Plaintiffs v Defendant

2 These proceedings were commenced by writ on 9 April 2010. The plaintiffs' claim is based on proprietary estoppel. They allege that, after their father's death, the defendant promised and undertook to them that he would ensure that provision was made for them from Kenneth's estate. The plaintiffs claim that, in reliance on those promises and undertakings, they each refrained from obtaining legal advice as to their rights, and from making an application for provision from Kenneth's estate, under Part IV of the Administration and Probate Act 1958 ("the Act"). They claim that, arising from the distribution by the defendant to himself of the farming land, and water rights which are appurtenant to the land, the defendant holds the land and water rights, on constructive trusts for each of the plaintiffs, in such proportions as are to be determined by consideration of the matters contained in s 91(4) of the Act.

3 The farming property, with which this case is concerned, is a family property known as "Hopefield" at Pyramid Hill. That property has been in the Harrison family for more than 130 years. The property comprises 42 parcels of land, which in total amount to some 15,000 acres. Before his death, those parcels of land were owned, in differing shares, between Kenneth, and his three brothers, Noel, Clifford and John Harrison, each of whom survived Kenneth. Two of those parcels were held by John Harrison in his own name, and four parcels were held by Clifford Harrison. The remaining 36 parcels of land were held, in various combinations of co-ownership, by Kenneth and his brothers, as tenants in common.

4 Kenneth and his three brothers also owned, as tenants in common, a substantial quantity of water shares which they used to irrigate the farm. Under the legislation in force at the time of Kenneth's death, those water rights could only be transferred to another land owner. They were thus considered to be attached to the land of the person or persons who owned them. In 2006, the legislation was amended, to enable the sale of water rights to persons who were not land owners. That process was referred to, in the evidence in this case, as the "unbundling" of water rights. It was common ground in the case that the water rights, in which Kenneth had an interest, passed to the defendant under the terms of Kenneth's will. Subsequently, at the time that the water shares were unbundled, the water rights, which were held by the defendant and his three uncles as tenants in common, were divided, so that each of them owned their own water rights. As a result, the defendant owns 1,564.1 megalitres of high reliability water rights.

5 Kenneth and Jillian Harrison had six children. Two of them died, in separate fatal accidents, when they were children. The remaining four children are the defendant ("Christopher"), the second plaintiff ("Sue"), the first plaintiff ("Louise") and the third plaintiff ("Kathryn"). Louise and Kathryn are twins. Christopher is 49 years of age, Sue is 47 years of age, and Louise and Kathryn are 43 years of age.

6 The plaintiffs and the defendant grew up in a house known as "Freedom Fields", which was located on one of the parcels of land which comprised the farm. In 1985, Kenneth was diagnosed with a heart condition. He underwent triple bypass surgery at the Epworth Hospital in 1986. Subsequently, in 1989 he had a further bout of ill health, when he had a blood clot and bleeding on the brain.

7 After Christopher completed his high school education, he successfully completed a Bachelor of Applied Science in Chemistry, and a Graduate Diploma in Computer Science, at Bendigo College of Advanced Education. During his years of tertiary education, he lived in the halls of residence in Bendigo. Not long after he graduated in 1985, he returned to work at Hopefield, having been requested to do so by his father, because of his ill health.

8 At that stage, the farm was conducted as a partnership between the members of the four families. At the end of the 1980s, there was a crash in wool prices, which had a dramatic effect on the income of the farm. As a result, the farm business became unprofitable, and became burdened with substantial debt. Christopher took over most of the responsibilities from his father at Hopefield in relation to the direction of the farm business. He conducted negotiations with the manager of the National Australia Bank, to which the farm was indebted. At that time, the farm was being operated by Christopher, his three uncles, and his two cousins, Andrew (the son of Noel) and Ian (the son of Clifford). In June 1995, the formal structure of the farm business was changed from a partnership to a trust. CB Harrison & Sons Pty Ltd ("CBH") was incorporated on 15 June 1995, and was appointed to be the trustee of the Hopefield Trust. Securities for financial accommodation were provided by the NAB, including securities over the parcels of land comprising Hopefield, and a fixed and floating charge over the assets and undertaking of CBH. Thereafter, Christopher, his three uncles, and his cousins, Andrew and Ian, continued to work on and operate the farm, until Andrew departed from it in 2002.

9 After Christopher returned to the farm, he initially lived at Hopefield. He married his former wife Jacqueline in January 1986. There were two children of the marriage, a son (born in 1987) and a daughter (born in 1989). Initially, Christopher and his family lived in the shearers' quarters at Hopefield. In 1990, Christopher and his former wife moved into a house owned by the partnership at 2208 Boort Durham Ox Road, Durham Ox. They purchased that property from the partnership in 1993. In 1997, their marriage broke down. Family law proceedings between them were resolved in late 1998, on the basis that Christopher purchase the Durham Ox property from his former wife. He has lived in that property since. In November 2006, Christopher commenced a relationship with Kirsten Orr ("Kirsty"). They live together, and have a daughter, Siri, born in March 2011.

10 Following Kenneth's death in April 2003, Christopher continued to work on the property with his three uncles and his cousin Ian. Subsequently, he ceased working on the property, but there was conflicting evidence in the case as to the date upon which he did so. The plaintiffs maintain that Christopher ceased to work on the property in 2005. On the other hand, the evidence of Christopher was that he finally ceased working on it in November 2006.

11 As I stated, Andrew Harrison ceased working at Hopefield in 2002. Subsequently, he made a claim for compensation from CBH. There is conflicting evidence as to whether he made that claim during the lifetime of Kenneth, or at some date subsequently. Ultimately, that claim was resolved in about May 2007, on the basis that his father, Noel, pay to him the sum of $1,300,000.

12 The second plaintiff, Sue Harrison, completed her secondary education in 1982. She undertook nursing training at Prince Henry's Hospital in Melbourne, and in 1985 she qualified as a State Enrolled Nurse. Subsequently, in 1990, she graduated as a State Registered Nurse. Sue worked as a nurse from 1985 to 1997 at a number of different hospitals and medical centres. In the early 1990s, she had a relationship with a man, by whom she had a daughter, Eliza, in 1992. That relationship broke down in the following year. In 1996, she completed her Graduate Diploma in Midwifery. Subsequently, in January 1999, she moved from Anglesea to Ballarat, where she worked as a Director of Nursing, initially at Ballarat District Nursing, and then, for four years, at Kelaston Nursing Home Vision Australia Foundation. In late 2003, she moved to Apollo Bay, where she gained employment as the manager of Health and Aged Care at Otway Health Services. In 2004, she married her husband, Glen Lawler. She had two sons by that marriage, born in 2005 and 2007 respectively. In January 2007, she moved from Apollo Bay to Colac. Subsequently, in February 2008, Sue and her husband moved to Bendigo, where she was employed at the City of Greater Bendigo as a team leader. She separated from her husband, Glen, in January 2009.

13 After the first plaintiff, Louise Harrison, completed her High School Certificate, she attended Ballarat University, where she studied nursing. At the time of Kenneth's death, she was married to Michael Skirka, who was a geologist. They were then living at Cobar. Louise had been appointed as nurse unit manager of a rehabilitation unit at the Royal Hobart Hospital, and was about to commence in that position. Subsequently, she and her husband lived in Hobart. In June 2004, Louise and Michael had their first child, a son, Angus. Their second son, Hamish, was born in February 2006. Hamish was subsequently diagnosed with autism, and is significantly disabled. On 8 April 2007, Michael Skirka died as a result of an accident while he was mountain climbing. Following his death, Louise and her two children continued to live in Hobart until December 2008, when they moved to live in Bendigo. Louise is currently working as a team leader with the chronic disease management unit at Bendigo Health. Because of her commitments to her children, and in particular to the care of Hamish, she works part time.

14 After completing her secondary education, the third plaintiff, Kathryn Harrison undertook a Bachelor of Arts degree at the University of Melbourne from 1986 to 1988. During that time, she lived in college, and met her future husband, Paul Somerville ("Paul"). In 1989, she completed her Graduate Diploma of Education at Bendigo College of Advanced Education. In 1998, she completed her Graduate Diploma of Librarianship.

15 After Kathryn completed her Diploma of Education, she commenced work as a school teacher, at Darwin, and then subsequently at Kerang. Kathryn married Paul in 1992. Paul is an accountant. They have three daughters, aged 13, 11 and 9 years respectively. After her marriage, Kathryn commenced a permanent position at Goulburn Square Secondary College. After the birth of her first child in 1998, she continued to work part time. She is currently on leave without pay, but she is about to take up a position at Bendigo South Secondary College for the remainder of 2011.

16 The plaintiffs' claim is based on proprietary estoppel. In essence, the plaintiffs claim that, after Kenneth's death in April 2003, the defendant promised and undertook to them that he would ensure that provision was made for them from Kenneth's estate. The plaintiffs claim that they relied on those promises and undertakings given to them by the defendant, and, as a result, refrained from making any application for provision from Kenneth's estate under Part IV of the Act. Subsequently on 25 October 2009 the defendant resiled from the promises and undertakings, which he had given to the plaintiffs. By then, the estate had been finally distributed on 29 July 2008, and consequently the plaintiffs were precluded, by s 99 of the Act, from commencing proceedings for relief under Part IV of the Act. Relevantly, the effect of s 99 of the Act is that no application for relief under Part IV may be made after final distribution of the estate. The plaintiffs accordingly claim that they have suffered detriment as a result on their reliance on the promises and undertakings given to them by the defendant. They claim to be entitled to relief, in equity, against the defendant consisting of the provision which would have been made, in their favour, on an application made by them under Part IV of the Act.

