) concerning a proposed auction of the contents of the factory, the plaintiff said -

... I didn't want any auction to happen. The business was never supposed to stop. This was going against everything dad wanted, and that I thought was supposed to happen as well, or believed was supposed to happen. So, um, I didn't agree with any of this. This is steamrolling.[285]

(g) again in respect of the factory contents, the plaintiff said -

I wasn't having any proper communication, um, with AMS Solicitors. I was getting nasty letters back. Um, nothing could be, um, arranged to any effect of anything that I wanted. It was all what they wanted to do. As I said, I was getting steamrolled.[286]

(h) later, the plaintiff said that he found that AMS was being 'quite evasive' and that 'no-one was listening to me from the minute dad died'.[287]

218 Prior to the first of the above instances in which he referred to the 'behaviour' of the defendant, the plaintiff gave evidence concerning the deceased and the factory and there stated that -

(a) he had not worked with the deceased at the factory since September 2018;[288]

(b) the deceased might have been at the factory after that time 'as he was still driving';[289]

(c) he did not accept the proposition that the deceased had not attended the factory 'for the whole year of 2018';[290]

(d) the health of the deceased had been 'getting worse' in 2018, but said that he 'still managed' and had been 'a fighter' and 'not one to whinge';[291] and

(e) the deceased had continued to work, in that -

... he was still designing, still writing programs. He can't crawl up on top of gantry cranes any more. He couldn't do that anymore. He couldn't crawl under the machines anymore. That's what he had me to do. He worked to a capacity he could maintain.[292]

219 Later, and particularly after he had been taken through parts of the correspondence that had passed between him and AMS, the plaintiff's evidence became more discernibly pained, wistful and affected by the personal features and emotional limitations to which I have earlier referred.

220 Consequently, the quality of the plaintiff's evidence changed and, for me, several parts of it became considerably more difficult to accept. In particular, the extent to which it might be said to have been suggested that in any period in the years prior to the deceased's passing the plaintiff and the deceased had -

(a) discussed upgrading some of the machines in the factory;[293]

(b) made arrangements for the plaintiff to take over the business of System Dynamics;[294]

(c) merely argued from time to time 'like any family';[295] and

(d) never discussed closing the business.[296]

221 In my view, that evidence tended to reflect the plaintiff looking back in a rather wistful way upon what he had hoped would or should have occurred, rather than any accurate recollection of discussions that had in fact occurred in any kind of consistent way.

222 That is not to say that portions of that evidence might not have had some skerrick of foundation in discussions that had occurred between the plaintiff and the deceased at some time; perhaps at a somewhat earlier time. However, I do not accept that it accurately reflects the consistent content and character of the discussions between the plaintiff and the deceased in the few years prior to the deceased's passing.

223 Senior counsel for the defendant thereafter traversed a range of other topics in the course of a cross-examination of considerable length and breadth. However, the influence of the dashed hopes and feelings underlying the plaintiff's evidence remained close to the surface and tended to be evident at various later points.

224 In that context, there are particular aspects of the plaintiff's later evidence that I am unable to accept.

225 In that regard, the plaintiff gave evidence that Carole had called Mr Bent, the auctioneer of the factory contents, and, among other things, explained that the factory contained 'important' or 'sensitive' documents. The plaintiff said that he had been present with his mother during the call.[297]

226 I would accept that Carole made a call to Mr Bent in about December 2019 as such a call is referred to in a letter from Mr Bent to the defendant.[298] However, the text of the letter does not refer to any mention of 'sensitive' documents and, as I have earlier noted, Mr Bent's list of items and valuation in respect of the proposed auction excluded, among other things, 'intellectual knowledge'.

227 In the circumstances described, it is not obvious why it would be that any such call to Mr Bent should or would have been thought to be the occasion on which it was necessary to raise the existence of any such information. Further, as emphasised in cross-examination, both of the plaintiff's written outlines of evidence make no mention of that call and, as I have also noted, Carole was not called to give evidence.

228 Whilst I would accept that by the time he gave oral evidence the plaintiff had come to believe that Carole referred to 'important' or 'sensitive' documents in the course of her telephone discussion with Mr Bent, I consider that evidence to be mistaken.

229 The plaintiff also gave evidence that 'manufacturing' took place at the factory up to early 2019 and that both he and the deceased had been 'working on it'. The overall suggestion in that passage of evidence was that the plaintiff and deceased had together continued to do manufacturing work in the factory into 2019.[299]

230 Although the plaintiff himself sought to reconcile that suggestion with his earlier evidence that he had not attended the factory with the deceased after September 2018, I am inclined to accept the earlier evidence and not accept that he was involved in any manufacturing work with his stepfather at the factory after that time. Several aspects of the evidence to which I have earlier referred stand firmly against the suggestion that the deceased was attending the factory after September 2018.

231 I should add that there are various further aspects of the plaintiff's evidence that I cannot accept, such as his evidence that he would have purchased Llwynfryn at the McLean valuation; which is considered later and in some detail.

232 Notwithstanding the various deficiencies in his evidence, in my view the plaintiff overall sought to do his best when giving his evidence. That was very much the feel of his evidence, although it will be evident that various parts of it cannot be accepted. It is not, however, a position in which the whole of the plaintiff's evidence should be treated as unreliable.

233 In that context, I am inclined to accept his evidence that he did not receive the 2013 letters on or about the dates there appearing.[300] Having seen this evidence in respect of those letters, I accept it.

234 More particularly, however, I note that the second of the letters speaks of a response from Carole, but not the plaintiff. That tends to suggest that the first letter was read and perhaps opened by Carole. While the plaintiff has evidently resided with Carole at times, it does not seem to me to be inevitable that a parent would convey letters containing potentially hurtful commentary of that kind to their intended recipient.

235 In the circumstances described, I make the following findings concerning the relationships between the deceased, plaintiff and defendant and, in particular, the suggested 'estrangement' of the plaintiff and the deceased -

(a) the deceased was an eccentric, who was apt to behave in a volatile and performative manner - regularly involving the use of strong language - in pursuit of what he perceived to be his self-interest;

(b) since the mid-1980s, the deceased was separated from Carole and, certainly by the time of the will and the 2013 letters, there seems to have been at least periods in which their relationship was acrimonious - including, seemingly, in the period of a year or more leading up to the deceased's passing;

(c) the plaintiff was and is close to Carole and the acrimony in the relationship between the deceased and Carole had the potential to involve and did affect the plaintiff and his relationship with the deceased;

(d) in that regard, the relationship between the deceased and the plaintiff was at times strained and there were periods in and after 2013 in which they did not have much in the way of contact;

(e) the plaintiff ceased working full-time with the deceased in 2008, and, in 2009, suffered injury in the Black Saturday bushfires and has not worked regularly for remuneration since that time;

(f) however, in the period after 2009 and until about September 2018, the plaintiff did continue to attend the factory from time to time in order to assist the deceased with his various projects (which included both of them attending Hilton Manufacturing and dealing with the staff there);

(g) in that regard, the mutual passion of the deceased and the plaintiff for robotics helped to ameliorate, perhaps imperfectly, the periodic breaches in their relationship and, in that connection, neither seems to have been very motivated by money;

(h) the deceased commenced to struggle with his health following hip surgery in late 2012 or early 2013 and sent the 2013 letters, although they were not received by the plaintiff;

(i) in contrast with the defendant, Michelle and Ms Millane, the plaintiff had little involvement in the deceased's care in relation to his various health troubles in and after 2013 and, particularly, in and after 2016 and until his passing in June 2019;

(j) it is likely that from the point in about early 2013 that the deceased commenced to struggle with his health, it affected his ability to work in any sustained way. While he continued to work at the factory and service clients such as Hilton Manufacturing, in particular, he was ageing and experiencing periods of disability, and I expect that his capacity to source and maintain client relationships as well as to create, supply and maintain robotic inventions was increasingly restricted from early 2013 onwards;

(k) the deceased had further surgeries in 2014 and 2015 and his health deteriorated further in 2016 when he had pneumonia;

(l) in that context, he continued to be involved in increasingly diminishing aspects of his work (particularly, for Hilton Manufacturing and with or for Mr Scott) until some point in 2017;

(m) that said, there must still have been some periods of work by the deceased at the factory until about that time, as Mr Scott gave evidence, and I accept, that the deceased had 'lived there almost';[301]

(n) the deceased's involvement in work at the factory ceased entirely at some point in 2018 (most likely about September 2018) and it is likely to have been at that time that the deceased spoke with Mr McClure about closing down the factory (although, he did not in fact close down the factory at that time and, rather optimistically, seems to have continued to pay rent on it);

(o) the deceased may also have mused about closing down the factory earlier, in 2016, and may have exchanged strong words with the plaintiff about the issue, but the factory did not close down on that occasion either;

(p) in and after 2016, the defendant, Michelle and Ms Millane dealt with the deceased and looked after him when he was in hospital and otherwise requiring care;

(q) at that time, the deceased knew that the plaintiff and the defendant were themselves estranged;

(r) in that context, the deceased would, from time to time, speak with the defendant and/or Ms Millane concerning the plaintiff in a dismissive and exaggerated way, and may even have suggested that they were 'estranged' - which might even have been half-true at some points, in the sense that there were periods of little or limited contact;

(s) in my view, any such points or periods of 'estrangement' are most likely to have related in some way to the acrimony in the deceased's relationship with Carole and the fact that the plaintiff continued to have regular contact with Carole;

(t) the fact that the deceased referred to 'estrangement' in conversation with the defendant is likely to have had more to do with building an emotional alliance with the defendant and his supporters in circumstances in which they were tending to his health needs and the plaintiff largely was not, rather than to any truth in any notion of sustained 'estrangement';

(u) for reasons pertaining to his relationship with the deceased and his own estrangement from the plaintiff, I expect that the defendant was apt to seize upon the slightest of suggestions to the effect that the deceased might be 'estranged' from the plaintiff and, accordingly, any such suggestions could easily become exaggerated in the mind of the defendant;

(v) it follows that despite whatever was being said to the defendant on the topic of 'estrangement', the deceased would, in fact, continue to have occasional contact with the plaintiff at the factory in the period from 2016 until 2018;

(w) I also accept that the plaintiff attended Llwynfryn to visit the deceased in May 2019;

(x) for his part, in 2018 and until June 2019, the plaintiff continued to attend the factory very occasionally to work on projects that were in various stages of semi-completion - albeit, not projects that were ever completed or ever realised any revenue;

(y) in that sense, both the deceased and the plaintiff maintained an emotional attachment to the robotics business based in the factory until the time of the deceased's passing, albeit that the operation of the business was decreasingly active from about 2013 until it essentially ceased engaging outwardly with clients in about 2017;

(z) in that context, shortly prior to his passing and while he was in hospital, I accept that the deceased referred to the factory and said to the defendant, in the presence of Ms Millane, 'get rid of it';

(aa) that statement was, of course, said at a time at which the deceased was very unwell, undoubtedly overwhelmed with his disability and coming to see that his dream of returning to the factory was unrealistic;

(bb) however, that statement was not said to the defendant in any capacity as executor or administrator and it does not follow that the deceased either intended or should be taken to have intended that any and all contents of the factory - valuable or not - should simply be discarded without any attempt made to realise their value;

(cc) in the period immediately prior to the deceased's passing it was arranged via Ms Millane that the plaintiff would and he did attend Rosebud Hospital to visit the deceased; and

(dd) shortly after the deceased's passing, the defendant discovered the will and the 2013 letters and linked them with his own dislike of the plaintiff and what he perceived to have been statements made by the deceased concerning 'estrangement' from the plaintiff and 'getting rid' of the factory that, unfortunately, thereafter influenced him very greatly in his subsequent dealings with his younger brother and the estate.

236 The above is, of course, derived from a consideration of all of the evidence - with all of its evident imperfections - as well as the probabilities involved in all the circumstances.

What intellectual property was at the factory and/or Llwynfryn?

237 As I have earlier noted, after the plaintiff became aware that Mr Bent had auctioned the factory contents on 14 February 2020, he wrote to AMS in respect of what he described as the 'documentation, software and manuals' stored in 'multiple filing cabinets' and held on the deceased's computers at the factory and at Llwynfryn. The plaintiff said -

These documents were the product of over 50 years of design work by the deceased. He undertook proprietary design and consultancy work for Esso, Toyota, Mitsubishi, CSR, Hiton Manufacturing and many other clients as System Dynamics.[302]

238 As I have earlier noted, the photograph of the factory office taken at some time prior to the auction depicts a drafting board, the 'A1 filing cabinet' (with what appear to be design drawings on top), another filing cabinet and piles of folders and documents.[303]

(a) witnesses acknowledged that there had been an A1 filing cabinet and design drawings in the factory office;[304]

(b) the defendant also acknowledged that there had been design documents and a 'tower computer' at the factory;[305] and

(c) the defendant acknowledged that the deceased 'didn't throw stuff out'.[306]

240 In his witness outlines, the plaintiff gave very detailed evidence concerning the deceased's work, the various clients of System Dynamics and the kinds of documents and software that had been at the factory and Llwynfryn.

241 Among other things, the plaintiff stated that -

(a) the deceased had specialised in advanced industrial automotive systems and integrated industrial robots and he had designed robotic turnkey solutions and special purpose machinery with electrical/pneumatic/hydraulic control systems to integrate with robots and was one of the first in Australia to do so;

(b) business customers had come from a wide variety of industrial sectors and he named Hilton Manufacturing, Hayman Reece, ARC, Ford, Holden, Mitsubishi, Nissan, Fallshaw Castors, Andy Engineering, Harvest Engineering, Schiavello, Wigley Engineering, Frontline Australasia, Décor Engineering, Ramset, Radio Frequency Systems, Delphi Technologies, Brimis Engineering, Brivis Australia, Naomi, James Hardie, CSR Ltd, Aquamax, Rheem, Titan Engineering, RMC Reliance Valves, Laminex, Pioneer and AE Atherton & Sons;

(c) most of the design and manufacturing work had been performed at the factory and that was where the deceased stored 'his design drawings, computer programs, software and other documents, along with his more general business records';

(d) the deceased kept concept designs and detailed manufacturing drawings in the A1 filing cabinet at the factory;

(e) the programs were on disc and on computers;

(f) the designs were catalogued, numbered, indexed and in date order and he had customer documents in paper files organised by customer and date;

(g) there were three computers at the factory: an HP desktop computer, a Texas Instruments laptop and an HP laptop computer; and

(h) the deceased also did design work, wrote programs and had a desktop computer at Llwynfryn.[307]

242 The plaintiff was cross-examined about the contents of the factory, but in a manner that went more to any suggestion that any of it could have had any value and, indirectly, perhaps, to the plaintiff's credit and reliability as a witness. However, it was not directly suggested that his evidence concerning the presently relevant contents of the factory was incorrect.

243 That said, aspects of the defendant's account concerning the presence of 'catalogues, old lists, notes, old email printouts and things of that nature' at the factory were put, and the plaintiff relevantly rejected it.[308] In that connection, the plaintiff had earlier confirmed that -

... in the filing cabinets, and in the other filing cabinets that you can see, um, next to the A1, um, that was all business documentation, tax records, personal records, his whole life.[309]

244 In any event, I have earlier confirmed that I do not accept that part of the defendant's evidence.

245 In the course of the plaintiff's evidence, whilst he might be said not to have abandoned or consciously diminished the significance of manuals, software and other documents, the plaintiff did give emphasis to the drawings and designs contained within the A1 filing cabinet.[310]

246 In that connection, I note the following evidence given by Mr Scott concerning the manner in which the deceased's designs and drawings had been stored, organised and used -

I spent a lot of time at Harry's factory in Cheltenham over the years. We often used Harry's designs and drawings from past jobs to help us with whatever we had on the go at any given time. These designs and drawings were mainly on paper - the A1 sized design drawings and associated documentation. Harry was very organised, and his technical documentation was first class. It was also very well indexed and arranged, he could and did go to a filing cabinet and pull out what he had done on a job 10 years ago and use it or part of it in a new design.[311]

247 I have earlier referred to the evidence of Mr Marchio concerning his inspection of certain drawings when he attended the factory in the company of the defendant in June 2019.

248 In that regard, in his written outline of evidence, Mr Marchio sought to suggest that he had found 'no index or other information about what the drawings were' and stated that there was -

... no customer details, no date or anything that would indicate the drawing is a first or last or most recent draft. ... the drafting properties as to what it was, the customer, the date and version, were mostly not completed. Some of the drawings had no such boxes and some of them had no or partial information in the box. I recall seeing some of the boxes having dates in them. The dates I saw were old. So, it is not known for whom the drawings were produced and who would hold the proprietary rights over the drawings.[312]

249 In oral evidence, Mr Marchio referred to 'various drawings, different sizes, different materials' and said that there were 'some very old drawings' and 'some modern drawings'.[313] Later, in cross-examination, Mr Marchio stated -

Whatever's on the video, that's what I looked at. Obviously I would have come in through the office area but again, there was nothing really to see in there ...[314]

250 I have earlier referred to the care that must be taken with Mr Marchio's evidence and the cursory nature of any inspection of the drawings, designs and the like that he must have undertaken when he attended the factory with the defendant in June 2019.

251 In that connection, I note that his oral evidence gave little emphasis to the earlier suggestion that the drawings that he had seen were mostly drafts or incomplete.

252 In any event, I would not be surprised if the drawings and designs held in the 'A1 filing cabinet' or otherwise had included incomplete and draft designs and drawings. After all, the deceased was an inventor and not every idea is likely to result in a completed invention.

253 That said, it was plain from the evidence of Mr Hartley that in many instances the deceased designed inventions to completion and thereafter supplied, installed and maintained them. In that connection, the deceased must have retained final drawings and the like as well as, perhaps, various earlier drafts relating to earlier or unused ideas.

254 Further, as I have noted, Mr Scott gave evidence that the drawings and the like were properly indexed, organised and used, and the plaintiff gave similar evidence (albeit in much greater detail).

255 I accept that evidence and reject any suggestion that the drawings and the like held at the factory were either few in number or wholly or mostly drafts and/or incomplete.

(a) over a period of many years the deceased prepared drawings, designs, manuals, associated documents as well as software in the course of creating his prototypes and inventions, including for clients of System Dynamics;

(b) those were his original works;

(c) accordingly, he held the copyright in those works;

(d) the drawings and designs were indexed and kept in an organised way, particularly in the 'A1 filing cabinet'; and

(e) any software associated with those designs was very likely kept in his computer at the factory.