17 In its simplest form, the doctrine of proprietary estoppel is conveniently described in the following terms by Handley JA in Delaforce v Simpson-Cook[1]:

"[Proprietary] estoppel comes into existence when an owner of property has encouraged to another to alter his or her position in the expectation of obtaining a proprietary interest and that other, in reliance on the expectation created or encouraged by the property owner, has changed his or her position to their detriment. If these matters are established equity may compel the owner to give effect to that expectation in whole or in part."[2]

18 I shall later, in these reasons, review the authorities relating to the principles of proprietary estoppel. However it is evident, from that review, that, in the context of this case, in order to establish a case based on proprietary estoppel, the plaintiffs must establish the following:

(1) That the defendant made to them promises and undertakings that he would confer on them an interest in property.

(2) That the plaintiffs acted in reliance on those promises by refraining from bringing proceedings for provision, under Part IV of the Act, from Kenneth's estate.

(3) That the plaintiffs acted reasonably in so relying on the promises and undertakings made to them by the defendant.

(4) That the defendant knew or intended that the plaintiffs would rely on his promises and undertakings.

(5) That the plaintiffs acted to their detriment on the basis of the undertakings and promises made to them by the defendant.

19 In its fundamental form, the plaintiffs' claims consist of the following propositions:

(1) Between the date of death of Kenneth and 2008 the defendant, on a number of different occasions, represented to and promised the plaintiffs that he would make provision for them out of Kenneth's estate. Insofar as the defendant made such promises to an individual plaintiff, they were expressed to be made to each of the plaintiffs, and in circumstances in which it would be expected that they would be related to the other plaintiffs.

(2) In reliance on those promises, each plaintiff refrained from obtaining legal advice as to her rights under Part IV of the Administration and Probate Act 1958 ("the Act"), and refrained from making an application for provision from Kenneth's estate under Part IV of the Act.

(3) It was reasonable for each of the plaintiffs to rely on the promises, and to be encouraged in their assumption and expectation that the defendant would make provision for her from Kenneth's estate.

(4) The defendant made the promises to the plaintiffs in circumstances in which he knew that the plaintiffs would rely on them, and would be thereby induced not to seek advice in respect to her entitlement to, or to make application for, provision from Kenneth's estate under Part IV of the Act.

(5) The defendant, contrary to the promises, has not made any provision for the plaintiffs from Kenneth's estate, and, on 25 October 2009, he expressly resiled from the promises.

(6) Each of the plaintiffs was and is a person for whom Kenneth had a responsibility to make provision, and for whom the distribution of Kenneth's estate as effected by his will does not make adequate provision for her proper maintenance and support.

(7) By reason of her reliance on the promises made to them by the plaintiff, each of the plaintiffs has, to her detriment, lost her entitlement to seek provision from Kenneth's estate pursuant to Part IV of the Act.

(8) Accordingly, as a consequence of the promises made by the defendant, the detriment suffered by each of the plaintiffs by reason of her reliance on the promises, and the failure and refusal of the defendant to perform the promises, an equity has arisen in favour of each of the plaintiffs, in respect of the land and water rights bequeathed to the defendant under Kenneth's will, to the extent of the plaintiffs' entitlement to provision for proper maintenance and support under Part IV of the Act.

20 In response the defendant has contested each of the propositions which I have outlined above. In particular the defendant has made the following responses:

(1) He denies making any of the representations or promises alleged by the plaintiffs.

(2) If any such promises or representations were made, he denies that the plaintiffs relied on them in the manner alleged.

(3) In any event if such representations or promises were made, it was not reasonable, in the circumstances, for the plaintiffs to rely on them.

(4) If the representations or promises were made, they were subject to conditions precedent that the farming property be divided into four parts or sold, which has not occurred.

(5) Each plaintiff was not a person for whom Kenneth had a responsibility to make provision pursuant to s 91 of the Act.

(6) Further, the plaintiffs failed to make any application for provision under the Act, or to make an application to extend the time for the purposes of such a claim, before the distribution of the estate, as required by s 99 of the Act, and accordingly the plaintiffs are not entitled to relief, in equity, arising from, or subsequent to, the distribution of the estate of Kenneth.

(7) Any claim by the plaintiffs is barred by laches, acquiescence and delay.

21 Pursuant to a direction given by the Associate Justice, the parties prepared witness statements in respect of each of their proposed witnesses. It was apparent, from those statements, that there were fundamental factual issues between the parties, which rendered aspects of the witness statements an unsatisfactory vehicle for adducing the evidence, in respect of those issues, before the court. Accordingly, I required the parties to lead evidence, in a viva voce form, in respect of the issues relating to the making of the promises or representations alleged to have been made by the defendant, and in respect of the issue of reliance. I permitted the parties to rely on the parts of the witness statements, which related to the question whether the plaintiffs were persons, in respect of whom Kenneth Harrison had a responsibility to make adequate provision pursuant to s 91 of the Act.

22 The three plaintiffs each gave evidence, and they called, as witnesses, Eliza Harrison (the daughter of Sue) and Paul Somerville (the husband of Kathryn). The defendant gave evidence. He also called, as witnesses, Kirsty Orr, John Harrison, Robert Tamblyn (the manager of the Kerang Branch of the National Australia Bank) and Kenneth Pattison (a neighbour). A witness statement of Ian John Itter (a retired computer consultant) was also tendered in evidence.

Summary of evidence as to promises by defendant

23 The most substantial issue in the case, and the issue which occupied a significant proportion of the evidence at the trial, concerned the question whether the defendant made the promises, to provide for the plaintiffs from Kenneth's estate, alleged by the plaintiffs. Each of the three plaintiffs and Paul Somerville gave detailed evidence of a number of representations made to them by Christopher, following their father's death, to the effect that he would provide for them financially. In response, Christopher also gave detailed evidence, denying that he made any such representation to any of his sisters. The plaintiffs, Paul Somerville and the defendant were each cross-examined for a substantial period of time. Accordingly, it is necessary to summarise the evidence of each of the witnesses in some detail, in order to identify the factual issues which I must determine.

24 Louise Harrison was the first witness to give evidence. She stated that, in the week between her father's death and his funeral, she was present at a discussion which took place in the kitchen of her mother's home. Her two sisters and her brother Christopher were also present. During the conversation, her mother expressed concern as to what was to happen to her. Christopher responded by reassuring her that everything would get sorted, and that she would be looked after. He said that the position with the farm was complicated. Kathryn asked Christopher how the estate was set up, and how their mother, and his sisters, would be provided for. Christopher responded that they would all be provided for, that the estate was very complicated, but that they need not worry. In cross-examination, Louise said that, in that conversation, Christopher stated that once the "business with Andrew Harrison" was sorted "he (Christopher) would look at providing for us". Louise stated that, before her father died, he had told her that Andrew had left the farm, and was demanding a sum of money. She said that the demand made by Andrew was a common topic of discussion in the family at that time. In her evidence, Louise stated that, based on what her brother Christopher said at the meeting, she understood that he would "do what he had to do" with the estate, and then make provision for her mother, her sisters and herself.

25 Following that discussion, Louise's mother rang her from time to time in some distress, expressing concern as to what provision she would receive from the estate. As a result, Louise contacted Christopher, who reassured her, saying that the estate was complicated, and it may take some time to sort it out. He would say things like "don't worry it will all get sorted" and "you will get looked after and I'll provide for you".

26 In the meantime, Louise and her husband had moved to Hobart. She returned to Victoria in September 2003 for a visit to her family. In a discussion, which she had with Christopher about what was happening with the estate, Christopher told her that the issue relating to Andrew was making the estate complicated.

27 After Michael and Louise returned to Tasmania, Louise continued to maintain frequent telephone communication with Christopher and her sisters. At that time, they were a very close family, and they were frequently in telephone contact with each other. In the meantime, Louise's mother was contacting her, and was expressing concern about what would happen relating to the estate. In the course of Louise's conversations with Christopher, he would say to her that "it's all getting sorted, you do not need to worry about it". During that time, Louise would discuss the matter with her two sisters, and in particular with Sue. On a number of occasions, they talked about how their brother Christopher had reassured them that it would all be worked out. Louise stated that, at that stage, she never doubted her brother Christopher, because she believed that he was a man of his word.

28 In September 2004, Louise and Michael visited Victoria for the marriage of her sister Sue. At the time, Louise had her first child, who was then a young baby. At the wedding reception, Christopher repeated his assurance to Louise that he would look after her.

29 During 2005, Louise maintained the same pattern of communications with her sisters and her brother. However, as time passed, she did not receive any further information concerning the administration of her father's estate. When she spoke to Christopher, he became annoyed with her for asking him about it. In one conversation, Christopher described how hard he had worked on the farm, and said that he had done a lot for the farm, and he reiterated that things were more complicated than Louise understood. In response to that conversation, Louise sent Christopher an email dated 13 September 2005. In that email, Louise stated her view that Christopher had been given preferential treatment by her parents than the treatment given to her sisters and herself. She expressed hurt that she had not been mentioned in her father's will, and said "All we are looking for is acknowledgment that the system is not fair".

30 Christopher did not respond to that email, and Louise described it as the end of her relationship with him for many years. She visited him in Christmas 2005, and begged his forgiveness. However, in the following year, her relationship with Christopher continued to be quite strained. The relationship only improved after the death of Louise's husband on 8 April 2007. On the next day, Christopher arrived, together with her mother and her sister Sue. Kathryn and her husband Paul were already in Tasmania. During the following week, Christopher said to Louise that he would help to provide for her sons and her. He said he would set things up for the whole family, and he would do whatever he could.

31 Subsequently, in September 2007, Christopher returned for another visit. At that time, it was contemplated that Christopher and Kirsty would live in Hobart. On that occasion, he said to Louise that he would provide for her sons and herself, that he would arrange trusts for her sons and herself, and that he would look at doing so for the whole family.

32 In cross-examination, Louise stated that, in the period after September 2007, she had discussions with Christopher about coming to live in Tasmania. Christopher stated that he was going to physically help her with her sons, and he reiterated that he would look at setting up trusts for her children and herself, and also for the rest of the family. However, subsequently, Christopher cooled again in his attitude to his sister Louise.

33 In her evidence in chief, Louise stated that, if her brother Christopher had not said that he was going to make provision for her, she would have sought advice as to her entitlement under the will as one of her father's daughters. She said that she did not do so, because Christopher promised to care and provide for her sisters and herself, and that her sisters and she trusted him. She said that the first occasion, on which she knew about her father's will, was in June 2004. Her mother telephoned Louise to say that the will had been settled, and that she (Jillian) had been given some money, but that there would not be anything for Louise and her sisters. Louise spoke to Christopher about it, and he reassured her that "It doesn't matter, because I will look after you".

34 Louise stated that she always believed that Christopher's promises could be relied on. She changed her mind when she returned to Bendigo in December 2008, and Christopher became more distant from her. Kathryn and she began talking about seeking legal advice, and they actually did seek legal advice. However, Sue said that she should speak again to Christopher, because she believed that he would honour his word. Subsequently, however, Sue telephoned Louise, and told her that she (Sue) had spoken to Christopher, who had said that he would rather spend all the money in the estate, rather than give his sisters "one cent".

35 In cross-examination, Louise stated that she never asked Christopher for a copy of the will. She knew that Christopher would be given the farm, and that her mother would receive money from her father's estate. She was cross-examined on the basis that the further particulars provided on behalf of the plaintiffs did not refer to a number of the conversations, about which she gave evidence, and in which she stated that her brother had reassured her sisters and herself that he would be making provision for them out of their father's estate. Louise accepted that her lawyers had given her a full opportunity to tell them everything about what Christopher had promised to her.

36 In cross-examination, Louise also stated that, on one occasion in 2006, her husband Michael visited Christopher in Victoria, and that, on his return, Michael had said to her that Christopher had stated that the farm dealings were very complicated, and that things would get sorted. In that conversation, Michael said to Louise "Don't worry, it will be all okay, Christopher has to get things sorted".

37 Louise agreed, in cross-examination, that, in the many emails, which she sent to her brother, she did not once refer to any of the promises or reassurances, which she stated had been given to her by her brother. She said that she did not do so, because she did not consider it necessary. She denied that, in 1999, Christopher had discussed the terms of their father's will with her. She also maintained that, at the time of her father's death, Andrew Harrison had made a financial claim against the estate, and that, in the meeting in her mother's kitchen after her father's death, Christopher had said that, once the "business" with Andrew was sorted out, he would look at providing for her sisters and herself.

38 Louise also said, in cross-examination, that her sister Kathryn first spoke to lawyers in 2007, and they advised her that there was nothing she could do about obtaining redress in respect of their father's will. She said that she did not tell Christopher that Kathryn had sought legal advice, because she did not want to offend him, and that she wanted him back in her life. At that stage, her doubts, about Christopher fulfilling his promises, had been removed.

39 In cross-examination, Louise also denied that she and her sisters commenced these proceedings in response to a newspaper article entitled "Water Barons", in which it was stated that the water rights, attaching to the Hopefield property, were particularly valuable. She also denied that she and her sisters had been moved to make the present claim, when they became aware that the claim brought by Andrew Harrison had been settled on the basis of a payment made to him in the sum of $1.3 million. In re-examination, she stated that she decided to commence this proceeding when, in 2009, Sue had spoken to Christopher, and had reported that Christopher would not make any provision for her sisters and herself.

40 The second witness was Sue Harrison. She said that, before her father died, she had gained some impression from him as to the contents of his will. In particular, in 2000, when her father was quite ill, she spent one night in hospital with him. They had a long conversation. In the course of that discussion, her father said to her that when he passed away, he trusted that Christopher would be able to continue to look after his mother, and that he would also look after his sisters. Subsequently, before his death, her father said to her that she would always receive something from the farm, if it ever wound up. During the week after her father died, Sue spent a lot of time with her siblings. On one occasion, they went for a walk together around the farm. On their return, they had a conversation in the kitchen of their mother's house. In that conversation, her mother expressed concern about what was going to happen to her. Christopher responded with words to the effect that "That's all sorted, Dad's expected me to look after Mum and the girls and he's trusted me to do that and that's what I'll do". It was a short conversation, and Sue understood from it that Christopher would be providing for his mother and his sisters out of their father's estate.

41 Sue further stated that, subsequently, her mother would often talk about this matter, because she was concerned that she did not have any money. In conversations, which Sue had with Christopher, she would ask him what was going on, and he would respond that "it takes time to get sorted out and it will get sorted out and Mum's alright". In May 2004, her mother telephoned Sue, and said that she had been left money in the will, and that Christopher had been given the farm, but that she (Sue) was not mentioned in the will. Her mother assured her that Christopher would continue to look after all of them.

42 Following that conversation, Sue asked Christopher why the will had been made in such a form. Christopher explained that their father had to make the will like that, because the farm was very complicated, it was a "business transaction", and that in order for the farm to continue, their father could not have left it in their names. Subsequently, in other conversations, Christopher reiterated to her that the will was expressed in such a way, because it was a business transaction, but that their father had trusted Christopher to look after everyone, including his mother and his sisters.

43 Sue further stated that, in 2005, a superannuation company made an offer of $30,000,000 to purchase the whole of the farm. Sue spoke to Christopher about that offer at their mother's house. She said that, as a result of that knowledge, she understood that she would be receiving what she regarded as her inheritance. Her recollection was that, shortly after that offer was made, Christopher ceased working on the farm.

44 In her evidence, Sue further stated that, in about 2006, Kathryn and Louise spoke about the possibility of bringing legal proceedings. However, Sue felt very strongly that Christopher would do the right thing, and she believed him. Sue had a closer relationship with her brother than did her sisters. Sue told Christopher that their sisters were contemplating commencing legal proceedings. In response, Christopher walked out, saying "My sisters are taking me to court, my cousin is, it's terrible". Sue endeavoured to explain to Christopher that her sisters had not yet consulted solicitors, but they were just talking about it. She asked him whether there was any way that they could work something out, such as giving each of the sisters a percentage, or putting a share in the farm in their mother's name.

45 Subsequently, Sue and Christopher had another conversation on the telephone. She expressed concern as to what would happen to his share in the farm, if "something was to happen to him". He responded that he had left the farm to his mother in his will, and that Sue and her sisters would ultimately receive their mother's share of the farm. Sue responded that it was more probable that their mother would predecease Christopher. She said that they needed to have the matter worked out. Christopher told her she should go to his solicitor (Basile & Co), and put something in his will to the effect that their father's intention was that the three sisters should each get a share. Sue responded that she could not do that, because Mr Basile was his solicitor.

46 Sue stated that, when she raised with Christopher the fact that her sisters were contemplating seeking legal advice, he also stated that "you know that I'll look after you, Dad has given me this responsibility to do this, and I will look after Mum and I will look after you girls".

47 Sue gave further evidence that, in April 2007, after Louise's husband Michael was killed, Christopher spoke about setting up trusts for them to support the children. That conversation took place in Tasmania between Kathryn, Sue and Christopher. They discussed the fact that Louise's husband did not leave any life insurance. Christopher said that when things get sorted, "We would be able to look at setting up some trust funds".

48 Sue stated that, later in the year, when Christopher visited her home in Bendigo, they had a conversation in the rumpus room. Sue asked Christopher to explain his suggestion as to setting up trusts. Christopher responded that, when the farm became divided, he would set up a trust, which worked like the "Myer's trust", and that, from it, all members of the family would benefit. Sue spoke to Christopher about providing financial support to her daughter Eliza, who wished to go to university. Christopher stated that the trust would own the real estate, but that they would all receive an income from it, and that it would go on for their lifetime.

49 Sue further stated that, throughout the whole period, she believed, and relied on, Christopher's assurances. She said that, in about 2005 or 2006, Kathryn had said that she was starting not to believe that Christopher would honour his promises, and that she was contemplating seeking legal advice. Sue responded that she believed that Christopher would honour his word. She believed that he was genuine when he stated that he had to first sort out a number of complications in the estate, and that, having done so, he would share some of it with his sisters.