257 On 7 February 2020, the defendant, as administrator, together with the landlords, authorised Mr Bent to auction certain listed goods and to deposit the proceeds of sale into a trust account 'to first be applied toward satisfaction of all reasonable outstanding amounts'.[315]

258 In his witness outline, Mr Bent explained that the list had been created in June 2019 and constituted an inventory of the items which he had seen and believed could be of value for sale at auction.[316] That list included the A1 filing cabinet, another filing cabinet and a desktop computer.

259 It did not seem to be in dispute that the contents of the A1 filing cabinet and any related documents, computers or software remained in place at the factory until shortly before and/or shortly after the auction of the factory contents.

260 In those circumstances, albeit that I have concerns about various aspects of Mr Marchio's evidence, I accept his evidence that -

(a) there were 'some old' and 'some modern' drawings in the factory office when he attended the factory and took the video in June 2019;

(b) prior to the auction of the factory contents in February 2020, Mr Bent had 'cleaned the place out of a lot of other items or a lot of the waste material'; and

(c) he attended the auction of the factory contents on 14 February 2020 and, on that occasion, somebody opened the drawers of the A1 filing cabinet and that drawings were in the cabinet.[317]

261 By letter dated 25 February 2020 addressed to the attention of the defendant, Michael J Bent Auctioneers Pty Ltd identified the items auctioned on 14 February 2020 and the proceeds generated. The A1 filing cabinet was sold for $120, the other filing cabinet was sold for $5 and the desktop computer was sold for $5.[318]

262 The evidence of Mr Marchio contemplated that the person or persons who, for example, purchased the A1 filing cabinet, may also have taken possession of its contents.[319]

(a) in his witness outline, Mr Bent said that he had been instructed by the landlords to provide 'an empty, clean factory and he delivered that';[320] and

(b) photographs taken by Mr Bent after the auction indicate that its contents were very substantially or wholly cleared in the course of or shortly following the auction.[321]

264 I find that the deceased's various designs, drawings, manuals, documents and software were at the factory until they were disposed of by Mr Bent shortly prior to or in the course of the auction of the factory contents on 14 February 2020, or immediately thereafter.

265 Although I have accepted that the designs, drawings, manuals, documents and software were the deceased's original works and that he personally held copyright in them, it did not ultimately seem to be in dispute that upon a finding that those documents were the deceased's original works and pursuant to the provisions of the Copyright Act 1968 (Cth), copyright in them must have been subsisting in the deceased at the time of his passing. Accordingly, I will hereinafter refer to those documents as the 'intellectual property' at the factory.

266 In respect of the disposal of the factory contents, including the intellectual property, the defendant seemed to suggest that there was some relevant distinction between the landlords and himself as administrator,[322] and also submitted that the plaintiff had been 'aware' that an auction was 'coming up' and had 'failed to protect his own interests' which, it was said, 'he was in the best position to protect'.[323]

(a) as I have noted, the defendant was involved in the original retention of Michael J Bent Auctioneers Pty Ltd in June 2019, in the course of which he had attended the factory with Mr Bent while the inventory was prepared of a great number of items including the 'A1 filing cabinet', two other filing cabinets and a desktop computer;[324]

(b) the landlords took possession of the factory premises in September 2019, however it is plain from an email sent by the defendant to Rheinallt on 25 November 2019 that the defendant had remained on terms with the landlords such that he was still able to deal with any part of the 'plant, equipment and personal items stored on the premises';[325]

(c) on 24 January 2020, the solicitor for the landlords wrote serving a notice of disposal of uncollected goods on the defendant and plaintiff respectively, and it was there stated that the goods could be collected from the premises upon the payment of a storage charge;[326]

(d) the plaintiff subsequently wrote to the solicitors for the landlords offering to pay the storage charge and to attend the factory 'for removal of the contents as requested';[327]

(e) on 28 January 2020, the solicitors for the landlords wrote to AMS noting that the notice of disposal of uncollected goods had also been served on the plaintiff and asking whether the estate would agree to the plaintiff paying the storage charge and collecting the goods;[328]

(f) on 31 January 2020, the solicitor for the landlords wrote to AMS to advise of their agreement in the defendant's proposal to auction the goods held at the factory in order to cover the debts of the estate owed to the landlords and, in connection with the endeavours of the plaintiff to pay the storage charge and retrieve the goods, stated -

Now that James, finally, has confirmed that his interest in the goods stems only from his beneficial entitlement under the estate and not from any direct ownership, I intend to respond as per your letter, namely that as he does not have any authority to act on behalf of the estate with respect to the goods, and my office will cease all further communication with him. From now on my clients and I will discuss these matters with the administrator of the estate only. In this regard, we ask that you forward a copy of the letters of administration for our records.[329]

(g) on the same day, as foreshadowed to AMS, the solicitor for the landlords wrote to the plaintiff and relevantly stated -

As you are not the administrator of the estate and as you do not have a direct ownership in the goods, you do not have authority to discuss how the goods are to be treated and our clients will now cease further correspondence with you.

If you have any questions as to how the administrator chooses to handle/dispose of/sell the goods, we suggest that you contact the administrator's lawyers, AMS ...[330]

(h) on 7 February 2020, the defendant and landlords authorised the auction;[331]

(i) on 10 February 2020, Mr Bent emailed to the solicitor for the landlords, AMS and the defendant (but not the plaintiff) a copy of an advertisement published in The Age concerning an auction to be held at the factory on 14 February 2020;[332]

(j) the auction of the factory contents took place on 14 February 2020 - in respect of which it is apparent that Mr Bent, the defendant and Mr Marchio were present, but it is not in dispute that the plaintiff was not; and

(k) on 19 February 2020, AMS wrote to the plaintiff about a range of issues and, at the end of a lengthy letter, advised that '[t]the chattels at the Factory were valued by a certified valuer and sold at a public auction on 14 February 2020'.[333]

268 It was not in dispute that the defendant knew that the auction was going to occur and that the factory was to be, and was, cleared of its contents - indeed, at trial, the defendant sought to contend that the plaintiff also knew (or ought to have known) that the auction would be held and the factory cleared.

269 The plaintiff gave evidence - and I accept - that he did not know that the auction was going to occur on or shortly after 14 February 2020. As he put it -

The next thing, I heard they'd had an auction. So, as I said, I was steamrolled.[334]

270 In that evidence, it was quite plain that the plaintiff had not understood that the factory was imminently to be cleared of all of its contents - nor does he seem to have been told that in any communication from the solicitors for the landlords, Mr Bent, AMS or the defendant.

271 It will be apparent from the reality of the events to which I have referred that the defendant's submission that the plaintiff 'failed to protect his own interests' which 'he was in the best position to protect' cannot be accepted.

272 As to the contents at Llwynfryn, the defendant seems to have admitted that 'System Dynamics documents' from the house were 'discarded in a 16 cubic metre bin in January 2020'.[335]

273 In that connection, the defendant averred that the documents were 'old, in varying states of disrepair and decay' and also that the documents and various other items disposed of at that time were 'valueless or in a state of disrepair or decay'. On the other hand, the defendant asserted 'no knowledge of a desk top computer' or 'further boxes of System Dynamics documents'.[336]

274 By her written outline, the defendant's wife, Michelle, gave evidence that -

(a) she assisted the defendant to clean up Llwynfryn over a period of two days;

(b) the shed was 'filthy' and she did not enter it;

(c) anything in the house that 'looked like rubbish' was thrown into a skip;

(d) she did not see any System Dynamics documents in the house; and

(e) it appeared that mice or rats had been 'running wild' in the house and there were 'thick cobwebs' in every room.[337]

275 The tendered documentary material includes what appears to be a tax invoice relating to waste removal from Llwynfryn on 13 January 2020.[338]

276 For his part, the witness outline of the plaintiff said that the deceased had stored 'some of his business documents, computers, prototypes and work-related equipment' at Llwynfryn, 'both in the house and in the large shed'. He said that the documents had been 'well organised and indexed'.[339]

277 On the other hand, in a letter to AMS dated 24 October 2019, the plaintiff referred to Llwynfryn and stated -

Every part of the cottage is dirty and run down and there is no heating. The gutters are full of weed and rust; the floors are damaged; the steps are broken; it is not known whether the cook top is working and there is no oven; the taps in the bathroom are broken. The shed has a 1.00 metre x 3.50 metre hole in the roof and everything within is covered thickly with moss, rat and bird manure.[340]

278 In oral evidence, the plaintiff acknowledged the state of the shed, but said that there had been no rats in the house.[341]

279 In respect of the present issue, I consider it to be most appropriate to rely upon the evidence of Michelle. Consequently, I find that -

(a) there were System Dynamics documents in the shed at Llwynfryn that were spoiled and disposed of into a skip on or about 13 January 2020; and

(b) there were no System Dynamics documents in the house.

280 I am unable to make any finding as to whether there was a computer at Llwynfryn at that time or, if so, what became of it. In light of the evidence of Michelle, if there was a computer at Llwynfryn, it was likely in the shed and spoiled.

(a) there was intellectual property at the factory that was destroyed or disposed of shortly prior to or otherwise in connection with the auction of the factory contents in mid-February 2020;

(b) the factory was messy and at least parts of it must also have been dusty, but the intellectual property at the factory was organised and could have been inspected and properly assessed - particularly the parts of it contained within the A1 filing cabinet;

(c) after his appointment as administrator on 4 November 2019, the defendant could have inspected, properly assessed and retrieved any of the intellectual property at the factory if he had desired to do so, particularly the desktop computer and the A1 filing cabinet;[342]

(d) there may have been System Dynamics documents in the shed at Llwynfryn, however those documents were spoiled and valueless and were disposed of on or about 13 January 2020; and

(e) accordingly, the plaintiff does not have any relevant claim in respect of whatever System Dynamics documents may have been at Llwynfryn.

What the defendant knew or ought to have known about the intellectual property at the factory?

282 In evidence, the defendant sought to say that he did not know that the intellectual property at the factory could be or was valuable.[343]

283 To a significant extent, however, much of the present issue turns upon what the defendant 'ought to have known', rather than what he 'knew'.

284 In those circumstances, the relevant submissions of the parties were, to some extent, informed by the principles relating to the duties of an administrator, about which it was said that there was essentially no dispute. Senior counsel for the defendant said that the difference between the parties came down to 'how those duties apply to these facts'.[344]

285 In that regard, in final address counsel for the plaintiff submitted that -

(a) the defendant was aware of the existence of business documents at the factory;

(b) he did not need to know of the existence of valuable documents at the factory;

(c) he had negligently failed to acquire knowledge as to the value of the documents, which -

... can be tested by asking whether an independent person appointed and knowing of the existence of business documents including design drawings, manuals, customer files, software files, would have been able to comply with his duties by not looking through those documents and instead throwing them away or allowing them to be thrown away.[345]

(d) the reasons why the defendant did not speak to the plaintiff do not excuse the fact that he did not do so; and

(e) if he had made appropriate enquiries he would have learned that the documents had 'a significant value'.[346]

286 In response, senior counsel for the defendant submitted variously that -

(a) it could not be said that the defendant knew that there were 'documents, manuals, business documents, drawings, however it's characterised' that 'ought to have been dealt with in some way';

(b) there was no evidence that 'it' was brought to the defendant's attention save for 'very limited words' in the plaintiff's letter of 14 September 2019 - which was said to have comprised 'one letter' containing a 'raft of allegations' within which a reference to 'some documents' was 'buried' and which letter was also said to have adopted 'strong language' and a 'threatening tone';[347]

(c) from the circumstances known to the defendant, it could not be 'derived' that there was 'something in these documents that ought to be followed up', particularly -

... [the deceased's] state of health in the last years of his life; the actual condition of the factory; ... combined with what he saw for himself, which ... [was] ... folders on shelves; there were books - old manuals.[348]

(d) as to whether the defendant ought reasonably to have asked the plaintiff about the drawings, designs and the like, it was said that the deceased had told the defendant of an 'estrangement' and that the defendant had seen the 2013 letters;[349]

(e) more broadly, '[t]here was nothing to alert him ... from those who were close to the deceased', and the deceased had apologised for leaving the factory in a 'mess' and told the defendant to 'get rid of it';[350]

(f) there was nothing 'amongst all of that' from which the defendant should have been 'supposed to discern' that -

... there's a little pot of gold hidden somewhere in the factory, by way of the business documents, or by way of drawings.[351]

(g) at that stage, 'we know that rent [on the factory] is worth some $9,300';[352]

(h) by letter from AMS dated 4 October 2019, the defendant had offered for the plaintiff to purchase the whole of the contents of the factory for half of $25,000, to which the plaintiff had responded by referring to a figure 'in the order of $6,000' and, accordingly -

... how is it in this case ... said that Simon himself is supposed to figure out that there are documents that need to be dealt with, that there are documents that have some value?[353]

(i) in respect of Hilton Manufacturing, System Dynamics had had some 'quite large orders' in 2010, but that the 'final order that was made [was] in 2017';[354] and

(j) Mr Scott and Mr Hartley had not been in the deceased's mobile telephone and had not known that he died or attended the funeral.[355]

287 It will be evident that parts of the address of senior counsel for the defendant were marked by language of a somewhat rhetorical kind.

288 I do not accept that it was necessary for the defendant to have known that the designs, drawings and the like should be 'dealt with' or realised in some specific or particular way. The issue is what, in the circumstances, the defendant ought to have known; from which he could then have made appropriate enquiries and/or had the intellectual property properly assessed.

289 At the very least, shortly after his first attendance at the factory following the passing of the deceased, the defendant knew or must have known that -

(a) the deceased had been a brilliant, innovative and highly regarded inventor;

(b) via System Dynamics, the deceased had supplied robotic inventions to very significant manufacturing companies in Australia over a long period of time;

(c) in that period, and until recently when the health of the deceased started to fail, the business had sustained itself and the factory;

(d) the deceased had rarely if ever thrown anything away;

(e) the folders, other records, filing cabinets and, particularly, the A1 filing cabinet, were still plainly to be seen in the office at the factory; and

(f) design drawings were sitting on top of the A1 filing cabinet - which reasonably suggested that the A1 filing cabinet contained such drawings.

290 In that context, it is tempting to conclude that the defendant must also have known that it was possible for design drawings to constitute intellectual property and therefore to have some value. After all -

(a) the defendant said that he had some intellectual property rights registered in his own name;

(b) at trial he knew and, in light of the above, may perhaps earlier have known, what copyright was;[356] and

(c) in or after June 2019, the defendant had undertaken 'all sorts of searches' in respect of the deceased on the website of IP Australia.[357]

291 However, in the circumstances, it is probably more accurate to say that the defendant ought to have known that designs, drawings and the like could constitute intellectual property and so could conceivably have value.

292 In that regard, the defendant knew of the circumstances to which I have referred and specifically contemplated that the deceased might hold intellectual property. From that point -

(a) he seems at all relevant times to have had ready access to legal advice;

(b) if he had sought proper advice he would undoubtedly have been told that it was possible for design drawings and the like to constitute intellectual property that could conceivably hold value; and

(c) even if he had asked Mr McClure - whose opinions he sought to emphasise in the course of his evidence - Mr McClure knew of Hilton Manufacturing and would have been able to say that he had seen the deceased's design drawings and that such drawings were 'important'.[358]

293 However, as I have earlier noted, the evidence was that Mr McClure did not say anything to the defendant about any value in drawings and designs[359] and, if it is presently suggested that the defendant had asked Mr McClure about potential value in such drawings and designs, I do not accept it. Further, there was no evidence that the defendant ever sought relevant legal or other advice.

294 In the circumstances, even without asking any questions of the plaintiff, the defendant must realistically have been but the shortest of steps from learning that at least some of the design drawings and other such documents (and software) in the factory could conceivably have had value.

295 Against that, of course, the defendant pointed to a range of surrounding circumstances. Much of that seems to me to have emerged defensively and in circumstances that are now acutely forensic. I am not confident that much of it was really in the defendant's mind at the time and, as I have earlier indicated, some of it is very likely exaggerated. In that regard -

(a) the deceased's deteriorating health may be accepted, but that did not mean that all of his drawings, designs and the like were entirely valueless;

(b) the mess at the factory may also be accepted, and even the presence of dust, but it does not follow that the drawings, designs and the like were entirely valueless - particularly those stored in an organised way in the A1 filing cabinet;

(c) the fact that many of the drawings and designs are likely to have related to inventions created some years earlier does not mean that all of them must therefore be valueless - as was confirmed in the evidence of Mr Hartley, the inventions at Hilton Manufacturing, at least, are still in use;

(d) similarly, the financial position of System Dynamics and the fact that the deceased owed rent on the factory at the time of his passing in June 2019 does not necessarily say anything about whether designs, drawings and the like might conceivably have had value;

(e) for that matter, it does not seem to me to be likely that, at the time, the defendant knew much about the details in the financial and other records that were pressed upon Mr Hartley in cross-examination or, for that matter, in the tax returns of the deceased or System Dynamics that were sought to be emphasised during the trial;[360]

(f) as earlier indicated, the defendant's evidence about 'estrangement', the 2013 letters and the deceased's statement about getting rid of the factory seems to me to have been exaggerated;

(g) as I have also noted, there was no evidence that the defendant ever asked Mr McClure, Mr Pass, Mr Marchio or his solicitors about whether it was possible that any of the designs, drawings or other such documents might conceivably have had any value; and

(h) the defendant's evidence concerning Mr Hartley and Mr Scott and the funeral and mobile telephone simply says nothing about the potential for any of the designs, drawings and the like in the factory to have had value.

296 A further circumstance pressed by the defendant concerned what was described as having been an offer made to the plaintiff by letter dated 4 October 2019 to purchase the whole of the contents of the factory for half of $25,000,[361] together with the plaintiff's response by letter dated 18 October 2019.[362]

297 The context surrounding the letter of 4 October 2019 seems to me to be of considerable importance. In that regard, on 13 September 2019, AMS wrote to the plaintiff about several matters, but indicated that, at that point, the defendant was 'acting without the formal authority of a grant of representation' and was acting in a manner to ensure 'safe custody of the deceased's home and factory and their respective contents'.[363]

298 As I have earlier noted, subsequent parts of that letter were in unfortunate terms. I imagine that the defendant might point to earlier correspondence of the plaintiff, but I do not consider that to justify the whole of the tone and content of the correspondence sent by his solicitors.