50 Sue said that she only changed her mind about that matter on 25 October 2009. On the previous day, her sisters had spoken to her, and they had stated that they did not consider that Christopher would fulfil his promise. Sue asked her sisters to give her another opportunity to talk to Christopher, because she still trusted him. On the next day, Sue visited Christopher's home in company with her mother. Christopher and Kirsty had friends visiting them at the time. Sue and her mother spoke to Christopher. Sue told him that their sisters were seeking legal advice, and she asked if he would be prepared to put 50 percent of their father's estate into their mother's name, so that it would be protected. Christopher responded by becoming very angry. He said that he would prefer to take the matter through the courts, and spend every last cent of the estate on litigation, rather than give his sisters anything. He also said that he would use every "bit of dirt" he had on Sue and her sisters. Sue then went inside and spoke to Kirsty, who responded by saying that she (Sue) just needed to focus on the outcome which she wanted.

51 Sue and her mother then left Christopher's place. After she had dropped her mother at her home, Christopher telephoned her on her mobile telephone. He told Sue that she did not understand, because the issue was very complicated, and that he might need to buy a farm for himself.

52 Sue said that, after that conversation, she has not further spoken to Christopher. She also said that, before this proceeding began, she was aware that it was possible to challenge a will. She related an occasion in 1987, when she spoke to Christopher, and told him that she would contest her father's will, if he did not look after her.

53 In cross-examination, Sue elaborated on that conversation. She said that it occurred on an occasion when she was visiting Christopher at his home, after the birth of his first child. She was speaking with Christopher and his wife about the changes, which were occurring on the farm. She said that some of her cousins were married, and there was trouble in their marriages. She said that she stated to her brother that she would contest her father's will, if he did not leave her anything. In further cross-examination, she accepted that she might have been wrong in recollecting that her cousins were married at that time. However, she maintained that she did recollect the conversation.

54 In cross-examination, Sue also stated that, after her father died, she spoke with her brother Christopher about discussions, which she had with her father, and, in particular, the conversation which she had with him in hospital in 2000. Christopher responded by confirming that their father had entrusted him to care for his mother and for his sisters. She also elaborated on the conversations, which she had with her father before his death. She said that, in those conversations, her father had said that Christopher would continue working on the farm, but that he would provide for his mother and his sisters financially, emotionally and physically. At one stage, her father had said to her that her sisters and she would each receive 10 percent of the farm when it was sold. She agreed, in cross-examination, that she had not mentioned that aspect of the conversations with her father in evidence in chief. She stated that she was quite shaken at the commencement of her evidence, but she maintained that her father had said to her that interest would be approximately 10 percent, and he had added the qualification that if she lived to 80 years of age she would not get that amount. She said that her father had also stated that she would obtain her 10 percent share when the farm was sold, but that, in the meantime, Christopher would look after her financially. She said that she spoke to Christopher about the 10 percent figure, at about the time when the offer was received from the superannuation company to purchase the farm. She also stated she had discussed that aspect, of her conversation with her father, with other members of the family, and she said that it gave her sisters and herself reason to consider that, if the offer from the superannuation company was accepted, they would each receive about $800,000.

55 In cross-examination, Sue also confirmed that, when she spoke with Christopher about her father's estate, she told her brother that she would be relating to her two sisters what he told her. Thus, when Christopher explained to her that their father's will was a business transaction, she said to him that she would tell her sisters.

56 Sue also stated, in cross-examination, that she had never threatened to sue her brother, if he did not honour his promises, because she believed him. She did not refer to those promises in any email she had sent to him, because she trusted his word. She stated that the offer from the superannuation company was received in 2005, after Christopher had ceased working on the farm in about September 2005. When cross-examined as to the date on which Christopher left the farm, she said that she could recall that that was so, because at Christmas 2005 the family was together, and at that stage Christopher was having issues with Kathryn and Louise, and he was not then working on the farm. She denied that it was not until 2007 that Christopher told her about the offer from the superannuation company. She said that she learnt about that offer, before her brother-in-law, Michael, died. His death was an important point of reference for her recollection on this aspect of the case. First, she stated that she was living in Apollo Bay when she first learnt about the offer. However, she was living in Colac when Michael died, having moved to Colac in January 2007. Secondly, she could recall that Michael was present in discussions concerning the offer received from the superannuation company.

57 In cross-examination, Sue Harrison also confirmed that, at the time of her father's death, there were conversations concerning demands made by Andrew Harrison for a substantial amount of money. She said that her father had called Andrew a "greedy sod" for making such a demand, and that her father was quite upset about it. She said that the demand made by Andrew was the subject of general talk in the family at the time.

58 Mr Shepherd also cross-examined Sue concerning the further particulars provided by the plaintiffs as to the conversations, in which they stated that Christopher had made promises to them to make provision for them out of their father's estate. She stated that the occasions, specified in the particulars, were not all of the conversations which she recollected. She further confirmed that she had a conversation with Christopher, in which she was talking about a trust, in the period after her brother-in-law Michael died. In those conversations, Christopher was talking of looking at trusts. Initially, he talked about a trust for Louise's children, and then a trust for the other members of his family. Later, in 2007, when Christopher returned from Tasmania, he told Sue that he was looking at setting up trusts for the rest of the family.

59 Sue was also cross-examined as to the conversation which she had with Christopher in the rumpus room of her home in Bendigo in January 2008. In that conversation, Christopher said to her that the will was a business transaction, and that their father had trusted that he would look after things. He explained that he was looking at setting up a "Myer" type of trust, in which all the family would receive an income on an annual basis. Christopher spoke about each grandchild receiving $30,000. Sue said that that remark was made in the context of Sue's daughter Eliza, who was then wishing to go to university. Christopher said that Eliza would receive her share shortly.

60 Sue also stated that she had never doubted Christopher until October 2009. Previously, in 2006, when she told Christopher that Kathryn and Louise were thinking about legal advice, Christopher became angry. Sue tried to calm him down, and told him that she knew that he was going to honour his word, and do what he promised to do.

61 Sue also denied, in cross-examination, that, in December 1998, Kathryn had shown her their father's will on an occasion in the kitchen of their parents' home. She denied that, on that day, Christopher explained to Kathryn and her why her father's will was in that form, and that he explained to her matters about the farm history, including the tough life which people had to undergo in order to save the farm after the wool crash in the late 1980s.

62 Sue was cross-examined extensively concerning the final meeting which she had with Christopher on 25 October 2009. She denied that she stated to Christopher that her mother was making a claim against the estate. Rather, she tried to persuade him to put 50 percent of the interest in the farm in their mother's name, in order to protect their mother, and to protect the share of her sisters and herself. It was at that stage that Christopher stated that he would prefer to take the matter through the legal courts than to give his sisters any money. She said that she was very distressed by her brother's attitude, and that she was in tears when she left his house with her mother. She stated that she had asked Christopher to put the interest in the farm in their mother's name so that, if anything happened to him, her mother, her sisters and she would be looked after, and their interests would not be susceptible to a claim by Christopher's children. She said that that was not the first occasion upon which she had raised that possibility with Christopher. Hitherto, he had stated that such a proposition was untenable.

63 The next witness who gave evidence was Paul Somerville ("Paul") who is the husband of the third plaintiff, Kathryn Harrison. Paul first met his wife, and the Harrison family, in 1986. He married Kathryn in Kerang in 1992. He stated that he first read a copy of Kenneth's will about two years ago, after the commencement of these proceedings. However, based on his knowledge of the history of the family, and conversations which he had with his wife concerning that matter, he understood that the Hopefield property had passed from father to male heir for a number of generations. Thus, he understood that on Kenneth's death, his interest in the property would pass to Christopher.

64 In the week after Kenneth's death, and before his funeral, Kathryn related to Paul a conversation, which she had with Christopher and her siblings and her mother concerning her father's will. (I interpolate that this evidence, and other evidence of what Kathryn related to Paul, was only admitted as relevant to the reliance by Kathryn on what she was told; it was not admitted as evidence for the truth of what Kathryn told Paul). In that conversation, Kathryn said that Christopher had promised that, when the difficulties involving the farm had been resolved, he would make provision for her sisters, her mother and herself. She said that the delay was primarily due to the need to resolve the issue relating to Andrew Harrison. Kathryn indicated to Paul that she was happy with the representation made to her by her brother, and that she was content to wait until the matter relating to Andrew Harrison was resolved.

65 One year later, Kathryn told Paul that she had visited her mother at Freedom Fields, and that her mother had told her that she had attended a reading of the will in Kerang. Kathryn told Paul that her mother had said that there was no provision in the will for her (Kathryn). During the previous twelve months, Kathryn had been saying to Paul that Christopher had promised her that, once the issues with the farm were resolved, he would make provision for her sisters and herself, as well as for her mother.

66 Paul then gave evidence relating to the effect of the email, which Louise sent to Christopher in September 2005. He said that, as a result of that email, Christopher stopped communicating with both Louise and Kathryn. The two sisters felt a great emotional pain at being rejected by their brother. At about the same time, Christopher stopped working on the farm. At that time, Kathryn and Louise were discussing, in his presence, whether the will should be contested, and what legal remedies might be available. However, they did not pursue any legal redress at that stage, because they were of the view that such a step would further antagonise Christopher, and thus diminish the prospects of reconciliation with him.

67 Paul then gave evidence as to the occasion when, after the death of Michael Skirka in April 2007, Christopher and he drove to Rosebery to collect the personal effects of Michael. During that drive, they discussed the devastating effect which Michael's death would have on Louise on her two infant sons. Christopher stated that he would look after Louise, and that she would not have to worry about money. They then discussed the issue relating to Andrew, and Christopher indicated that the issue was almost resolved, but that the need to fund payment of Andrew's demands was creating financial pressure on the farm. Christopher stated that once that issue was resolved, he would look after his sisters and his mother. He spoke about dividing the farm into four parts. Christopher stated that the division of the farm would be complicated, with the land and with the water to be separated into four parts, and that it would take time.