299 The plaintiff responded by letter dated 14 September 2019. I have earlier referred to that letter, and it attracted considerable attention during the course of the trial.

300 Parts of that letter are in strident terms and, as I have noted, senior counsel for the defendant referred to it as 'threatening', although I consider that to be an exaggeration. I cannot imagine that any solicitor would consider the content of such a letter from a self-represented person to be truly threatening. In any event, the plaintiff's letter was preceded by a solicitor's letter that itself carried regrettable content.

301 The plaintiff's letter included the following passage -

... The factory contents include but are not limited to a number of sensitive and security items - for example ... the robot system, the filing cabinets; the filing cabinets containing all business and personal records, banking records, family photographs, engineering drawings and designs required for maintenance of machinery produced and under guarantee ... computer system and software used to operate the robot and associated machinery as well as his library of manuals - details of which are too vast to include and the value of which exceeds any amount owed for arrears of rent ...[364]

302 The cross-examination of the plaintiff and associated submissions of the defendant in respect of that passage owe much to imported notions of strict statutory construction, and little to the reality of the situation. The plaintiff is not legally qualified; nor a statutory draftsperson. Nor, for that matter, is the defendant. The defendant's solicitors were not called to say that they read the letter in any particularly confined or parsimonious way.

303 The passage concerned, of course, refers to 'the filing cabinets', 'engineering drawings and designs', 'computer system and software', the 'library of manuals' and says that there is 'value' which 'exceeds any amount owed for arrears of rent'.

304 In my view, in the circumstances known to the defendant to which I have earlier referred, that passage was perfectly sufficient to put any reasonable prospective administrator on notice that, in due course, any potential value in the items referred to should be investigated. That was especially so, it seems to me, in circumstances in which the day before the defendant had signed an inventory of assets and liabilities which recorded that the estate had debts of $231,143.55.[365]

305 The defendant gave evidence that he 'absolutely' recalled the letter, 'gave it much consideration' and 'absolutely took pause'. He said that was why 'the offer' was put to the plaintiff by letter dated 4 October 2019.[366]

306 Of course, the letter dated 4 October 2019 was sent nearly three weeks later and, in between times, there was correspondence and other dealings between the plaintiff and the landlords of the factory; either directly or via the commercial agents. Among other things, the plaintiff sought advice concerning the rental arrears owing on the factory and 'an opportunity to remove the factory contents'.[367]

307 In that context, the defendant seems to have emailed the owner of the factory directly in the following relevant terms -

Further to this I spoke with Ken Marlo who manages the factories on Wednesday night (18-Sep-2019) and he stated that James said to him he was going to hire a container truck to remove all of the contents of the factory to a secure location. Which runs completely contrary to Dads [sic] wishes re the estate as per his will not to mention without any lawful authority to do so. James has called my number twice in the past week but I am unwilling to speak with him due to potential claims made by him of what was allegedly said.

I'm not sure if a letter needs to be addressed to James informing him of what the current state of play is, and what he is and isn't entitled to do.

I will leave it with your team to decide on a course of action if any.[368]

308 It is sufficient to say that nothing productive thereafter transpired via the plaintiff's attempts to deal with the landlords or, for that matter, to purchase the factory contents.

309 On 18 September 2019, AMS wrote acknowledging earlier correspondence from the plaintiff, including the letter of 14 September 2019. That letter included much language of a strongly dismissive kind, including the following -

Quite frankly your correspondence is disgraceful and undignified and the allegations unworthy of any reply and we will not reply to any such muck raking.

It seems you have disregarded our previous advice that we have only a limited retainer which is to lodge an application for letters of administration, which we have now done. We repeat that we have not received any further instructions and currently hold no further instructions. To threaten action against us including for negligent advice given to our client and collusion is utter nonsense.

For now, we simply state that you are simply just wasting time and increasing legal costs to the estate.[369]

310 Although the letter of 18 September 2019 referred to the plaintiff's earlier letter dated 14 September 2019, it did not acknowledge or respond in any way to the plaintiff's references to 'drawings', 'designs', 'software' and the like within the factory, or the suggestion that it could be valuable.

311 In the circumstances, on 23 September 2023 the plaintiff lodged a caveat over the estate and, on the same day, sought to communicate with the defendant via personal email, as follows -

Hello Simon,

I am writing to you because your solicitors, AMS, have notified me that they have only acted for you in lodging your Application for a Grant of Administration of Dad's estate, and have no further instructions to act on your behalf.

In these circumstances I have no alternative but to send this email to you directly to let you know that I am sorry it has been necessary for me to lodge a Caveat at the Probate Office of the Supreme Court to challenge your Application for a Grant of Administration of Dad's estate.

I understand this means proceedings will commence in the Supreme Court of Victoria to examine your right to the Grant and if your application is unsuccessful, costs orders may be made against you personally, and not against the estate. The costs could be in the vicinity of $20,000.00.

As I am an equal beneficiary with you of Dad's estate, it would be better if you and I were to agree on what has to be done so as to avoid or at least minimize legal expenses. This would have been Dad's wish. The last thing he said to me was that you and I would have to work things out together.

I would like to discuss these things with you (alone) over a coffee, if you can suggest a suitable place, date and time.

Looking forward to hearing from you.

Your brother -

James. [370]

312 The defendant did not take up the offer to meet. In his oral evidence, it was evident that the defendant was, and remains, personally offended that the plaintiff had lodged a caveat.[371]

313 In that regard, two days later, on 25 September 2019, AMS wrote to the plaintiff as follows -

Simon has asked that we write to you to convey:

1. his disappointment at your action to lodge a caveat against a grant of probate being made to him; and

2. to address your threat of legal costs against him.

Prior to our reply to your email we would ask that you once again seek proper legal advice or retain lawyers so that the parties can engage in some meaningful dialogue that actually progresses the matter. If you have engaged a lawyer please pass this letter to your lawyer.

In regards to the additional threat we ask that you refrain from making such threats which are baseless and self-serving. It appears you have a compulsion to continually make threats. We find it extraordinary that the threat precedes your offer of conciliation which in that context would appear to be disingenuous and self-serving.

Your email is full of contradictions and disingenuity. You have commenced a proceeding by lodging a caveat but then proceed to state that the parties should seek to minimise legal expenses. You might be putting the cart before the horse.

Our client does not wish to comment on your latest rantings about "what needs to be done....you and I would have to work things out together" and awaits the statement of grounds for your lodgement of the said caveat. If you would like to communicate those grounds to us we would be only too pleased to pass those to Simon for his consideration.

We, on the other hand would say that your rantings do not constitute a basis upon which you have entitlement to lodge a caveat and we would proffer that unless there is something more by way of the grounds upon which you have lodged that caveat it may very well be you that is confronted by an adverse costs order.[372]

314 It will be apparent from the content of part of that letter that it constituted the defendant's response to the personal email sent by the plaintiff on 23 September 2019.

315 More than a week passed in which there does not appear to have been any correspondence between the plaintiff and AMS. In the meantime, the plaintiff seems to have obtained representation from a solicitor, GR Campbell.

316 On 4 October 2019, AMS wrote to GR Campbell as follows -

I refer to our telephone conversation of 2 October 2019 regarding the estate property, the Caveat lodged by your client and a probable part IV Testator Family Maintenance application your client may bring for a greater share of the estate.

I am instructed to advise you as follows:

1. The Storage and sale of the property at the factory

1.1 The removal and or relocation of the plant and equipment at the factory to the Balnarring property is rejected on the basis that is an extremely costly exercise further hindered by the inadequate storage facilities at Balnarring;

1.2 It is far more economically sensible to sell the contents and equipment of the factory by auction and apply the proceeds of the sale towards the reduction of the Estate's debts;

1.3 In the alternative, your client, should he wish to purchase the entire contents of the factory save for the Triumph motor vehicle, bequeathed in the Will of the deceased to him, he may do so at half the nominal value of $25,000.00 placed on the property by the sales agent. Payment for the property may be deducted from your client's share of his entitlements to the other estate property on finalisation of the estate matters. If your client chooses to purchase the factory property he is solely responsible for that property as at the purchase date but to eliminate any doubt, under no circumstances is the Balnarring property to be used to store anything whatsoever;

1.4 The above preferences are subject to the Landlord's agreement and or consent as he is currently in possession of the property having re-entered the premises.

2. Part IV

2.1 Please advise of any proper basis upon which your client will bring his claim;

2.2 The matters raised by your client thus far about alleged money owed and promises of compensation made to him by the deceased do not provide a basis for a claim under part IV of the Administration and Probate Act 1958. These claims, if true, appear to be debts of the estate, prima facie, grounded in contract and ordinarily dealt with in the employment or contract law jurisdictions;

2.3 Notwithstanding the advice at sub-paragraph 2.2 above, any claim under contract brought by your client would fail, inter alia, given the time lapse and the material period to which it relates is now statute barred: Limitation of Actions Act 1958.

3.1 A Caveat has been, arguably, wrongfully lodged against a grant of representation being made to him. The Supreme Court records, in the first instance, indicated that the lodging Solicitors were Constable Connor and more recently the record has been amended to reflect the Caveator is a self-represented litigant. This may be at odds with the advice that you are now the Solicitor on the record. You are asked to clarify this information.

3.2 The lodgement of the Caveat has already had adverse effects on the estate property and your client is put on notice that costs orders will be sought against him.

3.3 Your client does not have grounds for the lodgement of the said Caveat and it is requested that it is removed immediately.

3.4 In the alternative, your client should provide the grounds for lodging the Caveat as a matter of urgency. The circumstances, including mortgage and lease payments that need to be made and the factory property in the possession of the landlord necessitate that both parties act prudently and with haste.

3.1 He would welcome a round table discussion with your client and the respective legal representatives only but not before your client has articulated all his claims and those claims are considered to be soundly based which they are not at this time;

3.2 He would also welcome the removal of the Caveat prior to entering into formal discussions.

We trust the above information clarifies our client's position and we would welcome an early reply to all the issues raised herein.[373]

(a) the AMS letter of 4 October 2019 did not mention the plaintiff's earlier letter dated 14 September 2019 - particularly, the passage in that letter directed to any value in 'engineering drawings and designs', the 'computer system and software' and 'manuals';

(b) the letter was, in fact, responsive to a telephone discussion between the solicitors on 2 October 2019;

(c) the letter addressed topics apparently discussed between the solicitors, including '[s]torage and sale of the property at the factory';

(d) the letter firmly rejected any suggestion that the factory 'plant and equipment' might be relocated to Llwynfryn, and asserted that it was 'far more economically sensible to sell the contents and equipment of the factory by auction';

(e) in that regard, the earlier discussion between solicitors must have included mention of a proposal made by the plaintiff to the landlords on the same day by which the plaintiff would pay the outstanding rent on the factory (which was then $9,035.04) and relocate 'all of the factory contents' to Llwynfryn;[374]

(f) the letter expressed 'preferences', subject to the agreement of the landlords, for an 'alternative' by which 'the entire contents of the factory save for the Triumph motor vehicle' might be purchased by the plaintiff for 'half the nominal value of $25,000 placed on the property by the sales agent', but that 'under no circumstances' was anything to be stored at Llwynfryn;

(g) it is not obvious that that was any form of practical 'alternative', as the prospect that the plaintiff might have been able to store the contents of the factory anywhere other than at Llwynfryn was not explored in evidence and, of course, it seems that he resides at properties owned by Carole;

(h) at trial there was some exploration of the capacity for the whole of the factory contents to have been stored in the shed at Llwynfryn[375] and, of course, the letter of 4 October 2019 describes the 'storage facilities' at Llwynfryn as 'inadequate' - but the photographs of that shed show it to be easily of a size sufficient to have accommodated the A1 filing cabinet, any other filing cabinets, folders and a computer, and I would have thought that the shed could have been and probably was readily cleaned up and the broken skylight fixed;[376] and

(i) in any event, the so-called 'offer' made in the letter dated 4 October 2019 amounted to no more than an expression of 'preferences ... subject to the [l]andlord's agreement' which were presumably to be further explored in a 'roundtable discussion' (any prospect of which was shortly thereafter flatly rejected by AMS).[377]

318 In my view, the letter of 4 October 2019 was primarily intended to signal a stance that would seek to corral the plaintiff into ultimately accepting that the contents of the factory should be auctioned and otherwise disposed of - which, of course, was the defendant's preference and, in fact, much later occurred. Contrary to the gravamen of the submissions advanced on behalf of the defendant, it did not comprise an 'offer' that could and should have been simply accepted by the plaintiff on or shortly after 4 October 2019.

319 Thereafter, on 7 October 2019, GR Campbell wrote to AMS posing a without prejudice offer in rather complicated terms and which seems to have included reference to matters beyond the estate. In respect of the factory contents, it was proposed that they be relocated to the shed at Llwynfryn.[378]

We refer to your letter 7 October 2019 asserting your client's various claims against the Estate. With respect, we do not recognise that any such claims would be properly based.

Further, your client has to date acted mala fide, without authority and for self-serving motives.

Accordingly, your client's offer of settlement of the illusional claims and disputes lack relevance and do not warrant consideration. All of the other issues raised in your letter are issues for the Administrator, once one is appointed, and will not be considered further.

Your client, by his self-serving actions, has delayed the appointment of an Administrator and by doing so has put the property of the estate at risk of real loss given the mortgage over the property and the rent in respect of the factory. On this basis, your client is asked once more to remove the Caveat he has wrongfully placed on the grant of representation or articulate the grounds for lodgement of the said Caveat immediately.

Please be advised that our client has indicated that he will pursue your client for all losses incurred by the estate as a direct result of his interference and irresponsibility.

Unless the issues preventing the appointment of an administrator are resolved within 7 days of the date hereof our client proposes to make an application to the court for directions and this letter will be used on the issue of costs.[379]

321 By 18 October 2019, it seems that the plaintiff was again self-represented, and had obtained a copy of the defendant's inventory of assets and liabilities. The plaintiff wrote to the defendant concerning 'errors and omissions' in the inventory and said that they could be discussed 'at [m]ediation'. He also requested copies of the valuations obtained for the purpose of preparing the inventory.[380] The inventory referred to '[e]ngineering [p]lant and equipment (at business)' valued at $25,165, but made no mention of any intellectual property.[381]

322 On 22 October 2019, AMS responded. The first point made was that the caveat was 'improperly founded'; and it was said that the defendant would not participate in any mediation until it was removed. Further points were made, including a rejection of any suggestion of 'errors and omissions' in the inventory. The letter concluded as follows -

It would be very helpful if you would set out your grievances and articulate any properly based claims you may have against the estate. Please do not waste any more time by fanciful or irrelevant claims and proposals.

We hope that common sense prevails and you do not continue on a path to singlehandedly escalate the costs and losses to the Estate.

We note we will rely on this and all previous correspondence on the issue of costs.[382]

323 By letter to AMS dated 24 October 2019, the plaintiff addressed a series of matters; some of which had been earlier addressed and some of which related to Llwynfryn.[383]

324 By that point, the terms of the correspondence, on both sides, had deteriorated. As I have indicated, the plaintiff's participation in that mutual slanging match was unfortunate and regrettable; but I consider the solicitors, acting on instructions, to have been more culpable.

325 In any event, AMS's focus in correspondence upon the defendant's narrow conception of the relevant contents of the factory had by then engaged the focus of the plaintiff. He referred to an earlier engagement by the deceased with 'auctioneers/valuers' in connection with an 'attempt' to auction factory contents which, it was said, assessed the anticipated sales proceeds as likely to be of 'low value'.

326 In that connection, the plaintiff addressed the item in the inventory concerning 'engineering plant and equipment', the failure of the defendant to provide the plaintiff with valuations of estate assets, the defendant's refusal to mediate and then attached a proposed letter to the factory landlords proposing to purchase the factory contents for what were described as 'sentimental reasons'. That proposal was not straightforward, and was realistically unlikely ever to be accepted. By that point, however, it is plain enough that the mutual focus had fallen entirely upon the physical equipment in the factory.

327 So much was confirmed by the contents of a subsequent letter from the plaintiff to AMS dated 28 October 2019, in which he estimated the 'best prices that may be obtained from the proposed auction sale of the second-hand, third-hand, and fourth-hand factory contents', all of which was physical equipment seemingly listed by him from memory.[384]

328 In a practical sense, any further consideration of the matter was terminated by the response of AMS on 29 October 2019 in the following relevant terms -

You have obstructed the grant of representation and the administration of the Estate but you continue to put proposals to our client despite being advised repeatedly that until he receives such a grant he is not in a position to give your proposals due consideration.

Our client has made it abundantly clear that he does not welcome your interference, input, suggestions or proposals or any other of your whims and holds you responsible for creating legal costs to the Estate which the Estate will endeavour to recover from you as being unnecessary and in breach of Sections 17, 18, 19, 20, 21, 22, 23, 24 and 25 of the Civil Procedure Act 2010.

We have no idea why you keep pestering our client when he repeatedly tells you he has no authority to act and the reason why he has no authority to act is because you have obstructed his appointment.

Please refrain from making any other offers. Our client is not obliged to consider any offers other than those supported by the Will of the deceased.[385]

329 I should say that the correspondence to which I have referred tends to indicate that there are at least two letters missing from the sequence (and which are therefore not in evidence). Notwithstanding those omissions, I conclude as follows -

(a) the passage in the plaintiff's letter dated 14 September 2019 concerning 'engineering drawings and designs', the 'computer system and software' and 'manuals' was in perfectly sufficient terms to be understood and was not 'buried' such that it could not have been fairly considered and appropriate enquiries thereafter made;

(b) the defendant did not apparently seek any specific advice about the issue, or raise the letter of 14 September 2019 or its relevant passage with any of those whose opinions he sought to emphasise in evidence, namely Mr McClure, Mr Marchio, Mr Pass and Mr Bent;

(c) I do not accept that the defendant gave the letter of 14 September 2019 'much consideration' or 'took pause';

(d) the defendant made no relevant inquiry and most likely dismissed the passage concerning 'engineering drawings and designs', the 'computer system and software' and 'manuals' as insubstantial;

(e) consequently, AMS's letter dated 18 September 2019 referred to the plaintiff's letter dated 14 September 2019, but made no mention of the relevant passage;

(f) further correspondence ensued, including with the landlords and their solicitors;

(g) AMS's letter of 4 October 2019 did not mention the plaintiff's letter dated 14 September 2019 and was not responding to it;

(h) the subsequent correspondence from AMS made no mention of that which the defendant had earlier dismissed as insubstantial and, instead, focussed upon what the defendant evidently considered to be of substance, namely the factory contents which had been listed by the 'sales agent', Mr Bent, and which had been referred to the inventory of assets and liabilities completed by the defendant a short time earlier;

(i) that correspondence - much of which was in very regrettable terms - drew focus away from any consideration of value in the 'engineering drawings and designs', the 'computer system and software', 'manuals' and the like;

(j) while it might have been desirable for the plaintiff to have again raised his opinions concerning the drawings and designs and the like, that does not seem to me to have been necessary, as it does not displace the fact that he had already made the point in writing and it had been dismissed by the defendant;

(k) if the point had been made again by the plaintiff, I expect that the defendant would again have dismissed it for exactly the same reasons that he dismissed it the first time around; and

(l) if the defendant and his solicitors had not 'ignored' and 'steamrolled' the plaintiff, as he put it, and asked him about the asserted value in the 'engineering drawings and designs', the 'computer system and software', 'manuals' and the like, I expect that the plaintiff would have promptly spoken to the content and potential value in that material and otherwise directed the defendant to, at least, Mr Hartley of Hilton Manufacturing, who would likely have confirmed that some of the material had value, as well as that Hilton Manufacturing may well commission additional equipment in the future, if possible.