68 Subsequent to that discussion, Paul related to Kathryn what Christopher had said to him. Kathryn said to him that she was reassured by what her husband told her, and, in particular, she was relieved that Christopher would honour his promises to her. Some time later, Paul also told Louise of his conversation with Christopher. In particular, he told her that Christopher had said that she (Louise) would not have to worry about money again, and that he would look after her. In response, Louise was pleased, but remained somewhat sceptical.

69 In June 2007, Paul and Kathryn updated their wills. They signed them at the solicitor's office at different times. Kathryn told Paul that, after she had signed her will, she had told the solicitor, who witnessed the wills, in general terms, the history of her family and her father's death. She made a general inquiry of the solicitor as to what options might be available to her, and, in response, the solicitor remarked that it was probably too late for her to make any application. Kathryn told Paul that the discussion was, in effect, a conversation at the door of the office, and that the advice given to her was based on the date of her father's death, and the period of time which had passed since then.

70 Later in the year, Christopher appeared to become reconciled with the family, attending Paul's 40th birthday party. However, subsequently, he again withdrew from them. He was not responding to calls made to him by Kathryn. In response, Kathryn became increasingly concerned that Christopher might not fulfil his promises to her. She talked about seeking proper legal advice, in order to ascertain whether there was a basis for her to make a claim. However, she expressed concern that, if she commenced legal action, it would forever fracture the family.

71 In about September 2008, Kathryn told Paul that she had telephoned a firm of solicitors, and that she had had a short conversation with them, in which she had obtained some advice. On 8 September 2008, Paul sent an email to Christopher, encouraging him to speak to Kathryn. Christopher responded by indicating that he understood that Kathryn and Louise had already started legal proceedings involving their father's estate. On 9 September, Paul sent a further email to Christopher, stating that Kathryn had sought legal advice of a general nature in the previous week, but that she had not commenced litigation. He again encouraged Christopher to talk to his sisters. However, Christopher did not accept that advice.

72 In his evidence, Paul stated that he understood that Christopher's failure to respond to his email was influential in the decision of Kathryn and Louise to commence litigation. Kathryn was also influenced by the fact that, in mid-2009, she learnt that the water rights had been transferred by her mother to Christopher. She was both surprised and angry at that. Finally, Kathryn had a conversation with Sue, in which Sue told her that Christopher had said that he would spend every last cent of the estate to prevent his sisters getting any of it. As a result, Kathryn sought legal advice from the plaintiffs' solicitor, and, in due course, these proceedings were commenced.

73 In cross-examination, Paul said that he did not recall an occasion at their home in Axedale in December 1998, when Christopher attended, and explained to Kathryn and Paul what was in Kenneth's will. He did not recall Christopher saying on such an occasion that the farm was in a serious position, and that those involved in the farm had had a tough life to try to save it after the wool crash. Paul stated that, to his knowledge, his wife Kathryn had not at that time seen her father's will.

74 In respect to the conversation, which he had with Kathryn in the week after Kenneth's death, Paul stated that Kathryn had told him that Christopher had said to her mother, her sisters and herself that, after the "business" with Andrew is settled, he would look at providing something for them. She said to Paul that Christopher had said that once the matter relating to Andrew had been sorted and his father's estate had been sorted, he (Christopher) would make provision for them from his father's will.

75 Paul further stated that he was aware that Andrew Harrison had left the farm in 2002, the year before Kenneth died. He recalled a conversation with Kenneth, in which he described Andrew as a "greedy bugger". His understanding, then, was that when Andrew left the farm, he made a demand for money on the farm. He said that he gained that knowledge from talking to Kathryn, and also from talking to Christopher and Kenneth before his death. Later, in his cross-examination, he referred to two emails, one in April 2005, and the second in August 2005, which he received from Christopher, relating to demands, which had been made by Andrew. The latter email was tendered through Paul (and became Exhibit 27). The former email was subsequently tendered in evidence through his wife Kathryn (Exhibit E).

76 Mr Shepherd cross-examined Paul at some length relating to the conversation during the car trip which he had with Christopher to Rosebery shortly after Michael Skirka's death. Paul denied that Christopher stated only that he would give moral support to his sister Louise. Rather, Paul, stated that Christopher said to him, during that trip, that Louise need not worry about money and that he (Christopher) would look after her. He also stated that, during that conversation, Christopher said that the issue relating to Andrew was almost resolved, but there would need to be some new borrowings, in order to pay Andrew out. He referred to the fact that Andrew was either suing, or had sued, the farm, and that the farm would need to borrow money to satisfy the demand made by him. During that conversation Christopher stated that he had a "plan" or a "process" to divide the farm into four parts, which was something which would need to be sorted before he was able to provide financial assistance to his sister.

77 Paul confirmed that, after that conversation with Christopher, he reported it to Kathryn. In re-examination, he said that he could specifically recall what Christopher had said about providing financial assistance to Louise. Michael Skirka died two days previously, and he (Paul) was concerned about Louise's future, because Michael had been the primary breadwinner, and their two children were very young. The conversation, which he had with Christopher, reduced his concerns in that regard, because Christopher had assured him that Louise would not have to worry about money, because he and the farm would look after her.

78 In cross-examination, Paul also stated that he could recall that, shortly after Michael Skirka's death, Kathryn had told him that Christopher had talked to her about establishing a trust for his sisters' children. Kathryn indicated to Paul that she considered that idea to be unsatisfactory, and that it was a departure from the original promise, which Christopher had made to her.

79 In cross-examination, Paul confirmed that the first occasion, upon which Kathryn had sought any legal advice relating to her father's estate, was in June 2007, when she signed her will. Kathryn told Paul that the solicitor had said to her that it was probably too late to make a claim. Paul said that Kathryn had delayed issuing proceedings, because she was concerned that litigation would irretrievably alienate her from her brother. Paul further stated that, after Louise sent the email to Christopher on 13 September 2005, he had conversations with both Louise and Kathryn about the advantages and disadvantages of commencing legal proceedings. He confirmed that Kathryn sought some general legal advice in September 2008. In re-examination, he said that Kathryn had obtained that advice in a telephone call, in order to gain some understanding about her legal rights. She reported to Paul that she was advised that she may have some remedies, but that she would have to attend upon the solicitor and make an appointment.

80 In cross-examination, Paul also stated that his recollection was that Christopher had ceased to be involved in the farm on a day to day basis from 2005. He said that, during the journey which he shared with Christopher to Rosebery in April 2007, Christopher told him about an offer which had been received some time previously from a superannuation fund to purchase the whole of the farm. Paul stated that that was the first occasion, upon which he learnt that such an offer had been made.

81 Eliza Harrison, the daughter of Sue Harrison, next gave evidence on behalf of the plaintiffs. She is 19 years of age, and is currently in the second year of her university course.

82 Eliza stated that, since her childhood she has always been very close to Christopher, and she had looked up to him like her own father. She had enjoyed a very close relationship with him until the commencement of these proceedings.

83 Eliza gave evidence about a conversation, which took place when she was about 12 or 13 years of age. In that conversation, Christopher and her grandmother were explaining to her mother (Sue) about a legal action by Andrew. They were upset and angry, because Andrew's action was going to affect the farm and the family. In cross-examination, she said she was quite young at the time of the conversation, and she did not fully understand its import. However, she understood, from the conversation, that Christopher and her grandmother were annoyed, because Andrew was pursuing a legal avenue. She was also uncertain as to when the conversation occurred.

84 Eliza gave evidence as to a second conversation, at which she was present, and which took place in Tasmania after her uncle Michael's death in April 2007. Eliza had travelled to Tasmania on the previous night with Christopher, her mother Sue and her grandmother. At the time of the conversation, the adults were sitting around the dining room table, and she was sitting on a couch. Louise was crying, and Christopher put his arm around her to comfort her. There was discussion about what Louise would do, and whether she should move back to Victoria. She said that she did not wish to sell her house because she wanted to have it for her two young sons. Christopher told Louise that she should not worry about her financial situation, and that he would always help her out. In cross-examination, Eliza was definite that Christopher had told Louise not to worry, and that he would look after her in a financial sense. She stated that she had a good memory of the conversation, and, in cross-examination, she was able to recall other conversations, which took place at that time.

85 Eliza then gave evidence about a conversation, which she overheard in February 2008, between her mother and Christopher, in the rumpus room at their home in Sullivans Road in Strathfieldsaye. Christopher had visited the house, in order to take photographs of Eliza's youngest brother, Lochlann, who was then an infant. While Sue was talking to Christopher, Eliza was going in and out of the rumpus room. She wanted to show an email to Christopher, which she had received from her father. When she was in the rumpus room, she heard her mother tell Christopher that she was concerned about her ability to support Eliza, who wanted to study medicine at the University of Melbourne. Christopher responded that he would help to pay for Eliza's accommodation. In response, Eliza had said words to the effect "Oh cool". In cross-examination, she stated that, earlier in the year, before commencing school, she had lived for a time with Kathryn and Paul at their home at Candlebark Court, Axedale. However, at the time of the conversation in the rumpus room, she was then living with her mother at Sullivans Road. She said that she had entered the room, in order to speak to Christopher about the email, which she had received from her father. She said that, while she was waiting for Christopher to complete his conversation with her mother, she heard Christopher say to her mother that he would pay for her university accommodation.

86 The final witness, who gave evidence on behalf of the plaintiffs, was the third plaintiff, Kathryn Harrison ("Kathryn").

87 Kathryn stated that, at the time at which her father died, there were ongoing issues relating to Andrew Harrison. She understood then that Andrew had left the farm, and was demanding a sum of money. Her father, Kenneth, had, in her presence, called Andrew a "greedy sod". Her mother explained to her that Andrew had left the farm, and that he had made demands on it, and had created a degree of dysfunction, because he was the person who was going to take over from his father Noel. Kathryn also stated that, at that time, there was general conversation in the family about Andrew asking for money.

88 Kathryn also stated that, at the time of her father's death, she did not know the contents of his will. She had assumed that her brother Christopher would be left the farm, because, during the previous six generations, the interest in the farm had been left to the sons. However, she believed that Christopher had made an undertaking to her father that he would look after his mother and his sisters.

89 Kathryn gave evidence as to a conversation, which took place, concerning her father's estate, in the kitchen of her mother's house, between the date of Kenneth's death and his funeral. Her mother, Christopher, herself and one of her sisters were sitting around the kitchen table. Her mother was crying, and expressing concern because she had no money. In response, Christopher put his arms around her and said "It's alright Mum, I'll look after you". He then looked over at Kathryn and her sister, and said "When the business with Andrew is settled, I will look after all of you". Kathryn said that she understood that the estate would be complicated, and that it might take some time for Christopher to sort it out. She told her husband, Paul, about what Christopher had stated to her. She also, subsequently, talked about that matter with her sisters.

90 Kathryn then gave evidence about a conversation, which she had with Christopher at the family Christmas function in December 2003, at her sister Sue's place in Buninyong. She said that, after lunch, she and Christopher had remained inside, while the rest of the family went outside. Christopher and she were having a general conversation about family matters. They talked about their father no longer being with them, and how long it would take to sort out the estate. Christopher said to Kathryn, "I'll look after you".

91 Kathryn stated that she first learnt about the effect of her father's will in about May 2004 from her mother, on the day on which her mother had earlier travelled to Kerang, with Christopher, to see the solicitor who was acting for the estate. When Kathryn visited her mother, she said to Kathryn that she did not think that there was much in the estate for Kathryn's sisters and her, but that Christopher had promised to look after them. Kathryn relayed that information to both Louise and Sue. They both stated to her that they were disappointed, but that they trusted Christopher. Sue told Kathryn that she had been talking to Christopher about their father's will, and that Christopher had described it as a "business transaction". Kathryn, in her evidence, stated that she was reassured by that advice which she received from Sue, and she believed that her father would have made her brother Christopher promise to look after her sisters and herself. She said that, in conversations which she had with her father before his death, concerning the patriarchal nature of the Harrison family, her father had said to her, "You'll do alright Kathryn".

92 Kathryn then gave evidence about an email dated 8 April 2005, which she said she had received from Christopher, in which Christopher reported that, on the previous evening, he had received a telephone call from Andrew, in which Andrew had asked for $150,000 to buy a house, his debt to be paid off, and a further sum of $250,000. Kathryn produced a printout of a series of emails, which she had found in the archive section of her computer in the previous week before giving evidence. The email, from Christopher, to which she referred, was in a sequence of emails between the three siblings, which had started with an email from Kathryn to her sisters and brother, describing a dream which she had had the previous night concerning her father.

93 Kathryn described how she was in frequent telephone contact with her sisters, and that, in the course of the conversations, which she had with her sisters, she would tell them any information which she had received from Christopher relating to their father's estate.

94 Kathryn then gave evidence concerning the email, dated 13 September 2005, which Louise had sent to Christopher. She said that Louise had first sent the email to her, before she had dispatched it to Christopher, and that they had discussed it together on the telephone. Kathryn stated that after Louise had sent the email to Christopher, his attitude changed, and he significantly reduced his level of communication with Louise and Kathryn. In response, Kathryn sent a large number of emails to Christopher asking him to resume communication. She said that, whenever she tried to telephone Christopher, he would claim that he could not hear her on the phone, and the call would be discontinued.

95 Kathryn stated that, before September 2005, Christopher had told her about an offer, which had been received from a superannuation company to purchase the farm for a sum of $30,000,000. Kathryn spoke about that offer to her sisters. However, subsequently, Kathryn learnt, from her mother, that other members of the family had not accepted the proposal, and that it was not proceeding.

96 Kathryn stated that when Christopher stopped communicating with her after September 2005, she thought that he would not honour his previous promise to her. However, both Louise and Kathryn reassured her. In particular, Sue stated that she had been speaking to Christopher, that he was a good person, and that he would fulfil his promise.

97 In December 2005, Kathryn attended at her mother's house for a family Christmas lunch. Christopher was called to the property, in order to get rid of a snake. She described how, after he had looked for the snake, he went into the kitchen, and abruptly said, "I told you girls I would look after you", and left in a hurry in his car.

98 Kathryn then gave evidence as to the gathering of the members of the family in Hobart in April 2007, after her brother-in-law Michael had died in an accident. She said that, after Michael's death, there was a lot of discussion relating to the fact that Michael had not made a will, and that he did not have life insurance. Louise was expressing concern that she would not have sufficient money. On one occasion, Kathryn had a conversation with Christopher outside the front of Louise's house on the decking. They could see Louise inside the house, speaking on the telephone and crying. Christopher said to Kathryn that he was going to set up a trust for Louise's children, and that he would set up trusts for all of their children. In her evidence, Kathryn stated that she felt angry about that, because that promise was different to the promise which Christopher had made in April 2003.

99 Kathryn gave evidence that, after her husband Paul drove to Rosebery with Christopher, in order to collect Michael's possessions, Paul reported to her that Christopher had promised that he would look after Louise. In evidence, Kathryn stated that she was concerned because, although Christopher stated that he would look after Louise, he did not make any mention of his previous promise to look after herself and Sue. However, Sue reassured her that she still believed that Christopher would honour his promise.

100 Kathryn stated that, after Paul and she returned home from Tasmania, they both saw a solicitor in order to update their wills. They had been minded to do so, because of the difficulties which Louise was encountering, as a result of Michael dying intestate. After she had returned to the solicitors to sign the will, and as she was about to leave the solicitor's office, she told the solicitor that her father had died in 2003, and asked him if it was too late to contest her father's will. The solicitor replied that, after so many years, he thought it would be too late. Kathryn reported that advice to her sisters. However, both Louise and Sue told her that they trusted Christopher, and they believed that he would adhere to the earlier promises.

101 Kathryn stated that, in 2008, she was becoming more dubious about whether Christopher would honour his promise. She spoke to Louise, who was also becoming more doubtful. She also discussed her doubts with Sue. However, Sue said that she would try to talk to Christopher, because she was still communicating with him. Sue said that she believed Christopher. In 2008, Kathryn had further thoughts about taking legal action. She telephoned a solicitor, whose name she had found in a telephone book. She was told that she would need to obtain a copy of the will, and arrange for an appointment to consult with the solicitor. When Kathryn told Sue of that conversation, Sue talked her out of taking any legal action. Sue said that Christopher had been talking to her, and that she considered that he would adhere to his promise.

102 Kathryn said that she was, ultimately, moved to seek legal advice, when, on 25 October 2009, Sue told her that Christopher had said that he would prefer to spend every last cent of the estate on court fees, rather than giving his sisters anything.

103 Kathryn, in her evidence, stated that, if Christopher had not made the promises to her, to which she had referred in her evidence, she would have contested the will. She believed Christopher when he made the promise, and believed that her father would have told Christopher that he should look after his mother and his sisters.

104 In cross-examination, Kathryn said that, in the conversation in the kitchen of her mother's house in April 2003 after their father died, Christopher said to his sisters "I will look at something for you". She said that, at that time, her mother had no idea what had been left to her in the will, and that she was distressed about her financial situation. She disagreed that, at that time, Christopher was simply stating that he would support his mother and his sisters emotionally. She agreed that she had not, in any subsequent email or letter, which she had sent to Christopher, referred to the promise, which Christopher made to her on that day. She also agreed that, at no time before 25 October 2009, did she mention that promise to Christopher. She said that she did not need to do so, because he reminded her of the promise in a couple of conversations, and she believed that he was a man of integrity.

105 Kathryn was cross-examined about her evidence that, in that meeting, in April 2003, Christopher said that he would look at providing for his sisters after the "business" with Andrew was settled. She said that she believed that Andrew Harrison had made financial demands after leaving the farm in 2002. She agreed that he had not, in 2003, commenced legal proceedings. However, by that time, he was making demands. She stated that her belief, relating to that matter, was based on what she had been told by Christopher, her mother and her sisters at about that time. In respect of her evidence, that she had heard her father refer to Andrew as a "greedy sod", she agreed that she had not made any reference to that matter in the witness statement, which she had prepared for this case. She said that she had not considered that her father's comment to her, concerning Andrew, had relevance to the promise, which she said that Christopher had made to her.

106 In cross-examination, Kathryn confirmed that she assumed that Christopher would be left the farm, because that had been the practice of previous generations of the Harrison family. However, she had assumed that she would be paid something from the estate, and that Christopher had made a promise to that effect to their father. She said that, in the year before he died, her father had said to her "You'll do alright". She agreed in cross-examination that her father had not said anything to her that if the farm was sold she would get 10 percent of it. She agreed that, when Christopher's marriage to Jacqueline failed in 1998, her father was concerned that Jacqueline might be able to have an access to a share of the farm, by making a claim against Christopher. Thus, she had expected Christopher to be left the farm, but she had always expected that some monetary provision would be made for her sisters and herself from their father's estate.