330 It follows from all of the above, in my view, that in the context of what the defendant knew and must have known, after receiving the letter of 14 September 2019 the defendant ought to have known that at least some of the design drawings and other such documents (and software) in the factory could have had value.

What was the value of the intellectual property?

331 By reference to calculations performed by Mr Jones, forensic accountant, the plaintiff primarily claimed that the value of the destroyed or discarded intellectual property was '$2,527,557 say $2,528,000'.[386]

332 In final address, counsel for the plaintiff handed up a re-calculation that was said to take various criticisms into account. It was submitted that the defendant's criticisms should not be accepted, but that if they were, the value lost was '$360,942 say $361,000' or '$377,274 say $377,000'.

333 By contrast, the defendant relied upon the opinions of Mr Firth, forensic accountant, who initially considered that the value of the intellectual property was likely to have been 'nominal or $nil' just prior to the deregistration of System Dynamics in March 2019.[387] However, the defendant did not ultimately rely upon Mr Firth's first opinion, and submitted that Mr Firth's ultimate opinions were relevant to what any 'documents' would have been 'worth ... in reality'.[388] In his final report, Mr Firth expressed a sequence of bases for the following opinion -

... there was $nil value that the administrator could have extracted from the property, be it goodwill of the business or intellectual property found at the factory or the residence of the deceased.[389]

334 That opinion, of course, did not and could not have taken account of the re-calculation handed up in final address.

335 In that context, in final address, among other things, counsel for the plaintiff -

(a) acknowledged that the value of the intellectual property was 'difficult to calculate';

(b) relied upon relevant parts of the evidence of Mr Hartley, Mr Scott and Mr Jones;

(c) submitted that -

... adverse inferences can and should be drawn, because the documents that would have enabled us to establish that figure more definitively than we have been able to do were destroyed when the removal proceedings were already on foot, and well after the [14] September letter putting Simon on notice as to value.[390]

(d) submitted that an 'opportunity' had been lost, which was said to be similar to a 'chance', but that 'to discount back for an opportunity would ... be inappropriate'.[391]

336 For her part, senior counsel for the defendant submitted, in essence, that the whole exercise was too speculative. In that regard, she variously submitted that -

(a) the nature of value and what any buyer was being asked to buy was 'hypothetical';

(b) the opinion of Mr Jones should be given no weight because he 'knew nothing' about the businesses involved and had assumed that there was a 'buyer out there' and so had assessed value in a manner said to have been 'circular';[392]

(c) Mr Scott had not been a buyer of 'a suite of intellectual property' and was 'interested in a customer base, introductions to customers, reputation';[393]

(d) in that regard, there was 'a difference in the value of trying to sell some drawings into the market as distinct from sell a business';[394]

(e) 'to some extent' it was correct to say that the question was really one of trying to value the loss of a chance;[395]

(f) the evidence of Mr Firth was relevant to, among other things, considering what 'some documents' were 'worth ... in reality';[396]

(g) even if the analysis of Mr Jones were given 'any weight' -

... [any figure] ought to be reduced to a very great degree because ... the loss of chance is - it's very unlikely that it will have come to fruition, and as Mr Firth said, all of this analysis assumes that there's a buyer out there who's willing to pay for the whole suite of documents, or that it can be identified that they've got documents that are of value to them. Whereas what we've got from Mr Scott, for example, is - he had interest in one document.[397]

(h) no adverse inference should be drawn because, among other things, the defendant had not 'disposed of documents for litigious purposes' and there had not been 'a conscious act involved or a reckless act' in 'the face of litigation'.[398]

337 A significant part of that was directly or indirectly based on opinions expressed by Mr Firth, particularly -

(a) that any goodwill in System Dynamics is likely to have been 'personal' to the deceased and now 'extinguished' given that -

... the know-how and methods of doing business appear to have resided in [the deceased's] own mind and does not appear to have been documented.[399]

(b) with reference to losses reported by System Dynamics, 'the capitalised value of the [b]usiness is $nil and the [b]usiness is worth its identifiable business assets';[400]

(c) the 'negative earnings' show that any intellectual property in the business was 'not generating positive cash flows and value', which was said to mean that 'a hypothetical purchaser would be sceptical that the intellectual property had any value';[401]

(d) the 'nature of the drawings and designs' found at the factory (lacking identifying information) means that it is not clear how a buyer would extract value from any design;[402]

(e) if the deceased had not been able to extract value from the business, it is 'even less likely that the [e]xecutor or others' could have done so;[403] and

(f) products and services of the kind provided by System Dynamics are 'gradually superseded' by technology, alternative products and 'solutions'.[404]

338 In that connection, Mr Firth had earlier expressed a preference for the 'relief from royalty' method of valuation; an element of which is the '[f]uture maintainable annual sales revenue of the [b]usiness'.[405]

339 Adopting that method, 'as at 30 June 2015', Mr Firth assessed the value of the 'IP assets' at $8,175.[406] Thereafter, upon the assumption that the revenue of the business decreased to '$nil' over the ensuing four years, Mr Firth assessed the 'intellectual property of the [c]ompany' at '$nil value by June 2019'.[407]

340 In oral evidence, Mr Firth struck me as argumentative and a little reluctant to make concessions. His answers tended to return to the 'modest' revenue of System Dynamics, which was at the heart of his preferred valuation method.[408] He also sought to emphasise that any value in designs was 'extinguished' when the deceased passed. In that regard, he said -

... it wouldn't make sense for someone to pay money for them to have to then use their own intellect to activate the design. So it wouldn't make any sense for a buyer to pay money when they had to then activate it to solve the problem, the new problem.[409]

341 In any event, I have not accepted that the deceased's know-how was not documented. In that regard, I have accepted that the intellectual property was documented in an organised set of drawings, designs and software.[410]

342 Further, I do not accept that all of the drawings and designs lacked identifying information. As I have earlier indicated, I do not consider that suggestion in the evidence of Mr Marchio to be reliable and, in any event, Mr Marchio did not examine 'all' of the drawings and designs. It follows that I do not accept that -

(a) the know-how of the business was wholly within the mind of the deceased and so entirely 'extinguished' upon his passing; and

(b) the nature of the intellectual property was such that a buyer could not have extracted value from at least some of it.

343 As to the losses, the report of Mr Firth seems to have referred to yearly financial records rather than the tax returns of System Dynamics. However, the picture is roughly the same; in that the company appears to have generated losses in almost all of the years for which tax returns have been recovered.[411]

344 On the other hand, it is not uncommon to receive evidence relating to outwardly successful businesses revealing losses year after year such that the business has consistently paid little if any income tax.

345 In that connection, when the loss in 2015 was raised with Mr Scott, who was impressive in his evidence, he replied that it would not surprise him as '[w]e all make an operating loss for some years ... that's good accounting.' Mr Scott also said that the deceased had not been 'really good with money' as he would 'do multiple parts of the job he didn't have to do ... and then he wouldn't get paid for it'.[412]

(a) in 2008 the deceased was 71 years of age and in most of the period under consideration his health seems to have been in decline, particularly in and after 2013;

(b) in that context, it is hardly surprising that in and after 2013 the income of the business seems to have been consistently lower; and

(c) in two out of the four years prior to the deceased's decline, the income of System Dynamics was in six figures and in 2010, when the deceased turned 74, it even made a profit.

347 It follows that there is likely to have been more than one reason for the recorded financial performance of the company in the period under consideration; and I would not conclude from the mere fact that losses are disclosed in practically all years under consideration that a hypothetical purchaser should necessarily have been sceptical about whether the underlying intellectual property could have had any value.

(a) in about late 2015 he had made an offer to the deceased to 'buy his business' for 'about $2 million', which the deceased had rejected;[413]

(b) he would have had to pay 'between $2 and $3 million' if the deceased had been prepared to sell;[414]

(c) in that connection -

1. I would not have needed to conduct due diligence. I would not even have been particularly interested in his financials. I knew his jobs and his work. I also knew his customer base, and the work that having his designs, prototypes and associated documentation and the ability to approach his customers could give me to expand my business beyond the automotive.

2. By way of example, Harry and I together produced various robotic welding cells. They are superior products and, with Harry's drawings, prototypes, tooling and designs I could have provided this as a turnkey bespoke product to numerous new customers to my business.[415]

(d) the idea was that the deceased would help Mr Scott out 'with the engineering and all that sort of stuff' and would not need to worry about 'the money side of things';[416]

(e) he knew who the customers were and the work that the deceased was doing,[417] said that he had not been interested in 'the books' or the 'finances' and explained further as follows -

... I wasn't interested in the books. Our business runs - our businesses don't run like a milk bar where you have - where you sell 10 litres of milk a week or a day and you have the exact cashflow and it's the same, and it goes up and down a little bit through the year but it's basically the same. Our business works like this. Today, I have $1 million job. I get paid a 50 per cent deposit. That's $500,000 I have in my pocket today. I will do the job for the next three, six months. And I get the final payment of the other half million dollars. Sometimes between those - those three or four months, I get nothing in. My business looks like it's going broke. You know, so from one day, I can look like I'm making a massive profit. The next day, I'm making a massive loss. But that's the way the books look.[418]

(f) in that connection, he would not have gone to an accountant, as 'accountants look at the bottom line, and we look at potential ... they can't see potential';[419]

(g) even after the passing of the deceased he might still have been interested as -

... some of the designs of the - um, the - the cylinder-welding machines and that sort of stuff would've been very good - very good business for me.[420]

(h) that said, Mr Scott lost a client in about October 2019 and, at that time, 'had no money'.[421]

349 As earlier noted, senior counsel for the defendant sought to suggest that Mr Scott had been interested in the deceased's customer base, introductions to customers and reputation, rather than in any intellectual property of the business. In that connection, she described Mr Scott as having been interested in the deceased's 'place in the market'.[422]

350 In light of the personality features of the deceased to which I earlier referred (and to which Mr Scott spoke quite directly), any implicit suggestion of a sequence of charming 'introductions' undertaken by the deceased with any associated 'name', 'goodwill' or 'reputation' of a personal or diplomatic kind seems to me to have been rather insecurely founded.

351 Indeed, personality factors of that kind might well have played a part in the proposal advanced by Mr Scott in 2015; in which the deceased would deal with the 'engineering' and 'stuff' and Mr Scott would deal with the 'money' and therefore may have been dealing more directly with the customers or clients.

352 In any event, it was undoubtedly the objective of the cross-examiner to make out the proposition that Mr Scott had been interested only in the deceased's 'place in the market'; and that expression was there used and confirmed.[423]

353 However, Mr Scott did not say that he was not interested in the underlying intellectual property.

354 Further, the 'place' of the deceased's business 'in the market' might be said to have been underpinned by the intellectual property which facilitated the building and supply of robotic inventions.

355 So much was plainly apparent in Mr Scott's witness outline, accepted as his evidence in chief, and in the later oral evidence that Mr Scott gave to the effect that the 'designs' of the 'cylinder-welding machines and that sort of stuff would've been ... very good business for me'.[424]

356 In light of the above, I do not accept that any buyer would have been entirely uninterested in the intellectual property by reference to which the company's inventions were produced.

357 As to the suggestion that the technology was being gradually superseded; that is probably a factor, so far as it goes. However, a suggestion of that general kind was tentatively sought to be developed with Mr Scott in respect of his interest in the business in 2019 and, as I have noted, even then he identified certain designs and 'stuff' as continuing to be 'very good business for me'.

358 The evidence of Mr Hartley is also relevant to the present issue. His written outline of evidence (and annexed letter) spoke to -

(a) the unique and valuable nature of the many inventions installed at Hilton Manufacturing -

Harry was very intelligent, and his solutions to our various manufacturing needs were first class. The equipment that he made and supplied to us was unique and well ahead of its time. We used to try and make sure that our competitors were not aware that we had it, as it gave us a real competitive advantage.[425]

(b) the fact that since 2004, Hilton Manufacturing had paid approximately $840,000 to System Dynamics for 'all machinery, equipment and tooling' and that there was now no information about payments made in the period prior to that because of a change in computer software;[426]

(c) the fact that the machines produced by System Dynamics save Hilton Manufacturing about $1,450,000 per annum;[427]

(d) the value, in 2019, of the intellectual property relating to the inventions installed at Hilton Manufacturing -

1. I was told at that time that following Harry's death all of Harry's diagrams, designs, manufacturing model, drawings, operation manuals, software and computer coding for machinery control had been disposed of and destroyed.

2. This concerned me. I wish that I had been asked before this happened as I would have requested copies of everything relevant to each piece of System Dynamics' equipment that we have. I would have been prepared to pay for this if asked to do so. I am not sure exactly how much, but this documentation was certainly valuable to me.[428]

(e) the fact that Hilton Manufacturing had since 'managed without the documents', but that the documents would have 'helped us significantly' as it 'included information such as detailed parts lists and parts and software specifications';[429] and

(f) his inability to find a replacement company to do what System Dynamics did, and that there is still 'a real gap in the market'.[430]

359 Mr Hartley also gave evidence in relation to the issue of future systems and orders, in respect of which, among other things, he said that Hilton Manufacturing presently needs a new robot polisher for specific truck components which, he said, is 'a product that we would have expected System Dynamics to design and manufacture' at a cost of $260,000 to $300,000.[431]

360 Various aspects of the above were confirmed in the course of Mr Hartley's oral evidence. In particular, he spoke to the 'bespoke' and 'unique' nature of the inventions installed by the deceased and the fact that they could not be purchased 'off the shelf'.[432]

361 Mr Hartley also referred to the loss of 'all of the documentation to the pieces of equipment' at Hilton Manufacturing, and it was quite evident that it had been a concern.[433] As Mr Hartley put it, 'we've managed at a price'.[434]

362 To the suggestion that what Hilton Manufacturing was really missing was 'Harry's know-how', Mr Hartley replied -

Um, and those documents would have helped us too 'cause our - when you're looking at a bespoke piece of equipment like the data that you had on there, they could refer straight back to these - the sketches that we had on the - the previous maintenance schedule. Without those sketches we've got guys starting from [scratch] looking at the machine.[435]

363 In light of the above, the overall position seems to be as follows -

(a) the deceased had been a brilliant inventor, capable of designing and building unique robotic inventions that were very valuable to his clients;

(b) over the years, System Dynamics had supplied inventions to or worked with some very large companies and earned significant revenue - at the very least, since 2004, it had earned about $840,000 from Hilton Manufacturing;

(c) the body of intellectual property underlying those years of work was organised, kept at the factory and continued to be used while the deceased was still able to attend the factory;

(d) that said, the deceased had the potential to be personally difficult, his factory was hardly a modern showroom and, by 2013, he was well into his 70s and his health was starting to decline;

(e) further, he had been and was 'not the best with money' or any kind of insightful business tycoon - in that regard, among other things, he did not engage with the very significant offer made by Mr Scott in 2015;

(f) in that regard, it seems that he did not ever plan to sell or maximise the value of the business, or conceive of the intellectual property as having had a distinct value;

(g) however, the inventions conceived and created by reference to that intellectual property were still operating and perceived by Hilton Manufacturing, at least, as conferring a valuable competitive advantage and, as I have noted, Mr Hartley said that had the intellectual property not been destroyed he would have been prepared to pay for it; and

(h) Mr Scott said that certain designs would have remained 'good business' for him, albeit that by that time, in 2019, he was not in a financial position to embrace the opportunity.

364 In my view, without needing to consider either the evidence of Mr Jones or whether any adverse inferences ought be drawn against the defendant, in the circumstances outlined above I would accept that -

(a) in and after June 2019, at least part of the later destroyed intellectual property must have had a significant value for at least some of the customers of System Dynamics over the years;

(b) indeed, there may well have been other businesses who - like Mr Scott - could see the potential for 'good business' in the deceased's designs and other intellectual property in respect of at least some inventions; and

(c) accordingly, at least part of the significant value of that intellectual property should have been realisable.

365 The next and perhaps more difficult issue is to assess the value of that which has been lost.

366 I have referred to the evidence of Mr Firth; however, it will be evident that I do not accept his opinion that by June 2019 the value of the intellectual property was '$nil'.

367 In contrast to Mr Firth, Mr Jones assessed the value of the destroyed intellectual property at '$2,527,557 say $2,528,000'. In that connection, he was of the view that -

(a) the intellectual property was distinct from the company and had a 'material value';

(b) in that regard, the intellectual property was 'in demand by customers of System Dynamics'; and

(c) statements by Hilton Manufacturing, in particular, are indicative of an 'ability to generate future income' from the intellectual property.[436]

368 That is, of course, essentially consistent with the conclusions reached above by reference to the evidence to which I have referred.

369 As to assessment of the loss, Mr Jones identified the task as 'no different from a general concept of value relating to future income earning capacity - whether this is a listed share or a trading business with physical and non-physical assets ...'.[437]

370 Mr Jones made a sequence of assumptions; the 'major' one being that the intellectual property could be acquired by a comparative or larger organisation and incorporated into the management and consultancy structure of that organisation.[438]

371 I consider the evidence of Mr Scott - to which I have earlier referred - to provide some support for that assumption.