107 Kathryn also denied that, in December 1998, she had a conversation with Christopher, in which he told her that their father had made a will, and that she would not get much out of it. She denied that, at Freedom Fields in December 1998, Christopher had directed her attention to a copy of their father's will on the top of the microwave oven in the kitchen, and she denied that she read it at that time. She also denied that she showed a copy of the will to Sue. In addition, she denied that, in late December 1998, Christopher had visited Paul and herself at their house in Axedale, and discussed the will with her.

108 Mr Shepherd cross-examined Kathryn about the promises, which she alleged that Christopher had made to her on other occasions. In particular, she reiterated, in cross-examination, her evidence concerning her conversation with Christopher after the family's Christmas lunch at their sister Sue's home in Buninyong in December 2003. She said that Sue was showing all the other members of the family a subdivision, which she was intending to undertake. She was also cross-examined by Mr Shepherd about the comment, which she said Christopher made, when he attended at their mother's house in December 2005, when other members of the family had gathered for Christmas lunch. She said that, after attending to try to find the snake which had been sighted at the property, Christopher entered the kitchen. He was quite heated, and he said "I would look after you girls". She said that she understood that he had inferred, from Louise's email of 13 September 2005, that they were seeking legal advice. However, she was unable to say why she thought that Christopher had drawn that inference at that time. She said that she had not, at that time, sought any legal advice. She said that, by 2006, when Christopher started to cut her out of his life, it crossed her mind that she should make a claim against the estate. However, she still expected him to fulfil the promise which he had made to her. Her sisters had reassured her that she should trust Christopher. She confirmed that the first occasion, upon which she sought any form of legal advice, was in June 2007, when her husband and she were updating their will. She specifically denied that, at the time at which Louise sent her email of 13 September 2005, she and Louise were discussing whether they should institute legal proceedings against their father's estate.

109 Kathryn was taken, in cross-examination, to a number of emails which she sent to Christopher between November 2005 and February 2006, in which she was seeking to re-establish contact with her brother. She agreed that, in none of those emails, did she refer to the promises, which Christopher had made to her about looking after her out of her father's estate. She denied that, in those emails, she was concealing the fact that she had already sought legal advice, because she did not have any legal advice at that time.

110 Kathryn was also cross-examined about the events, which occurred after her brother-in-law Michael died in April 2007. She reiterated that Christopher had said to her that he was going to set up trusts for the children of his sisters. She had felt angry at that time, because that was a change from his original promise. However, she agreed that she did not express that anger to Christopher. She said that their relationship was already damaged, and she did not wish to cause a further rift at that stage. She said that, after Paul had driven with Christopher to Rosebery to collect Michael Skirka's belongings, Paul reported to her, that Christopher had said that he would look after Louise. She confirmed, in cross-examination, that Paul did not say to her that Christopher had said that the farm was going to be divided into four parts, and that Christopher would make provision for her sisters and herself and her mother, once the assets of the estate had been separated. Kathryn also stated that, in 2007, that it became clear to her that Christopher was not going to honour his promise of looking after his sisters from the estate. However, her sisters persuaded her that Christopher would honour his promise, but she was really starting to have doubts about that by that stage.

111 In re-examination, Kathryn stated that she considered that the email, which Louise sent to Christopher on 13 September 2005, contained an implicit reminder to him of the promise which Christopher had made to look after his sisters. She also said that, at Christmas 2005, when Christopher came to kill the snake, after he entered the kitchen, she asked him why he was not talking to them, and she raised the subject of Louise's letter. Christopher responded, stating "I told you I would sort something out for you girls", and then left. In re-examination, she also denied that Christopher had shown her their father's will in 1998. She said that she would have regarded such an action by her brother as an invasion of her father's privacy, and she would have told her brother that she did not want to look at the will. She also said that Christopher never told her that their father had discussed with him the provisions which were going to be contained in his will.

112 Christopher Harrison gave detailed evidence, both in his witness statement, and in his viva voce evidence, concerning his role in working on, and managing, the Hopefield property, between 1985, when he returned to work at Hopefield, and the date of his father's death in April 2003. That evidence is particularly relevant in determining the quantum of the equity, if any, to which the plaintiffs are entitled, should they succeed in the case. However, it was also relied on by the defendant as explaining why his father left most of his estate to him, and why the defendant would not have made the representations and promises which were relied on by the plaintiffs in this case.

113 In summary, Christopher explained how he developed an interest in chemistry and information technology in the course of his studies at Bendigo College of Advanced Education. However, he was also very interested in working on the farm, and so he willingly acceded to his father's request that he return there in 1986. He described the rather sparse living conditions, in which he and his family then lived in the renovated shearers' quarters on the farm. He described how the collapse in the wool prices at the end of the 1980s had a drastic effect on the income and viability of the farm. The debt of the farm to the National Australia Bank grew dramatically, and the bank insisted on being given further securities in respect of it. It became evident to Christopher that, in order that the farm business survive, a significant degree of control would need to be introduced to restrict the drawings made by members of the family on the farm account. As a result, he prepared a discussion paper for members of the family, which he used as a basis to introduce important austerity measures. He closed the accounts which the partnership had with thirty or forty retail outlets, and to which members of the family had booked their own personal expenses. He persuaded members of the family to accept a regimen, whereby single persons received drawings of $150 per week, and married couples received $200 per week, together with a further $25 per week for each child. It was also agreed that certain expenses, such as health insurance and utility expenses, for each member of the family, be paid from the farm account.

114 At the same time, Christopher introduced two further important changes. First, he arranged for the replacement of the antiquated equipment, which was used on the farm, by machinery which would enable it to improve its productivity. Secondly, having obtained advice from a taxation expert, it was decided that the farm business should be conducted by a discretionary trust, in place of the existing partnership. As a result, CBH was incorporated in 1995, and a trust deed was executed appointing it the trustee of the Hopefield Trust.

115 During the 1990s, the principal responsibility for carrying out the day to day work on the farm was undertaken by Christopher, together with his two cousins, Andrew Harrison (the son of Noel) and Ian Harrison (the son of Cliff Harrison). At the same time, Christopher was principally responsible for the direction and management of the farm. During the 1990s, Christopher maintained the farm's primary books of account, and he designed an accounting program, which enabled him to maintain appropriate control over the cash flow of the farm. The program, which he designed, was also marketed to other farmers by Mr Ian Itter, a computer consultant. Christopher was paid a royalty for each program sold by Mr Itter.

116 In 1993, Christopher's wife Jacqueline purchased a house at 2208 Boort Durham Ox Road from the farm partnership. Christopher and his wife had two children, a son born in 1987, and a daughter born in 1989. In 1998, Christopher's marriage to his wife failed. The divorce proceedings were traumatic for him, and he received a substantial amount of emotional support from his sister Kathryn at that time. As part of the divorce settlement, Christopher purchased the house from his wife for $30,000. He took a mortgage from the National Australia Bank in order to finance that purchase. Currently, his property is worth about $70,000, and the debt to the bank is approximately $26,000.

117 In his evidence, Christopher stated that the period up to 1998 was particularly tough for farmers. That year was the second year of the drought, and the farm was just breaking even. There were concerns as to the question of the succession, of the next generation of the Harrison families, to ownership of the Hopefield property. During that period, Christopher had a number of conversations with his father concerning his father's will. In November 1998, Kenneth told Christopher that he did not have any cash, but that he would leave the farm to Christopher, and that Christopher would be personally liable for Kenneth's debts. Kenneth told Christopher that he wanted Christopher to look after his mother. Kenneth said that she would be left a small amount of money and some shares, and that Jillian would make a will leaving the residue of her estate to Christopher's sisters, and any farming interest which Jillian owned to Christopher. Kenneth explained to Christopher that it was in the interests of maintaining the people, who were living on the farm, that he should leave his interest in the farm to Christopher.

118 Christopher attended with his father when he made his will. After Kenneth executed the will, they took a copy of it to his home, and it was placed on the microwave oven in the kitchen of Freedom Fields. At that time, Christopher considered that it was imperative that he tell his sisters, and discuss with them and their partners, the contents of the will. He wanted to ensure that there would be no difficulty relating to the will when his father passed away. He said the first opportunity he had was in late 1998 or early 1999 when Kathryn and Sue were visiting Freedom Fields. Christopher had a talk with Kathryn in the kitchen about the farm. Christopher explained to her the effects of the wool crash and the difficult conditions, which people had had to live under. He said to Kathryn that their father had made a will, and that there was "not much in this for you". Christopher told Kathryn that their father had made the will in that way, in order to acknowledge the contributions, which different people had made to the farm, and in order to ensure that the farm remained viable. He indicated to Kathryn that the will was on top of the microwave. Christopher stated that Kathryn then commenced to read the will. While she was doing so, Sue entered the kitchen, and Kathryn showed the will to her.

119 Christopher stated that, in early January 1999, he had further conversations with his sisters concerning their father's will. He visited Kathryn and Paul at their home at Axedale. They had a long discussion concerning the will. He again explained to them the effects of the wool crash and the history of the farm, and he outlined the contributions, which people had made to the farm. Christopher stated that, while he was outlining those matters, Kathryn and Paul asked him a number of questions. Christopher told them that the farm was carrying a lot of debt, and that efforts were being made to address it. He told them about the system, which had been instituted to restrict the drawings from the farm made by members of the family, and he said that Kenneth had stated that he had made the will, leaving the farm to him, in order to ensure that it remained operational. At the end of the conversation, Christopher asked Kathryn and Paul each the question "Is this okay?", and both of them replied "Yes".