372 Further, by reference to his own research, Mr Jones stated -

4.40 The industry of "Robotics" in Australia is wide-ranging with manufacturers and designers in all forms of robotic activity. System Dynamics Pty Ltd was involved in Industrial Automation and a good example of another organisation involved in this sector is SCOTT TECHNOLOGY which has locations in the major cities of Australia and includes care services such as Preventative Maintenance, Remote Diagnostics and Robot Training.

4.41 However, because of the diversity of robotic applications, there is a high degree of specialisation. System Dynamics Pty Ltd specialised in industrial applications and specifically automated solutions, such as "Pneumatic Tank Lifters" and "Turn-Key CNC Robotic Welding Cells" (Hilton Manufacturing Pty Ltd) and automated welding systems for tanker manufacturing (Hockney & Co).

4.42 These types of products narrow down the field of competition in the industry and demonstrates the difficulties such organisations like Hilton Manufacturing Pty Ltd have had in searching for an alternative supplier to System Dynamics Pty Ltd.[439]

373 In that connection, Mr Scott had said that he received an offer to buy his business from Scott Technology; but had not been interested in selling. He said that Scott Technology had instead bought a business in the western suburbs of Melbourne that is now one of his major competitors.[440]

374 Mr Jones conducted a detailed review of companies that might be potential purchasers of the intellectual property,[441] including Scott Technology, and thereafter explained his calculation of the 'present value of future profits' that, in his opinion, would have flowed from the property lost in the 5 years after 2019; that is, $2,528,000.[442]

375 As the defendant highlighted, that calculation was founded in various conclusions or assumptions, including an allowance for under-pricing and a margin derived from a database concerning the robotics and automation industry in the USA (IBISWorld USA).

376 To a significant extent, Mr Jones' subsequent reports were directed to aspects of the opinions of Mr Firth. However, in his final report, Mr Jones re-calculated the loss upon the assumption that Hilton Manufacturing was 'the sole customer'; which, he said, gave a value of $524,000 or $501,000 depending upon the applicable corporate tax rate. That said, he considered the original valuation of $2,528,000 to remain valid.[443]

377 Many aspects of Mr Jones' opinions were explored in the course of cross-examination. I should say that he was an impressive witness: patient and clear. He made ready and reasonable concessions, particularly about the foundations for some of his calculations.[444]

378 Mr Jones said he would usually value a business, and that it was 'not that common' to value intellectual property on its own'.[445] However, he said that there were cases in which a business may wish to acquire 'simply what might be called the intellectual property as opposed to other trappings of ... the selling entity'.[446] In that general connection, Mr Jones said -

... it is quite common for, ah, especially larger organisations to acquire businesses that hold intellectual property, to acquire the whole, ah, business - in fact, ... acquire the company. Ah, their prime objective is to get that intellectual property, ah, but it may also include the customer base.[447]

379 Mr Jones disagreed that it was 'speculative' to consider that a particular component of a business could come from designs and drawings.[448] In that regard, in respect of the offer made by Mr Scott, he was asked and answered as follows -

Mr Jones, the evidence as it came out from Mr Scott was that the 2.5 million or 2 to 3 million, I think he said, offer that he made in 2015 was for the purchase of the goodwill, name, reputation and the ability to be introduced to customers. Now, that's quite different, is it not, from the purchase of a particular intellectual property asset?---It is, but I suspect that, um, ah, the goodwill, the reputation, the customer base is all linked back to the, um, intellectual property of Mr Vaughan. Without that, he wouldn't have that goodwill, um, that distribution network, that reputation.[449]

380 Mr Jones disagreed with the general proposition that 'goodwill ... dies with you'. He said that it depends upon 'what that person leaves behind' and explained further as follows -

... if, ah, that person leaves behind clearly documented, ah, information that other people can interpret, then, um, the value continues. If that, ah, involves, um, something that's inside somebody's head but hasn't been, um, documented in any format as different formats, um, then it would die with that person. So it all - it all depends on what that person has left. If they've left nothing, there's no value. If they've left something, ah, potentially there is a value.[450]

... there's a whole list of, um, players in the automated machines industry in Australia and New Zealand, with Scott Technology, um, who potentially can interpret what Mr Vaughan actually was doing and what he documented. So I would say that they'd be more interested in acquiring what he actually documented rather than himself. Although, I - you know, I don't want to downgrade Mr Vaughan. I would think that he seems to be a very experienced engineer. But, um, they would have their own engineers who could interpret what he had produced.[451]

382 Mr Jones was asked about the past performance of the business, particularly by reference to the recorded income of System Dynamics in 2014 and 2015. To the suggestion that those records would not sustain an assumption that 'in future years there would be $150,000 worth of orders', Mr Jones referred to the evidence that Hilton Manufacturing needed a new robot polisher and said -

... they need, ah, robot polishers which are somewhere between 260,000 and 300,000. That doesn't, ah, actually agree to, um, all those prior years either. So I'm not sure whether that's - looking at historical results like that is a - is a relevant, um, piece of information.[452]

383 He said that a purchaser would make an assessment based upon all of the available information; but he did not embrace the proposition that the mere size of past orders from Hilton Manufacturing would make an acquiring entity 'think twice about whether it's a real prospect that there's hundreds of thousands of dollars of orders down the track'.[453]

384 In that regard, he confirmed that the interest of an acquiring entity would be in 'future earnings from using [the] intellectual property'[454] and explained as follows -

... the issue with business valuations is actually that they're not about, um, valuing the past. They're about valuing the future. Um, so this is based on future projections of earnings from this intellectual property. Not what occurred in the past in a small company like System Dynamics Pty Ltd.[455]

385 In respect of his 'major assumption' that there would be an acquirer, Mr Jones said -

... the only solution is to see what players in the industry are saying about the intellectual property owned by, ah, Mr Vaughan. Um, and this is a projection based on what they say and - and in particular, the case of Hilton Manufacturing, what they - they say about foreseeable orders. And actually includes their maintenance contracts as well. Um, that's all that can be done in this particular case because there is no - unusually, there is no documentation available as to what that intellectual property actually contains.[456]

386 Mr Jones explained that it went 'beyond Hilton'; because if a big company like that was interested, then others might well have also thought there was value.[457]

387 In that connection, it was evident that Mr Jones had originally been somewhat sceptical that there could be any value in the intellectual property at all, but that he had been 'quite surprised' at the information received, particularly, it seemed, from Mr Hartley, but also from Mr Scott.[458] Plainly, that was of considerable significance in the ultimate opinions reached by Mr Jones.

388 It will be evident that Mr Jones considered the fact that the whole of the intellectual property is now destroyed to be of significance; as, 'unusually', there is now 'no documentation available as to what that intellectual property actually contains'.[459]

389 Of course, that evidence links to a submission advanced by counsel in address; namely, whether and if so what adverse inferences ought be drawn from the destruction of the intellectual property.

390 I have earlier referred to the competing submissions of counsel. Both referred to ss 89A to 89C of the Evidence (Miscellaneous Provisions) Act 1958 (Vic). Counsel for the plaintiff also referred to various authorities.

391 The primary submission of the defendant was that no adverse inference of any kind should be drawn because the intellectual property was not destroyed consciously or recklessly and 'in the face of litigation'.

392 That general submission cannot be accepted. At the very least -

(a) as I have earlier noted, the defendant knew or must have known that folders, other records, filing cabinets and, particularly, the A1 filing cabinet, were still plainly to be seen in the office at the factory and ought to have known that design drawings and the like could constitute intellectual property and so could conceivably have value;

(b) in particular, the plaintiff's letter of 14 September 2019 put the defendant on notice that there could be valuable intellectual property at the factory;

(c) in subsequent correspondence, to which I have earlier referred, it was plain that the plaintiff was flatly opposed to any 'fire sale' at the factory because it 'may not engender a return sufficient to satisfy the arrears';[460]

(d) in the same correspondence, the plaintiff stated -

Your client has an interest incompatible with the due administration of the estate. He has meddled with the estate prior to obtaining a Grant of representation by putting in place a series of events to bring about liquidation of estate assets in order to obtain an early payment without having regard for his responsibility towards me, who is his co-beneficiary and his duty to preserve the assets of the estate when there was opportunity to do so.[461]

(e) on 5 December 2019, the plaintiff commenced proceedings by originating motion seeking several orders, the first of which was -

Pursuant to s 34(1)(c) of the Administration and Probate Act 1958, the Defendant be removed as Administrator of the estate of Henry Geraint Madoc Vaughan.

(f) consequently, it cannot be accepted that on and after 5 December 2019 the only litigation was and would be 'over Balnarring';[462]

(g) further, at that point the intellectual property had not been destroyed -although it would and should have been plainly apparent to the defendant that the plaintiff opposed any 'fire sale' of the contents of the factory and that any such step would very likely become an issue in the litigation; and

(h) nonetheless, in February 2020, the defendant, together with the landlords, authorised the auction and implicitly the disposal of the whole of the contents of the factory, including the intellectual property.

393 I would accept that the final step was not taken with the litigation consciously in the defendant's mind, but that is really because, as I have sought to indicate, the defendant generally dismissed the actions and concerns of the plaintiff as entirely insubstantial, including, I would imagine, the litigation.

(a) the defendant acted recklessly in connection with the destruction of the intellectual property;

(b) as Mr Jones said in evidence, the 'unusual' absence of the documents is of present significance; and

(c) the unavailability of the destroyed intellectual property must adversely impact the ability of the plaintiff to prove what was lost and its value.

395 It follows that the circumstances might generally be thought to be more than sufficient to engage the relevant provisions of the Evidence (Miscellaneous Provisions) Act.

396 In that regard, s 89B speaks of a discretion to rule in order 'to ensure fairness to all parties in the proceeding'.

397 In that connection, the 'ruling' sought by counsel for the plaintiff for the purposes of s 89B(2) was that 'an adverse inference ... be drawn from the unavailability of the document' as well as, perhaps, that 'all or part of a defence ... be struck out'.

398 In that regard, counsel pointed to the whole of the destroyed intellectual property and submitted that -

(a) the Court could 'craft its relief in a manner proportionate to the prejudice suffered by the plaintiff by reason of the destruction';[463]

(b) in that regard -

... the defendant ought not be permitted to set up as a defence to the plaintiff's claim for any alleged inadequacies of proof arising from his document destruction.[464]

(c) 'any gaps that exist in the plaintiff's proof ought to be put to one side insofar as they result from the defendant's own conduct';[465] and

(d) 'adverse inferences can and should be drawn, because the documents ... would have enabled us to establish [the] figure more definitively than we have been able to were destroyed'.[466]

399 It is true that the many submissions of the defendant directed to 'hypotheticals' and 'speculation' have been greatly enabled by the absence of the material which he recklessly enabled to be destroyed. I imagine that the defendant would say that his submissions would have been confirmed by the content of the missing material; but, again, that tends to underline the general unfairness in the circumstances which, as I have noted, have been created by his own recklessness.

400 However, I would not accept that the present circumstances are such that the whole of the defendant's defence in respect of the value of the destroyed intellectual property should be disregarded. Nor would I conclude that it is fair in the circumstances to 'strongly presume' that the missing material would have 'told against him'.[467]

401 The more difficult question is what if any adverse inferences can be drawn and from what document or documents (or software). I accept that the missing material has broadly been apt to magnify the difficulty for the plaintiff in establishing the precise value of that which has been destroyed. However, in my view, it does not follow that all gaps in the plaintiff's proof should be laid at the feet of the defendant.

402 In particular, the plaintiff remained able to call Mr Hartley who spoke to the value in the material lost - at least as it pertained to Hilton Manufacturing - as well as that he would have been prepared to pay for it. However, he did not say what it was that he would have been prepared to pay in respect of the missing designs and drawings.

403 To me, that 'gap', if it can be described that way, does not seem to have come about wholly as a consequence of the absence of the destroyed documents. After all, Mr Hartley remained very familiar with the inventions that had been installed, their value to Hilton Manufacturing, the general value of the missing material and what that meant to Hilton Manufacturing in order that it might continue to enjoy economic and competitive advantages.

404 For the same reason, the submission that the missing material would have enabled the plaintiff to establish the 'figure' definitively should be approached with some caution, at least in so far as it might be said to relate to Hilton Manufacturing which, after all, was a very significant customer or client of System Dynamics in the final years for which records have been able to be recovered.

405 That said, I would accept that the destruction of the missing material means that it has probably been more difficult for the plaintiff to assemble evidence from other historical clients of System Dynamics of a kind similar to that which was given by Mr Hartley. However, that can now go only to an assessment of any figure representing the loss occasioned by that destruction in a rather general way.

406 It follows from the above that I would not conclude that, within the meaning of s 89B of the Evidence (Miscellaneous Provisions) Act, it ensures 'fairness' to all parties to reflexively and rather bluntly infer or conclude that the loss suffered was in any of the precise dimensions variously assessed by Mr Jones, namely $2,528,000, $501,000 or $377,000 or $361,000.

407 In the end, I tend to the view that the approach that is in the present circumstances fairest lies partly in the final sentence of the passage from The Ophelia referred to with approval in Allen v Tobias, namely that the defendant should be taken to be without the corroboration that might have been expected.[468]

408 In that sense, it is rather like one part of the inference that can be drawn in respect of an uncalled witness:[469] that the missing evidence would not have helped the defendant.

409 It follows, in my view, that I should conclude that the missing material would not have supported the contentions of the defendant that any assessment of value would necessarily have been 'hypothetical' or 'speculative'. It does not follow, however, that a conclusion of that kind means that I can conclude precisely how in the missing material that would have been shown.

410 In the same way, it seems to me to be appropriate to embrace the second part of the established approach in respect of uncalled witnesses and, in the present circumstances, be inclined more readily to accept such evidence as there is from the plaintiff concerning the value of the missing material.

411 In the circumstances, of course, Mr Jones identified the issue as being the assessment of a loss of future earning capacity. That assessment arises from what I will shortly come to identify as having been a breach of duty by the defendant. Assessments of that general kind are commonly performed by courts, including by juries in respect of injured plaintiffs.

412 In such a context, it is necessary to bear in mind that the assessment must remain based in the good judgement of the tribunal of fact; not an exercise in pure mathematics or the mere embracing of apparently precise calculations proffered by experts. Evidence of that kind is received for the assistance of the trier of fact, but the trier of fact must make their own judgement of the situation, on the evidence.

413 In that context, I have already concluded that at least part of the significant value of the destroyed intellectual property should have been realisable.

414 For reasons outlined above, I must give weight to the reasoning and figures calculated by Mr Jones.

415 That said, Mr Jones' primary figure of '$2,527,577 say $2,528,000' is, to a significant extent, based on assumptions relating to companies other than Hilton Manufacturing for which no independent and confirming evidence was ultimately called (namely, Willowmavin and Hockney & Co).

416 Further, the figure of $2,528,000 stands in very stark contrast to the kinds of annual earnings generated by System Dynamics in the five years or so prior to the passing of the deceased.

417 I accept that that position must have been related partly to the deceased's age and declining health and partly also to his overall lack of financial acumen. After all, he seems still to have been working at times in 2016 and 2017, but there are presently no tax returns or other financial records relating to earnings generated in that time. In addition, as Mr Scott put it, the deceased would 'do multiple parts of the job he didn't have to do ... and then he wouldn't get paid for it'.[470]

418 Further, I accept that an established company in the market - such as, but not limited to, Scott Technology Ltd, referred to in evidence by Mr Jones[471] - might well be better placed and better able to exploit the intellectual property in a manner that was likely to generate greater returns than had historically been generated by the deceased.

419 In addition, of course, Mr Scott had made an offer to purchase the business in 2015 for $2,000,000 and knew that he would have needed to pay between that and $3,000,000 to purchase it. At that time, as senior counsel for the defendant sought to emphasise, the major or perhaps only active client of System Dynamics was Hilton Manufacturing, but Mr Scott obviously knew the business pretty well and plainly considered there to be enough there that the offer reflected a significant potential in the combined businesses to generate very significant earnings and hopefully profits into the future.

420 However, the disparity in the figures as well as the unproved parts of the foundations for Mr Jones' primary assessment are such that I cannot embrace that or any figure approaching it as representing the actual dimension of the loss likely to have been suffered when the intellectual property was destroyed in February 2020.

421 In that context, it seems to me that it was appropriate for Mr Jones to have done what he did and prepare re-calculations directed to prospects in respect to Hilton Manufacturing. Ultimately, of course, that resulted in figures of about $361,000 and $377,000 depending upon the corporate tax rate applicable to the acquiring entity.

422 A significant part of those figures is attributed to the foreseeable order of a robot polisher, which Mr Hartley confirmed in his written and oral evidence.[472] In that regard, he confirmed that 'robot polishers' had previously been supplied, that they were 'unique' and that he had been unable to get other businesses to supply one.

423 Realistically, with robot polishers having been supplied to Hilton Manufacturing in the past, designs and drawings relating to one or more of those inventions were very likely to have been among the intellectual property destroyed, and the circumstances seem to me to have been such that an acquiring entity would have been perfectly positioned to take advantage of that opportunity. Accordingly, that opportunity - which Mr Hartley identified by reference to the figures of $260,000 to $300,000 - should be considered to have been more than likely lost.

424 The other figures in Mr Jones' re-calculation relate to 'prospective other projects' and 'annual maintenance contract'. Mr Hartley referred to discussions about a new machine to pierce holes in stainless steel straps, but that prospect seemed less firm than the robot polisher.[473]

425 That said, in light of Mr Hartley's evidence about the number of inventions previously purchased and the value attributed to them by Hilton Manufacturing, it is realistic to conclude that one or more such projects would have been supplied in subsequent years. However, I would discount the assessed prospect that such earnings would have been $154,500, $159,135, $163,909 respectively. No evidence was given concerning what Hilton Manufacturing would have paid for any such inventions and it was not wholly clear whether such an invention was the same or sufficiently similar to any of those previously supplied.[474]

426 That leaves the issue of the 'annual maintenance contracts'. In that regard, senior counsel for the defendant made much of the evidence of Mr Hartley that there were probably no maintenance contracts.[475]

427 However, the evidence was that service and preventative and other maintenance was a big concern for Hilton Manufacturing and that it was desirable to get 'the experts' to attend to it.

428 I also accept that as a significant customer of System Dynamics right up until, it seems, 2017, it is most likely that the intellectual property relating to the inventions installed at Hilton Manufacturing -

(a) remained at the factory until it was destroyed in about February 2020; and

(b) would have been relevant to the preventative and other maintenance required to be performed on those inventions.

(a) Mr Hartley was taken to a number of items in the available records that seemed to be related to maintenance, but to be of a modest dimension;

(b) Mr Jones plainly believed that Mr Hartley had suggested that 'maintenance contracts' would continue at $100,000 per annum, but resiled from that belief somewhat in the course of questioning;[476]

(c) Mr Jones acknowledged that the absence of such contracts would mean that an acquirer would likely take a different view of the situation and seek to acquire such contracts at the time of acquiring the intellectual property;[477] and

(d) it does seem to me to be one thing for the maintenance to be performed by an 'expert' who created the invention, and perhaps another for it to be performed by another 'expert' - although I accept the evidence of Mr Jones that any such acquirer 'would have their own engineers who could interpret what [the deceased] had produced'.[478]

430 Realistically, the above factors do tend to suggest that the annual maintenance figures identified in Mr Jones' recalculation should be discounted.

431 Overall, of course, the figures are also affected by the contribution basis, tax and discount rate. That means that there are several variables and, in any event, the issue is what would have been derived by the estate from a purchasing entity rather than what System Dynamics would itself have generated in such circumstances.

432 It seems to me that overall the loss arising from the likelihood that an acquirer could have purchased some or all of the subsequently destroyed intellectual property and so been able to supply the robot polisher, some further projects and some degree of maintenance to Hilton Manufacturing in the five year period after mid 2019 is appropriately assessed at $250,000.

433 That leaves the loss in respect of such projects with other clients or customers of System Dynamics as well as new clients.

434 In that regard, of course, Mr Scott gave evidence that the designs relating to 'cylinder welding machines and that sort of stuff' would have been 'very good business'[479] and, as I have noted, Mr Jones said that an acquiring entity would be likely to have their own engineers who could interpret the designs and drawings.

435 Further, as I have indicated, the evidence did seem to be that the deceased had continued to work at times in 2016 and 2017, and not only in respect of inventions supplied to Hilton Manufacturing. Although there were no financial records relating to that work, Mr Scott referred to a significant 'R&D job' for 'ARC Reo' that he thought commenced in 2015 and 'went for nearly 2 years'.[480] It may be that the work to which Mr Scott referred also included a job for 'DayCor'; that he said started 'pre-2014' and went on 'for a long time'.[481]

436 Such evidence suggests that the intellectual property generated over a very long period of time in respect of unique and valuable projects for significant clients right up until about 2017 must have had some further value at the time of the deceased's passing, even if specific evidence of the kind given by Mr Hartley was not given about it.

437 In that regard, I would accept that it was likely that some value could have been realised by an acquirer in or after late 2019 or into 2020.

438 That said, there is little in the way of evidence about how readily any such opportunity would have been able to be exploited by an acquiring entity and with what other current or former customers and other companies.

439 Realistically, the longer ago that any intellectual property was generated the lesser the prospect that any value in it could be realised.

440 Further, the absence of the deceased may well have affected the potential for it to be known whether or not any particular intellectual property could have subsisting value and, if so, from what other entity such value might be able to be realised and in what way. It is one thing for it to be appreciated that Hilton Manufacturing and other businesses with which the deceased might have done business in the years shortly prior to his passing could perceive a subsisting value in such of the intellectual property as might relate to them, but perhaps another for businesses or clients in a much more historical category.

441 In that connection, I am not at all sure that the plaintiff could have stood in as any appropriate substitute assessor or advisor in respect of businesses other than Hilton Manufacturing, in respect of which he does seem to have had a connection, in light of his reduced and at times likely patchy involvement since about 2008.

442 For these reasons, while I accept that such a further component must have existed and had a value, in the circumstances in which the precise evidence of that loss very likely cannot now be adduced, I can do no better than estimating that the value of it for disposition to an acquirer should have been at least $50,000.[482]

443 In light of the above, I would assess the value of the lost intellectual property at $300,000.

Did the defendant breach his duty as administrator?

444 It was common ground between the parties that an administrator is relevantly in no different position to a trustee.

445 In that regard, a trustee or administrator is -

... required both to observe the terms of the trust and, in doing so, to exercise the same care as an ordinary, prudent person of business would exercise in the conduct of that business were it his or her own.[483]

446 In that connection, Dal Pont, Law of Executors and Administrators, states -

At common law, a personal representative who causes pecuniary loss to creditors or beneficiaries by a breach of duty is liable in damages for devastavit. 'Devastavit is a Latin word meaning "he has laid waste" ... [which in law] means a mismanagement of a deceased estate by the legal personal representatives of the estate squandering or misapplying the assets in the estate'. The action is one in tort, and therefore rests on proof of loss or damage stemming from the commission of a legal wrong.

A 'legal wrong' here presupposes that the personal representative has failed to meet the applicable standard of care. The law countenances that not every error by a personal representative amounts to such a failure; errors of judgment, when attended by bona fides and a lack of evident negligence, do not compromise legal wrongs for this purpose. Hence, they do not render the representative liable for devastavit. Assuming that the standard of care has not been met, though, a representative is liable on a devastavit - not only for loss arising out of a direct misuse of the assets by spending or consuming them, but also for their waste by such acts of negligence and wrong administration as will disappoint the claimants.[484]

(a) prior to and from 4 November 2019 when he became administrator, the defendant knew that folders, other records, filing cabinets and, particularly, the A1 filing cabinet, were in the office at the factory and he ought to have known that the design drawings and the like could constitute intellectual property and conceivably have subsisting value;

(b) in that regard, on about 14 September 2019 he was notified by the plaintiff that the design drawings and the like could be valuable, but dismissed that notification and thereafter unreasonably failed to examine the material or make any reasonable enquiry concerning it;

(c) in February 2020, the defendant authorised and essentially enabled the destruction of the whole of the intellectual property;

(d) in the circumstances, that was done recklessly and with no proper regard to the likelihood that some of that intellectual property could be valuable; and

(e) to a significant extent the relevant actions of the defendant were influenced by his personal antipathy for and general dismissiveness of the plaintiff - who, at that point, was the only other real beneficiary.

448 In addition, the intellectual property had a value of $300,000, and the squandering of it was not a mere error of judgement. It was, in my view, a wilful act undertaken recklessly and an ordinary, prudent person of business would not have so acted.

449 In my view, after receipt of the letter of 14 September 2019, an ordinary prudent businessperson in the management of his or her own affairs would have -

(a) investigated the valuable intellectual property remaining at the factory;

(b) discerned that it could have significant value; and

(c) taken steps to protect it with a view to later realising its value for the benefit of the estate and, consequently, the benefit of the beneficiaries.

450 It follows that the squandering of the intellectual property caused loss to the estate and, in turn the beneficiaries (one of whom, of course, is the defendant) and the defendant must be liable in damages for the loss suffered.

451 As I have noted, clause (e) of the schedule to the will directed that -

(a) on the vesting day, an option 'to purchase Llwynfryn from [the] estate for market value as determined by a sworn valuation of Llywnfryn obtained by [the] Trustee' be offered to the defendant;

(b) in the event that the defendant did not wish to purchase Llwynfryn, the plaintiff 'may be given the option to buy Llwynfryn from [the] estate on the same conditions offered to [the defendant]'; and

(c) in the event that neither the defendant nor plaintiff wished to purchase Llwynfryn, 'then [the] Trustee is to sell Llwynfryn and distribute the proceeds'.

452 At the time of the deceased's passing, the ANZ Bank held a mortgage over Llwynfryn.

453 In the period after the deceased's passing, the defendant's spreadsheet discloses several steps taken by him in connection with Llwynfryn, particularly -

(a) obtaining the Kensley valuation (in which Llwynfryn was valued at $1,800,000);

(b) dealing with the ANZ Bank in connection with the mortgage; and

(c) speaking with a real estate agent, 'Ian', concerning Llwynfryn (who is recorded as having 'provided an estimate value between $2.5-$2.75 [m]illion').[485]

454 In that period, Rheinallt and Angharad each had indicated their intention to renounce their appointment as trustee of the estate and completed the necessary paperwork.

455 For his part, the defendant applied to be appointed as administrator with the will annexed. In that regard, by his affidavit and associated inventory of assets and liabilities dated 13 September 2019, the defendant deposed to -

(a) the value of Llwynfryn (stated to be $2,250,000); and

(b) the liability in the nature of first mortgage held by the ANZ Bank (stated to be $207,161.36).[486]

456 In that context, towards the end of a letter dated 24 October 2019 (to which I have earlier referred), the plaintiff referred to the inventory of assets and liabilities and noted that the defendant had not provided him with a sworn valuation in order to allow the stated value for Llwynfryn of $2,250,000 to be 'confirmed or challenged'. For various reasons, the plaintiff thereafter expressed the view that the 'land value' was 'between $1,800,000 and $2,000,000' and suggested 'perhaps we can agree on a mid-value of $2,000,000'. The letter thereafter sought to advance an 'offer' that was in rather confusing terms, and included alternatives.[487]

457 As I have already noted, AMS responded by accusing the plaintiff of 'pestering' the defendant ('when he repeatedly tells you he has no authority to act') and asked the plaintiff to 'refrain from making any other offers'. In that context, AMS stated that the defendant was 'not obliged to consider any offers other than those supported by the [w]ill of the deceased'.[488]

458 I should perhaps pause to note, of course, that clause (e) of the schedule to the will provided for the trustee (or administrator) to make certain offers to the defendant and in turn the plaintiff, but did not specifically provide for the trustee (or administrator) to 'consider' offers made by the plaintiff (or defendant).

459 In any event, letters of administration with the will annexed were granted to the defendant on 4 November 2019.

460 On 6 November 2019, AMS wrote to the plaintiff enclosing a copy of the letters of administration with the will annexed 'for your information'. The letter stated relevantly as follows -

In accordance with the wishes of the Testator, the Administrator invites you to make an offer to purchase the Estate property in the terms set out in the Will.

Please be advised that no offer contrary or inconsistent with the terms set out in the Will will be given consideration.

If you indicate that you are interested in buying the property, you will be buying the property at a value to be arrived at by a sworn Valuer appointed by the Administrator.[489]

461 Remarkably, that 'offer' was plainly not in accordance with the terms of clause (e) of the schedule to the will, albeit that it purported to be 'in accordance with the wishes of the Testator'.

462 In any event, the plaintiff responded and confirmed his 'interest' in 'purchasing your client's half share interest in the estate' and again asked for the sworn valuation.[490] A few days later, the plaintiff repeated that request and attached a list of certified valuers for the Balnarring area.[491]

463 Subsequently, by a letter dated 6 November 2019 but received by the plaintiff on 26 November 2019, AMS stated relevantly as follows -

In regards to numbered point 2 our client acknowledges your intent and further notes that the Will, notwithstanding the failed charitable trust it attempts to establish, provides to both of you, pre-emptory rights for the purchase of Llwynfryn.

In the circumstances, our client has decided that a public auction will be held but prior to the fall of the hammer, the pre-emptory rights may be exercised by the parties in the order provided in the Will at the price established at the auction.

To eliminate doubt, at the finish of the bidding, our client will make a decision as to whether he wishes to purchase the property and if he chooses not to do so, the property will then be offered to you prior to being offered to the highest bidder.

The successful purchaser, whether or not being a holder of a pre-emptory right, will be required to pay 10% deposit on signing of the Contract of Sale with the balance of the purchase price payable 60 days thereof.

Our client's decision to proceed in these terms is consistent with the vesting provisions of the failed trust and the distributions thereunder.

We once again respectfully state you seek your own legal advice and desist from making any more gratuitous threats.[492]

464 In the course of the proceeding, the proposal advanced in that letter was treated with some degree of wry amusement. Whatever else might be said about it, the proposal was plainly not in accordance with clause (e) of the schedule to the will, which was one of the points made in extensive terms in a responding letter sent by the plaintiff dated 26 November 2019.[493]

465 The plaintiff there sought to suggest that he had accepted the defendant's earlier 'offer' and so had 'complied with the terms of the [w]ill' and was entitled to purchase the defendant's half interest in the property. The plaintiff indicated that unless the defendant consented to him arranging for an inspection of Llwynfryn by a certified valuer, the plaintiff would shortly apply to the Court 'to have [the defendant] removed as administrator on the basis of his non-compliance with the terms of the [w]ill'.[494]

466 On 29 November 2019, AMS replied in terms that, among other things, rejected what was described as the 'offer to purchase Llwynfryn' and stated that the defendant was 'in the process of appointing an Estate Agent' in order that 'Llwynfryn [could] be auctioned as soon as practicable'.[495]

467 It is remarkable that not one of the above proposals was strictly in accordance with clause (e) to the schedule of the will; least of all the proposal sought to be advanced in the letter received by the plaintiff on 26 November 2019.

468 In the context described, on 5 December 2019 the plaintiff commenced proceedings by originating motion seeking, in substance, that the defendant be removed as administrator or, alternatively, that the defendant as administrator obtain a sworn valuation of Llwynfryn and then offer the plaintiff 'an option to purchase the [p]roperty at the price set by the sworn valuation'.

469 By a summons dated the same day but filed on 8 December 2019, the plaintiff sought an injunction restraining the defendant as administrator from auctioning Llwynfryn unless, in substance, he had obtained a sworn valuation and offered the option to the plaintiff.

470 The plaintiff's summons was made returnable on 17 December 2019, and each party was represented. The plaintiff was represented by John Lai-Mun Leung of counsel and the defendant was represented by Richard Boaden of counsel, instructed by AMS.

471 At trial, Mr Leung was called and gave evidence on behalf of the plaintiff. The defendant did not call Mr Boaden.

472 In his witness outline,[496] which was received as his evidence in chief, Mr Leung explained that he was engaged by the plaintiff to act on a 'direct access' basis and, on 13 December 2019, received an email from Mr Boaden attaching a letter from AMS which proposed terms to resolve the dispute the subject of the summons. In particular, the letter stated as follows -

In the interests of resolving this matter and prior to avoidable costs being incurred, our client instructs that we offer that the sale [of the property] proceeds as follows:

1. We will collaborate with you in giving instructions to a registered valuer to be chosen by both you and our client and in default to be chosen by the President of the Australian Valuers Institute, to determine the current market value of the property;
2. Llwynfryn will then be offered to our client Simon to purchase at the established value;
3. If Simon declines to exercise his pre-emptive option, Llwynfryn will then be offered to you to purchase at that valuation;
4. If you decline the option to purchase, the property will then be put on the market by way of a public auction.[497]

473 That afternoon, Mr Leung responded by email relevantly as follows -

Broadly, my client is agreeable to your client's proposal but for the following, that:

• the cost of the valuation is borne by the estate (as per the Will);
• the parties make best endeavours to have the valuation completed within 30 days or as soon as practicable thereafter
• the summons be dismissed and your client pays my client's costs thrown away (being $287.30 for the summons and $300 for my time in preparing submissions, which I have already completed).[498]

474 Mr Leung acknowledged that the contents of later emails suggested that he and Mr Boaden may have spoken on 13 December 2019; although he did not recall speaking with him at any relevant time. He said: '[i]f I did speak to him, I do not recall when that was or what either of us said to the other'.[499]

475 Further emails ensued, particularly in relation to costs. Mr Leung also sought to clarify that 'settlement' would only be as to the summons, not the originating motion 'at large'.[500]

476 On 16 December 2019 at 12:26pm, Mr Boaden responded by email as follows -

Thx John

I have instructions to agree

Will you prepare the paperwork?

I'm currently stuck in a Horrendous mediation ....

Richard[501]

477 In his witness outline, Mr Leung expressed the opinion that 'the creation of a contractual relationship occurred following receipt of Mr Boaden's email'.[502]

478 Shortly thereafter, Mr Leung emailed the court as follows -

Dear Associate

The parties have agreed on terms for the disposition of the summons and will not require the hearing before her Honour tomorrow.

I note that both myself and counsel for the defendant (Richard Boaden, cc'd) are indisposed at the moment but we will forward minutes of consent tonight or tomorrow morning.

Kind regards

John Leung

Barrister[503]

479 Mr Boaden later responded confirming the defendant's agreement with the contents of Mr Leung's email to the Court.[504]

480 The following morning, Mr Leung emailed minutes of consent orders to the Court that he described as having been 'settled by myself and Mr Boaden'. He said that signed minutes would be forwarded in due course.[505]

481 The defendant and plaintiff each later provided signed copies of the minutes,[506] which were relevantly in the following terms -

1. The hearing of the summons set down for 2:15pm on 17 December 2019 is vacated.
2. The plaintiff's summons filed on 8 December 2019 is dismissed.
3. The Defendant will obtain a sworn valuation of the property at 21 Renown Road, Balnarring (Property) to determine the current market value of the Property (Valuation) as follows:

a) the plaintiff and defendant will agree upon the identity of a registered valuer to undertake the Valuation; > > b) in default of agreement, the valuer will be chosen by the President of the Australian Valuers Institute; > > c) the parties will use best endeavours to have the Valuation completed within 30 days of this order or as soon as practicable thereafter; > > d) the cost of the Valuation will be borne by the Estate of Henry Geraint Madoc Vaughan (Estate).

4. In accordance with the Will of Henry Geraint Madoc Vaughan dated 1 May 2013 (Will):

a) the defendant will offer to himself (in his personal capacity), an option to purchase the Property at the Valuation; > > b) should the defendant (in his personal capacity) decline to exercise his option to purchase the Property, the defendant will offer to the plaintiff an option to purchase the Property at the Valuation; > > c) should the plaintiff decline to exercise the option to purchase, the defendant will sell the Property by way of public auction.

5. The defendant pay the plaintiff's costs of the summons fixed in the sum of $587.30 out of the residue of the estate.
6. The defendant bear his own costs of the summons.

482 In oral evidence, Mr Leung was asked whether 'circulating the minute to the court in anticipation that the court would make orders' had 'brought to an end the negotiations' and he responded relevantly as follows -

Well, that's probably not correct. In terms of [my understanding of] what had happened, and what generally happens in these sorts of situations, is the form of the order is really a matter of form, um, and in terms of negotiations, yes you negotiate the form of order, but in terms of the substance of agreement, that had happened earlier. That would have been my understanding and that's my understanding now.[507]

483 In any event, the Court later responded proposing that orders be made relevantly in the following form and sought that the parties 'confirm whether or not they agree' -

OTHER MATTERS: The Court notes that the parties have agreed to the manner in which the property at 21 Renown Road, Balnarring (Property) is to be valued and sold under the will of Henry Geraint Madoc Vaughan dated 1 May 2013 (Agreement), as follows:

(a) The Defendant will obtain a sworn valuation of the Property to determine its value (Valuation) as follows:

(i) the plaintiff and defendant will agree upon the identity of a registered valuer to undertake the Valuation;

(ii) in default of agreement, the valuer will be chosen by the President of the Australian Valuers Institute;

(iii) the parties will use best endeavours to have the Valuation completed within 30 days of this order or as soon as practicable thereafter;

(iv) the cost of the Valuation will be borne by the Estate of Henry Geraint Madoc Vaughan (Estate);

(b) In accordance with the Will of Henry Geraint Madoc Vaughan dated 1 May 2013 (Will):

(i) the defendant will offer himself (in his personal capacity), an option to purchase the Property at the Valuation;

(ii) should the defendant (in his personal capacity) decline to exercise his option to purchase the Property, the defendant will offer to the plaintiff an option to purchase the Property at the Valuation;

(iii) should the plaintiff decline to exercise the option to purchase, the defendant will sell the Property by way of public auction.

THE COURT ORDERS BY CONSENT THAT:

1. The hearing of the plaintiff's summons filed on 8 December 2019 (Summons) set down at 2:15pm on 17 December 2019 is vacated.
2. The Summons is dismissed.
3. The defendant pay the plaintiff's costs of the Summons fixed in the sum of $587.30 out of the residue of the estate.
4. The defendant bear his own costs of the Summons.[508]

484 It will be evident that the proposed form of orders simply moved parts of what had been proposed to be orders of the Court into 'other matters'; in particular, the parts of the earlier proposed orders relating to the obtaining of a sworn valuation and the subsequent offering of options to purchase.

485 AMS and Mr Leung each subsequently confirmed agreement in the form proposed,[509] and the Court thereafter made those orders.[510]

486 In oral evidence, it was suggested to Mr Leung that the dismissal of the summons by operation of the Court's orders had brought the negotiations to an end and he replied as follows -

I wouldn't - no, I wouldn't quite say that just as a matter of - I don't mean to be pedantic but the - the negotiations had finished. The - the summons is the further - is the furthering of the agreement. The dismissal of the summons is the furtherance of the agreement but the - it doesn't end the negotiations. Negotiations had ended before the summons is dismissed.[511]

487 In any event, Mr Leung later clarified his evidence as follows -

... it's really not my place to give evidence on this but the question of whether there is or isn't an agreement is a - is a different matter. And, ah, you know, that's a legal question but as a matter of course, from counsel's point of view, if my instructions are changed or if the other side's instructions are changed, then you'd, um, you'd have to roll back up to court and - and deal with the - deal with it as you saw fit. And it might be at that point you would raise the point, 'No, we had an agreement,' or maybe you wouldn't. It just depends on the circumstances. Ah, it, yeah - it's Masters v Cameron point, really.[512]

488 In that context, the parties developed competing submissions concerning the terms of the agreement pursuant to which the summons had been settled. That said, it was essentially common ground that by the making of orders by the Court the trust had vested by 17 December 2019, 'at the latest'.[513]

489 For his part, the plaintiff contended that 'the agreement [was] by exchange of emails in writing and the orders are implementing that agreement'.[514] He submitted that the letter of AMS which commenced the 'exchange of emails' had included a 'term' to the effect that the parties would 'collaborate ... in giving instructions to a registered valuer', and that it was plain enough that that had not subsequently occurred. The plaintiff submitted that the parties had agreed at that earlier point, and in terms that included a requirement to 'collaborate', and that it did not matter that the Court's orders did not refer to any such term.

490 The plaintiff described the defendant's position as being that 'this is no more than a third-level Masters v Cameron agreement and that no terms have been signed'.[515]

491 The plaintiff's fall-back position was that it was necessary to imply terms to the same general effect, as well as some further terms in respect of the process by which the valuation would be prepared.

492 In written submissions, the plaintiff referred to various implied terms of the former kind, namely -

(a) 'that the defendant would collaborate with the plaintiff in giving instructions to Mr McLean, including by informing the plaintiff of all instructions and information given to the valuer by the defendant, and by permitting the plaintiff to provide his own instructions and information to the valuer';

(b) 'that each party agrees ... to do all such things as are necessary on his part to enable the other party to have the benefit of the contract'; and

(c) 'a duty of good faith and reasonableness' comprising 'an obligation to act honestly and with a fidelity to the bargain'.[516]

493 As to terms of the latter kind, namely in respect of the process by which the valuation would be prepared, the plaintiff contended that terms to the following effect should be implied -

(a) that the process for determining the value of Llwynfryn be conducted by reference to objective criteria and honestly, bona fide and reasonably; and

(b) that the sworn valuation of Llwynfryn to be obtained by the defendant include an explanation of the basis upon which the registered valuer had determined the value of Llwynfryn.[517]

494 I should add, for completeness, that the plaintiff also contended that the alleged terms should also be embodied in or as 'further trustee duties'.[518]

495 The defendant contended that the terms of the agreement were in the form of the orders made by the Court and that it was not necessary to imply any further terms (or duties).

496 The present issues are primarily factual and, to that extent, should be approached objectively. The principles concerning when terms may be implied as a matter of fact are well settled.[519]

497 The sequence of events by which the dispute the subject of the summons was settled are not entirely unfamiliar.

498 The plaintiff issued the summons and the solicitor for the defendant wrote in terms that were partly argumentative and partly seeking to advance an incipient proposal to resolve the matter.

499 In that regard, the letter purported to put a 'Calderbank offer' that included the 'collaboration' term, but also included terms based, to some extent, in clause (e) of the schedule to the will. The additions - or embroidery - concerned 'collaboration', the choosing of a valuer by the President of the Australian Valuers Institute if the parties could not agree and the conduct of a public auction if both parties declined to take up the option offered. The letter said nothing about costs other than that the defendant proposed to rely upon the letter in respect of that issue if the offer were not accepted.

500 Emails ensued in respect of the issue of costs and leaving the originating motion on foot. Nothing was thereafter said about 'collaboration' or any other part of the original letter, including its embroidery.

501 Counsel for the defendant ultimately indicated that he had 'instructions to agree', but also asked counsel for the plaintiff to prepare the 'paperwork'.

502 To me, viewing the correspondence, that suggests that there was agreement in principle, but that the final expression of the precise terms of the agreement would be in the 'paperwork'.

503 The subsequent email by counsel for the plaintiff to the Court, and his evidence at trial, suggest that he subjectively understood the position to be different. However, I consider the objective circumstances to suggest that the position was, in fact, as I have described.

504 In that connection, the email to the Court stated that 'we' - meaning both counsel - would forward 'minutes of consent'. That suggests that the 'paperwork' would be the minutes of consent orders.

505 Counsel for the plaintiff later forwarded minutes of consent identified as having been 'settled' with counsel for the defendant. Counsel for the plaintiff did not recall any relevant discussions. In oral evidence, he said that he had 'drafted something' and that he believed that the minutes went to the Court 'unchanged'.[520] He also said that the draft had gone to the plaintiff and that the plaintiff had subsequently signed it.[521] In that regard, it is evident that the relevant draft was signed by the plaintiff personally.[522]

506 Those minutes were in terms that were in various respects different to the more rudimentary terms earlier expressed in the letter from AMS. In particular -

(a) proposed orders 1 and 2 dealt specifically with vacating the hearing date and dismissing the summons;

(b) proposed order 3 addressed the sworn valuation and identified a specific agreement to agree upon the identity of a valuer, but also included terms directed to using 'best endeavours' to have the valuation completed within 30 days and the cost of the valuation;

(c) proposed order 4 was, in substance, like the relevant part of the earlier letter concerning the making of offers and subsequent 'public auction', if required - however, it included various linguistic refinements, including to specify that the process was 'in accordance with' the will and to identify the specific capacity in which the defendant would be receiving and declining the option to purchase; and

(d) proposed orders 5 and 6 dealt specifically with the costs of the summons.

507 In the present context, the plaintiff tended to suggest that there was essentially no difference between the terms expressed in the earlier letter of AMS and the subsequent proposed minutes of orders other than that the latter omitted reference to 'collaboration' and otherwise dealt with the costs of the summons. However, it will be evident that the differences are, in fact, quite extensive. In particular -

(a) proposed order 3 is a substantially altered and significantly refined expression of the earlier single term directed to the appointment of a valuer and the conduct of the valuation; and

(b) proposed order 4 is a notably refined and re-expressed version of three earlier terms directed to the offers and any 'public auction'.

(a) omits the words 'collaborate ... in giving instructions';

(b) considerably narrows the area of required future agreement, namely to the identity of the valuer; and

(c) includes newly specified requirements for the parties to 'use best endeavours' to have the valuation completed within 30 days and for the costs to be borne by the estate.

509 The form proposed in the minutes was re-expressed by the Court in the manner to which I have earlier referred and specifically confirmed thereafter by each party before finally being made.

510 In my view, a consideration of the objective circumstances makes it clear enough that the agreement between the parties was made in the written terms comprised in the orders finally made by the Court and not before. It follows that the terms of the agreement made between the parties did not include any term requiring that they 'collaborate ... in giving instructions to a registered valuer'.

511 Further, in circumstances in which the parties had plainly turned their minds to the valuation and the precise process by which it would be obtained and expressed in the orders and other matters in very specific terms, it is neither necessary nor appropriate to find that any of the further suggested terms should be implied.

512 In addition, it seems to me to be highly unlikely that parties of the present kind should be taken to have contemplated that any failure by the appointed valuer to, for example, prepare a report in a manner that was not reasonably competent, should give rise to rights between the plaintiff and defendant as opposed to against the valuer.

513 I would not accept that it is necessary to imply any of the various terms pressed in argument by the plaintiff; nor do I accept that the relevant duties of the administrator should be understood to be imposed in such specific and prescriptive terms.

514 Further, to the extent that, for example, a term to the effect that each party agreed to do all such things as are necessary to enable the other to have the benefit of the contract should be taken to be implied by law, for reasons which will come to be explained, I do not accept that any such term was subsequently breached.

The first McLean valuation and associated evidence

515 The day after the Court orders were made, the plaintiff wrote to the defendant directly and attached a list of valuers in the Balnarring area. The letter proposed that Opteon Valuers be engaged.[523]

516 The plaintiff was later critical of the defendant for engaging Mr McLean, but that was after he had provided his valuation. Mr McLean's name was on the plaintiff's list of valuers and, indeed, the plaintiff seems to have subsequently approved his engagement.[524]

517 By letter dated 23 December 2019, AMS wrote to Mr McLean relevantly as follows -

We act for the estate of the deceased.

The estate is ordered by the Supreme Court of Victoria to obtain a valuation of the property by a registered valuer.

Accordingly, you are requested to undertake that valuation.

We understand that your fee is $1,000 plus GST and would appreciate if you could confirm the amount prior to undertaking the work.

To assist you we attach documents as follow:

1. Current council rate notice; and

2. Copy title.

Our client will provide you access to the property at a mutually agreed time. Please advise us of your preferred time.

We would be pleased to provide you with any additional information you may require but we would request that you do not confer or consult with James or Penni (Carol) Dunn and that all communications will either be with Simon Dunn Vaughan or us. [525]

518 In evidence, Mr McLean said that the defendant called him shortly prior to his receipt of the letter of instruction from AMS; although, despite a degree of theorising about the matter, he did not appear to have any real memory of that discussion.[526]

519 It also seems that Carole wrote to Mr McLean prior to the date of the letter of instruction. For various reasons, she sought to suggest that 'the condition of the property [was] poor'.[527]

520 In substance, Mr McLean said that he ignored that letter because it was necessary for him to undertake his valuation 'impartially' and 'without regard to any ... outside influences'.[528] On the other hand, Mr McLean said that he did not then mention the letter to anyone because 'it had private and confidential on it'.[529]

521 In her evidence, however, Michelle had said that she met Mr McLean at the inspection of Llwynfryn on 7 January 2020 and that he had asked 'who is Carole Dunn?' and mentioned that he had received correspondence from her that he took to be 'an attempt to influence [his] decision to under-value'.[530] When asked about that evidence, Mr McLean said -

I may have said I received a letter from her but I didn't disclose anything on it. I wouldn't.[531]

522 Mr McLean was asked further questions and, in respect of the conversation with Michelle, ultimately said 'I honestly can't remember'.[532]

523 I accept that Mr McLean spoke with Michelle about the letter from Carole. In my view, however, he has no real memory of the circumstances in which he received that letter or whatever he said to Michelle about it.

524 On 6 January 2020, Mr McLean received an email from the defendant attaching the undated letter from Homes & Acreage.[533] It was evident that the document had been produced by Mr McLean, not the defendant, and shortly prior to the commencement of the trial.

525 Mr McLean was asked whether he had asked the defendant about 'market interest' in the property and initially said 'I may have, I don't recall', and then said that he could not remember whether the letter was unsolicited or he had asked about market interest. He said that he did not normally take any notice of letters of opinion from real estate agents.[534]

526 On the strength of that evidence I tend to think that it is unlikely that Mr McLean asked the defendant about 'market interest' - certainly not whether any real estate agents had seen the property and expressed any views - and much more likely that the email and attached letter were unsolicited.

527 The email from the defendant to Mr McLean stated, relevantly -

I have included a letter from Home [sic] and Acreage re what their impression of the property [was] for your information.[535]

528 The letter was from Grant Perry of Homes & Acreage and included the following -

I thoroughly enjoyed meeting with you to discuss the sale of your lovely home.

You have a wonderful property, which makes a fabulous first impression.

Homes & Acreage have a strong and thorough marketing campaign that is designed to Systematically target all of the buyer market to bring you the absolute best price. We firmly believe that our acreage property marketing has a far greater reach through our equine and rural contacts/database and our effective use of social media, sponsorship deals (Boneo-Park Equestrian Centre - major sponsor) and local area marketing channels.

...

After speaking with you and discussing recent sales and current listings in a comparable market, we are of the belief that your property should be advertised as $2,500,000 however I feel our specific buyers may well see value above this range.

Should you instruct us to market and sell your property we would negotiate the absolute best possible price for you as we are highly skilled in negotiating acreage property sales as the local acreage specialists.

Should you have any further questions please feel free to contact us.[536]

529 The underlined words were highlighted in the document in green; or yellow; which feature was pursued in cross-examination.

530 In that regard, Mr McLean was 'positive' that he had applied the highlighting when he provided the copy letter to AMS in July 2023, and not before. The cross-examiner got about half of the way through a suggestion to the contrary and Mr McLean bristled and said -

Excuse me, are you accusing me of being a liar? I am telling you I did it on the day that I sent it to AMS.[537]

And you're saying you highlighted that paragraph in this letter?---When I sent it.

When you sent it. Why would you do that, it doesn't say anything in the email that you received - - -?---No, I was just pointing it out to them, I was forwarding it to them so I thought I will just highlight it so they can see, you know, basically that it was in accord with what - it was over and above what I valued it at.

I'm not sure I follow why you would do that when you're not asked to enter into - that makes it sound like - I thought you just said that you didn't take any notice of what any agent said?---When I did the valuation, no, because I have been a valuer since 1976 and an estate agent. I know what my sales people used to do, they would be putting it higher figure to try and get the listing and then getting them to come down.

So if that's the case why would you be highlighting this?---Just to give an indication of what they are referred to, the value they had referred to.

But what's the importance of that, it doesn't sound like it is responsive to the email you were sent?---Sorry?

What's the importance of it?---It was just to let them know what had been said by the agent.

To let them know that the agent said something similar to you, is that right, is that the point?---Well, yeah, basically, yeah.[538]

532 With respect, little of that explanation makes any real sense. Mr McLean dismissed the opinions of such agents, and explained why that was so, but felt it necessary to highlight just such an opinion to a solicitor because it was similar to his own.

533 Mr McLean was rather old-fashioned and I gained the impression that he had been concerned about giving evidence. It was evident that he had prepared a chronology to assist him,[539] and I tend to think that he had been seeking to reconstruct the events involved prior to giving evidence. It was apparent that, in fact, he did not have any real memory of several of those events, and perhaps more than that.

534 In those circumstances, Mr McLean struck me as defensive and with a tendency to reconstruct on the run. That said, I would not conclude that it was untrue that he applied the highlighting in July 2023. Nor would I conclude that Mr McLean was a dishonest or even generally unreliable witness. I have, however, found it necessary to consider Mr McLean's evidence with some care; and it will be evident that there are some parts of it that I cannot accept.

535 As I have noted, Mr McLean inspected Llwynfryn on 7 January 2020 and Michelle was also there. In cross-examination it emerged that the defendant must also have been there.[540]

536 On 9 January 2020, Mr McLean provided the first McLean valuation to AMS.[541]

537 Mr McLean referred variously to the title particulars, zoning and shape of the land. In respect of highest and best use of the land, the first McLean valuation stated -

... the highest and best use of the land would be to subdivide the General Residential land in to either one or two lots which would require an extension roadway off Renown Road to provide access to the General Residential lots and also the Green Wedge land over the existing E-1 easement of Way, Drainage, Sewerage, Water, Gas and Telephone.[542]

538 The first McLean valuation thereafter referred to the services, improvements and basis of assessment. In respect of the latter, it referred to sales of similar 'green wedge' properties as well as 'general residential sales'. Several sales were identified. Mr McLean thereafter certified as follows -

The sum of Two million three hundred and fifty thousand dollars ($2,350,000) is a fair and reasonable current market value for the subject property, with the existing improvements in their current condition thereon, as at the 7th January 2020, subject to any limiting conditions and assumptions as stated in this Report.[543]

539 In that connection, Mr McLean confirmed, among other things, that he had made all appropriate enquiries and that the opinions expressed in his report were 'independent and impartial'.

540 In his oral evidence, the defendant said that the first McLean valuation was 'too rich for [his] blood' and confirmed that it had been 'out of [his] price range'.[544]

541 The sequence of events following AMS's receipt of the first McLean valuation is not wholly clear; however, it is clear enough that later on 9 January 2020 the first McLean valuation was provided to the plaintiff.[545]

542 The plaintiff responded by letter in which he criticised the choice of Mr McLean as valuer. Among other things, he said that Mr McLean had quoted the cheapest price and that he had 'curiously escalated his fee'. Neither point seems to have had any substance. The plaintiff said that the report was 'unacceptable' and proposed to obtain another report 'for comparison'.[546]

543 The same day, AMS responded by email as follows -

I refer to your letter of today regarding the valuation of the Balnarring property.

I am perplexed by your ambigous [sic] and inconclusive commentary.

I will seek instructions from my client so that I can provide a formal response to you but I do not see that there is provision in the Will of the deceased for disputing a valuation of a sworn valuer or the flexibility of obtaining a further valuation. Please point me to the relevant provision if you hold such opinion. Further, it is noted that the Court Orders made by the Honourable Justice Nichols on 17 December 2019 provide for the Defendant [Simon Dunn Vaughan] to obtain a valuation of an agreed valuer [to] which you did agree by your email of 20 December 2019 at 2:22 pm. Dare I say it, my client has complied with the said Court Orders.

In the alternative you may wish to convey your decision to purchase or not purchase the property at that valuation, notwithstanding that our client retains the first pre-emptory right of purchase.

Otherwise, am I to conclude from your comments that you are not interested in purchasing the property at the valuation price and you have assumed that the property is to be sold to a third party?

Specifically your comments:

"His report is unacceptable.

I am disturbed that the estate might be led into expectation of a false return with resultant sale costs of up to $50,000.00."

Please clarify your comments.

Do you think the valuation is too high or too low?

How do you think that sale costs can be avoided? Does the sale process including by way of auction not ensure that the highest possible price is achieved? Surely, you would agree that the obligation of the Trustee (Administrator) is to ensure that the highest return to the estate is obtained. In the event the property is to be put up for auction the sale costs would be pretty much settled no matter whether the property sold for a little less or a little more ...

What valid reason do you hold for stating that Hugh McLean's valuation is unacceptable. Are you suggesting it is incorrect or that he is unsuitably qualified?

Am I to assume that you wish that my client agrees to you obtaining another valuation that is more to your liking?

My client has complied with the provisions of the Will and the Court Orders and is required to do no more in regards to obtaining a valuation.

You are now required to remove the Caveat.

Your admission that you have again trespassed on the property continues to be of concern and you are put on notice once more that you will be asked to explain any possible involvement in missing property. You are reminded once more that you are not to trespass on the property. You are in breach of the law in this regard and you seem to take no notice of my constant warnings.

I will formally reply to you shortly but in the interim please provide answers to the above questions and refrain from making any more unintelligle [sic] irrelevant comments.[547]

544 It is not clear what the plaintiff said in response, but later the same day AMS wrote -

I have no idea why you would claim that you are being obstructed when you are in fact the one obstructing the process.

A process ordered by the Court. Please respect the Court Orders.

They are for the Defendant to obtain a valuation with your agreement which you provided and in the absence of same on the appointment of a valuer by the president of the Valuer's Institute. The Court did not order that one of the beneficiaries should go valuer shopping.

Please desist from any further nonsense. That is, stop wasting time and adding to the costs of the administration.

You were asked very simple questions.

Do you wish to purchase the property at the McLean valuation? Or have you assumed that the property should now be offered for auction?[548]

545 Again, the response of the plaintiff is not apparent; however, the same afternoon AMS appears to have written further as follows -

I will not reply to your last rantings save that I am entitled to seek clarification from you on unintelligible matters and assumptions prior to me obtaining instructions from my client.

However, I do have an obligation to advise that yesterday afternoon I did receive a telephone call from Mr Eric Chen of Gaden's Solicitors for the ANZ Bank (the Mortgagee of the Balnarring property) who asked about the status of the administration.

You may wish to advise me of your intentions about your current Court application so that I may convey that information to Mr Chen for his client to make an informed decision.

There is no doubt whatsoever that you are obstructing and delaying the administration of the estate and that any costs flowing from your actions will be recovered.

When can I expect answers to the questions forwarded earlier today?[549]

546 It is sufficient to say that the baiting of the plaintiff in the course of that sequence of correspondence was not appropriate.[550]

547 In any event, the plaintiff seems thereafter to have pursued a number of complaints concerning the first McLean valuation in aid of a contention that another valuation should be obtained. In particular, the plaintiff asserted that -

(a) Llwynfryn is 'floodprone [sic]';

(b) the defendant had breached his obligation to 'collaborate' with the plaintiff in instructing Mr McLean; and

(c) the first McLean valuation was so defective that 'the valuation cannot be considered a valuation' for the purposes of the will.[551]

548 Respective counsel seem later to have become involved and the plaintiff ended up being granted access to Llwynfryn in order that Christine Cox of Opteon Property Group might prepare another valuation.[552]

549 In the correspondence to which I have referred -

(a) the plaintiff evidently considered that he should be able to negotiate a sale of the property in some manner, especially if he obtained a different valuation from Ms Cox;

(b) the plaintiff did not ever say whether or not he would purchase Llwynfryn at the value assessed by Mr McLean; and

(c) in any event, the defendant had sought to suggest that he retained a 'pre-emptive right to purchase the property, which ... he [had] not relinquished'.[553]

550 At trial, the plaintiff gave evidence in chief as follows-

MS GATFORD: ... And finally, a question in relation to what you would have done if you'd been formally offered the option to purchase the Balnarring property at the McLean valuation and you'd been told that that was the only way you could buy it, but otherwise, Simon would be legally entitled to sell it at auction. What would you have done?

...

WITNESS: I would've bought it.

HIS HONOUR: At the McLean valuation?---At the McLean valuation.

If it'd been offered to you?---That's correct.[554]

551 Later, during cross-examination, the plaintiff confirmed that -

(a) he had said that the first McLean valuation was unacceptable to him;[555]

(b) he would have liked to have purchased the property 'at that value, if that was the only value that was offered' and if he had been told that 'there is no other option';[556]

(c) in response to the letters from AMS asking whether he was interested in purchasing the property (at the first McLean valuation), he 'didn't say anything';[557]

(d) if 'the court had ordered' that the first McLean valuation was 'the only valuation ... accepted by the court', he 'would've bought it';[558]

(e) if he had sought to purchase Llwynfryn, he would have sought to 'buy out ... half' as he and the defendant are 'equal beneficiaries' and he did not have $2.4 million;[559]

(f) in that regard -

I couldn't pay $2.35 [million]. I would hope to be offered it [Llwynfryn] at half that value. That's what was the only option.[560]

(g) to be clear, he could not have paid $2.35 million because 'that's way too much' but he could have paid $1.2 million.[561]

552 In any event, on 20 March 2020, Ms Cox provided the Cox valuation, in which she considered sales of comparable properties and valued Llwynfryn at $1,650,000.

553 The Cox valuation does not refer to any potential to subdivide the general residential blocks on the land, or actively take up the suggestion that the land is flood prone. It does, however, annex a map prepared by the Mornington Peninsula Council in respect of 'designated flood prone areas'.[562]

554 After receipt of the Cox valuation, correspondence between the plaintiff and AMS resumed much as before, until the whole debate seems to have been halted by the intervention of the global pandemic.[563] In that general connection, in his oral evidence, the plaintiff said that after receipt of the Cox valuation 'the negotiation was on the table'.[564]

555 In that overall context, Mr McLean produced the Homes & Acreage letter in the lead up to the commencement of the trial, and it emerged in his evidence in chief that his report did not include what he described as 'the workings'. He said, '[n]one of my reports ever have the workings in them'.[565]

556 By 'workings', Mr McLean seems to have meant some of the content of his handwritten 'field notes' containing his calculations as well as some other documents which, it transpired, were contained in a well organised folder which Mr McLean brought with him when he came to give evidence. Parts of that material were later tendered into evidence by the plaintiff.[566]

557 In those circumstances, Mr McLean gave more in the way of evidence in chief than the other witnesses in the case; in the course of which he sought to explain the method by which he had come to his opinions. However, the fact that aspects of that account and the supporting material had not previously been revealed meant that counsel for the plaintiff sought and were granted some time to examine it.

558 In cross-examination, Mr McLean was challenged in some detail concerning a range of issues, some of which I have already mentioned. In respect of his valuation methodology -

(a) Mr McLean was taken to one identified comparable property in respect of which an error was highlighted - which he immediately acknowledged and for which he apologised;[567]

(b) Mr McLean was asked about other aspects of his approach, including individual adjustments of value based on experience (as opposed to averaging);[568]

(c) in that context, Mr McLean acknowledged that those adjustments were not in the first McLean valuation and so the reader would not know precisely how he arrived at the value of $2,350,000;[569]

(d) Mr McLean was taken to a particular figure which he could not explain;[570]

(e) Mr McLean was taken to differences between his approach and that of Mr Baxter, the valuer retained by the plaintiff, and stuck by his own approach and said that he was not criticising Mr Baxter;[571] and

(f) it was ultimately suggested to Mr McLean that he had adopted 'a most unusual shandy methodology designed to get as close to Simon, your client's, advised expectations as possible', to which he again bristled and replied with the question '[a]re you questioning my integrity?'.[572]

559 In re-examination, in respect of the differences between his own approach and that of Mr Baxter, Mr McLean said -

Well, it's almost a unique property, I mean, there are very few properties where you will have a green wedge zoning and then another part being general residential on the one title. It is - and then you've got to have a look at it and work out the best way of valuing it. Here I believe that the general residential has a higher value than green wedge, and I had to take that into account whereas Mr Baxter had put one rate across the whole property in terms of the land value in his direct comparison and summation method.[573]

560 As to the suggestion that the property was 'flood prone', in cross-examination Mr McLean was taken to his second report ('second McLean valuation'), prepared by him in 2023 and in which he had valued Llwynfryn at $2,900,000.[574] In the second McLean valuation, he had noted that the land is in 'Mornington Peninsula flood plain area 32', which had not been noted in the first McLean valuation.

561 In some ways similar to the import of other evidence to which I have earlier referred, Mr McLean's explanation as to why it was that he had included that reference in his second report did not make a lot of sense. He said that it had been brought to his attention that the property was 'supposed to be a flood area' but that, in his view, the 'subject property [was] not a flooded property' and so he did not consider the point to be relevant. That said, he had nonetheless adverted to that seemingly irrelevant point in his second report.[575]

562 In the circumstances described, the plaintiff submitted that the first McLean valuation was 'invalid'.[576]

563 In that regard, the plaintiff's written submissions contended that the first McLean valuation adopted a 'highly unusual and faulty valuation methodology' in the course of which Mr McLean had gone outside his expertise.[577]

564 It was also said that Mr McLean had 'made factual errors' and had also used 'inappropriate comparable properties', 'unexplained uplifts in his values of comparable properties and unexplained land values'. In that connection, it was submitted that the first McLean valuation was a '"garbled narrative" invented by him' that had not been undertaken 'by reference to objective criteria and honestly, bona fide and reasonably' and that it was, accordingly, 'defective', 'impeachable for mistake or miscarriage, and void and of no effect'.[578]

565 In oral address, counsel for the plaintiff outlined the submission rather more soberly as follows -

There's a process and substantive error in McLean's valuation, and they're interlinked. The McLean valuation, we say, is not a valuation that was performance of the agreement, at its most simple. Both for procedural reasons, because there were implied terms that required the reasoning to be demonstrated in order for the dispute to be resolved.

The real question for the McLean valuation is, is it in accordance with the terms of the trust? And is it in accordance with the terms of the contract? And we say no to both of those questions. There are mixed procedural and substantive questions in there, but the bottom line is that it's not in accordance with either of those requirements. Either the contractual requirements or the trustee requirements.[579]

566 To a considerable extent, the above contentions were directed to the various terms sought to be implied into the agreement between the plaintiff and defendant; such as, that the first McLean valuation would be 'to the standard provided by a reasonably competent valuer' and performed 'by reference to objective criteria and honestly, bona fide and reasonably'. I have determined that no such terms should be or were implied.

567 The real issue, in my view, is whether or not the first McLean valuation was obtained in performance of the express terms of the agreement.

568 In that regard, the agreement was made between the administrator of the estate who was also a beneficiary of the will,[580] and the only other person who could be offered an option under clause (e).

569 The agreement, in terms, addressed the manner in which Llwynfryn could and would be 'valued and sold under the will' and therefore for the purposes of that clause. In that sense, as between the only presently relevant beneficiaries, the agreement superseded the terms of clause (e).[581]

570 In that connection, the agreement relevantly required that -

(a) the defendant 'obtain a sworn valuation of the [p]roperty to determine its value';

(b) the plaintiff and defendant agree upon the identity of a registered valuer to undertake the valuation; and

(c) the parties use best endeavours to have a valuation completed within 30 days of the Court's order or as soon as practicable thereafter.[582]

571 As I have earlier noted, the parties agreed upon the engagement of Mr McLean and he provided his valuation within 30 days of the order of the Court. Consequently, the present issue is whether the first McLean valuation is a 'sworn valuation' that determined the value of Llwynfryn.

572 I accept that a valuation not performed bona fide, or which was, on its face, so grossly defective that it could not be said to have been a 'sworn valuation' of the subject property, might not constitute a 'sworn valuation' obtained in performance of the agreement. However, the circumstances in which any such conclusion could be reached seem to me to be quite extreme.

573 In the present instance, the plaintiff broadly seemed to point to -

(a) the provision by the defendant of the Homes & Acreage letter to Mr McLean;

(b) the highlighted reference in that letter to various words and the sum of $2,500,000;

(c) a correlation - of sorts - between that figure and the valuation figure ultimately stated by Mr McLean;

(d) queries in respect of the methodology employed by Mr McLean in the course of his valuation, as well as errors identified in some figures in his 'workings'; and

(e) the difference between Mr McLean's first valuation and the other valuations undertaken by Mr Kensley, Ms Cox and Mr Baxter respectively.

574 In a general sense, all of that lay behind the suggestion that Mr McLean's report was 'designed' to get as close to his client's expectations as possible. That, of course, was correctly perceived by Mr McLean as a challenge to his integrity. In that regard, it went much more to his bona fides in producing the first McLean valuation than to any suggestion that he had simply erred innocently in producing that report.

575 Notwithstanding the earlier observations concerning the manner in which Mr McLean gave some of his evidence, it would be an extraordinarily strong thing to conclude that his report was not produced bona fide or that is was so defective that it did not constitute a sworn valuation of the property.

576 As to his bona fides, Mr McLean rejected the specific suggestion made and I accept that evidence.

577 More specifically, I accept that Mr McLean highlighted the words and figures in the Homes & Acreage letter at the time at which he provided that letter to AMS in July 2023. It follows that the letter was not produced to him in that form by the defendant, and he did not highlight those words and figures at the time of producing his report. I also accept that he ignored the Homes & Acreage letter when preparing his report.

578 Further, I am not persuaded that the various features of Mr McLean's methodology examined in the course of cross-examination demonstrate the first McLean valuation to have been either not bona fide or grossly defective.

579 In that regard, Mr McLean readily acknowledged an error in his notes relating to one among several comparable properties, and he also acknowledged that there was another figure in his (many) notes that he could not now explain.

580 Nonetheless, Mr McLean stood by his methodology generally and explained that while there were differences between what he and Mr Baxter had done, he was not criticising Mr Baxter.[583] Whatever else might be said about other aspects of Mr McLean's evidence, his evidence concerning the methodology adopted in the course of his report and the differing approach of Mr Baxter presented as reasonable and professional.

581 I should say that Mr Baxter, who was an impressive witness, gave evidence in a manner which was much more indicative of polite professional difference between himself and Mr McLean than the more confrontational way in which Mr McLean came later to be cross-examined.

582 In respect of the issue of whether development costs should be spread over only the two residential lots, which emerged as particularly controversial in the course of the cross-examination of Mr McLean,[584] Mr Baxter had said -

I'm not a planning expert and a cost expert in development. Ah, but yes, you would say that the costs then would be the cost of subdividing the front lot [off] and having the two lots.[585]

583 Mr Baxter later said that he did not agree with Mr McLean's approach and re-stated the need for 'a professional in [the] field to give ... the [C]ourt certainty of what those costs would be'. [586]

(a) valuing properties is 'a very subjective task';[587]

(b) he was 'not casting aspersions on Mr McLean's ... professionalism';[588]

(c) he could not draw the same conclusions as Mr McLean had drawn from the sales evidence referred to in order to get to the figure of $2,350,000;[589]

(d) however, he was not saying that the report of Mr McLean was 'defective'.[590]

585 I should, perhaps, add that early in the cross-examination Mr Baxter had confirmed that he did not consider the property to be flood-prone.[591]

(a) Mr McLean acknowledged in his evidence that his 'workings' were not in his report; and

(b) Mr McLean's 'field notes' were produced from the folder that he brought to Court.

587 It follows that Mr Baxter, who had given evidence many days earlier, had not had the opportunity to speak to those workings and documents in his own evidence.[592]

588 However, the various circumstances to which I have referred are far from a secure foundation from which serious findings of the kind sought by the plaintiff could be made.

(a) Mr McLean is a certified valuer;

(b) the first McLean valuation correctly identified the task, the title particulars, relevant features of the property and several comparable properties;

(c) the first McLean valuation included a sworn certification immediately prior to the stated opinion that the value of the property in December 2019 was $2,350,000; and

(d) in the course of that certification, Mr McLean confirmed the opinions expressed were 'independent and impartial'.

590 Mr McLean's 'workings' were in his 'field notes' rather than his report but, in my view, that does not go anywhere near supporting the contentions that he lacked bona fides or that his report was grossly defective.

591 Further, the whole idea that Mr McLean was so swayed by the Homes & Acreage letter or the defendant, or both, to abandon his professionalism and simply adopt a particular figure in his report (which, I note, is not the same figure as that stated in the Homes & Acreage letter) seems to me to be exceptionally far-fetched.

592 I should say that I also consider it to be contraindicated by the profusion of handwritten calculations and other notes produced from the folder which Mr McLean brought to Court; which were plainly directed to the task which he had been given.

593 In that regard, in the ordinary course of things, it is much more likely that those notes were generated in order that Mr McLean might honestly and conscientiously perform the required task, rather than as some kind of elaborate cover for trickery or dishonesty.

594 In the circumstances described, I do not regard it as significant that the valuations relevantly reached by Mr Kensley, Ms Cox and Mr Baxter were different to the first McLean valuation.

(a) the contention that the first McLean valuation was 'invalid' must be rejected; and

(b) the first McLean valuation was a sworn valuation for the purposes of the agreement.