120 Christopher stated that, at the same time, he also spoke to Sue in the lounge room at Freedom Fields. He again explained to her the matters, which he had outlined to Kathryn and Paul. In his evidence, Christopher stated that Sue exhibited less interest in the subject matter than Kathryn and Paul. She also indicated that she was content with the disposition which her father had made of his estate in his will. In the same period, Christopher had a conversation with Louise and her husband Michael at Freedom Fields. He again outlined to them the matters which he had told to Kathryn and Paul. He asked each of them "Are you okay with this?" and Louise said "Yes" and Michael said "Okay".

121 Christopher then gave evidence about Andrew Harrison. He described how Andrew had worked hard on the farm since 1981. In 2002, Andrew left the farm, expressing his desire to have a change from farm life for three years. Christopher next saw Andrew at Kenneth's funeral in April 2003. Christopher stated that he had never heard his father call Andrew a "greedy sod". At that time, Andrew had not made any demand for financial reparation from the farm. He denied that there was any discussion, at the time of the funeral, as to whether Andrew should be permitted to be a pallbearer.

122 Christopher denied that there was any discussion with his mother and his sisters, between the time of his father's death and the funeral, relating to his father's estate. He said he recalled an incident when his mother was crying and saying "What am I going to do?", in reference to losing her husband. Kenneth and Jillian had been inseparable, and they had been together for a long time. Christopher denied that his mother at that time was upset or concerned about financial matters. Rather, he said that, at the time his father died, Kenneth and Jillian had been living on a fixed remuneration system, which automatically continued after Kenneth's death. Christopher stated that, at no time after his father's death, did his mother contact him, and complain of not having any money. In particular, Christopher denied that, at any time between his father's death and the funeral, did he say to his sisters that once the "business" with Andrew was sorted out, he would look at making provision for his sisters. He also denied stating to Louise, between 2003 and 2005, that, once he had sorted out the farm business, he would look at making provision for her.

123 Christopher stated that he first consulted Basile & Co, solicitors for the estate, six weeks after Kenneth's death. Jillian attended the reading of the will in late May 2003. Later that year, she requested a copy of the will, in order that she could effect a transfer of her late husband's AMP shares to herself. Christopher also stated that Jillian attended on the solicitors on a number of occasions at that time, in order to assist with the administration of the estate.

124 Christopher disputed the evidence of Louise, that she and her sisters had made requests of him as to when the will would be settled. He also stated that he did recollect a visit to him by his sister Sue on 30 July 2005, but he denied describing the will as a "business transaction". He denied stating to Sue that he was thinking of setting up a trust fund for her sisters and herself. Christopher said that, at that time, he did not have the financial means, or the ability to access money, in order to set up such a trust. At that time, he considered that Sue was in a relatively good financial position, and that Louise was financially comfortable. Kathryn and Paul had a good house, and they had the trappings of being prosperous. On the other hand, Christopher had few assets, and a low income. Christopher denied that, at any time before 25 October 2009, he conveyed to any of his sisters that he would make financial provision for them.

125 Christopher denied that, at the Christmas 2003 family gathering at Sue's house in Buninyong, he said to Kathryn that he would look after her. He further stated that, at that time Andrew Harrison, had not made any financial demands on the farm, and that he (Christopher) had not had any contact with Andrew, since the day of the funeral. Christopher stated that he did attend at Freedom Fields to try to find and kill a snake on 10 December 2005. It was in the middle of the harvest season. After trying to find the snake, he went inside, greeted everyone, and left. He denied saying, on that occasion, that he would look after the members of his family.

126 Christopher then referred to two emails from his sister Kathryn, one dated 8 April 2005, and a second dated 18 May 2005. Those emails indicated to him that Kathryn was having a difficult time coming to terms with her sadness about the fact that her father had not recognised her in his will. Christopher continued to relate normally with his sister Kathryn, but he was becoming concerned that her view relating to Kenneth's will, as expressed to him in 1998, was beginning to change.

127 In the meantime, in August 2005, Andrew Harrison contacted his father, Noel, and Christopher, and requested a settlement, consisting of payment for the years of work, which he had contributed to the farm for low wages. In response, Christopher organised a meeting of members of the family in September, but he did not discuss Andrew's demands directly with his sisters.

128 Christopher then referred to the email sent to him by Louise on 13 September 2005. He stated that he regarded the email as being an honest statement of Louise's feelings, although he disagreed with some parts of it. He said that he did not regard the email as implicitly referring to any assurances he had previously given to Louise (which assurances he denied in any event).

129 However, subsequent to receiving that email, Christopher met with his sister Sue at his home at Durham Ox. Sue told him that Kathryn was encouraging her sisters to seek legal advice in respect to making a claim on their father's estate. Christopher was very upset by that, and he felt betrayed by Kathryn and Louise. At that time, he was under pressure to resolve the issues relating to Andrew. Instead of receiving support from his sisters, one of his sisters was encouraging the others to take legal action. Further, in her email of 13 September 2005, Louise had stated she did not want the farm; yet, at the same time, she was discussing taking legal action against her father's estate.

130 As a result of learning that his sisters were contemplating legal proceedings, Christopher reduced the amount of contact which he had with his sisters. He denied completely cutting ties with them, and he stated that he remained courteous and pleasant to them when he saw them.

131 In April 2007, when Christopher heard that his brother in law, Michael Skirka, had died, he travelled to Tasmania with his mother. He said that he did not hear any discussion at that time to the effect that Michael had not had life insurance. He denied having any discussion with Louise, relating to making provision for her, or other members of the family. Further, he denied having any discussions with Louise about establishing a trust for her children. Christopher stated, in his evidence, that he did not have the financial means to make further provision for his sister, or her children, or to establish a trust for them. Furthermore, Louise had a substantial house, and he understood that she was comfortably provided for.

132 Christopher further denied that, when he drove with Paul to Rosebery, he stated that Andrew's claim was close to resolution. In fact, shortly before the death of Michael Skirka, Christopher had received notice that a writ had been lodged in the Supreme Court. Christopher stated that he did not say to Paul that he would care for Louise, and that she would not have to worry about money. In his evidence, Christopher stated that at that time he did not trust Paul, since he was the husband of his sister Kathryn, from whom he was then estranged. Christopher further denied saying to Paul that the farm was being divided into four parts because the water rights had been unbundled. At that stage, the farm was not in the process of being divided into four parts, and it has not been divided since.

133 In September 2007, Christopher and Kirsty returned to Tasmania, as they were contemplating living there. He denied that he had a conversation with Louise, at that time, about providing financially for her family, and he denied that he told Louise that he would consider establishing trusts for her sons.

134 Christopher stated that, in January 2008, he attended the house, in which Sue was living in Sullivans Road, Strathfieldsaye, in order to take photographs of Sue's baby son, Lachlan. He said that Eliza Harrison was not present on that occasion. Christopher denied saying that he would pay for Eliza's university fees, and he denied telling Sue that he would set up a trust, like the Myer Trust, from which everyone could get an income. He also denied saying that each of the grandchildren would shortly receive $30,000.

135 Christopher then gave evidence concerning the approach made to him on behalf of VicSuper to purchase the farm. He stated that he was first approached with such a proposal in June 2007 by Mr Cullen Gunn from Kilter Consultancy. Christopher stated that, before that time, he had not had any intimation that the superannuation company was interested in purchasing the farm. After Mr Gunn explained to him the interest of VicSuper in purchasing the property, Christopher prepared a document, which was circulated to other members of the family, and which he attached in an email to Mr Tamblyn of the National Bank on 26 July 2007. The document was to serve as a discussion paper at a meeting of the family, which was to be chaired by Mr Tamblyn. Subsequently, the proposal on behalf of VicSuper did not proceed, because there was no consensus among the Harrison family that the property should be sold.

136 Christopher gave evidence concerning the occasion, upon which Sue and his mother attended at his home at Durham Ox in November 2009. On that occasion, Christopher and Kirsty had friends staying with them. Sue telephoned him, and requested that he meet with her. Christopher agreed to that request, because Sue sounded agitated on the telephone. When Sue arrived, she and her mother met Christopher on the back veranda. Susan stated that her sisters were going to take Christopher to court. She said "I think we can stop them if you transfer 40 percent of the farm into mum's name". She stated that such a step was necessary, in order to protect the farm against Christopher's ex-wife, Jacqueline. Christopher responded by asking Susan to leave, which she did. He denied saying to Sue that he would prefer to spend all the money on legal costs, rather than let them have a cent of it. Christopher denied that Sue went inside and spoke to Kirsty at that time. He also denied telephoning Sue after she had left, and telling her that he might want to purchase another farm for himself.

137 In cross-examination, Christopher stated that the only occasion, on which the sale of the whole of the Hopefield property was considered, was when he was approached by VicSuper in the middle of June 2007. He considered that the proposal by VicSuper had merit, because the price, which Mr Gunn suggested that VicSuper might pay, was almost double the market value of the property. In the discussion paper, which he distributed to members of the family, he indicated that the value of each "interest" in the farm would be worth $6,000,000, which, when invested at 7 percent, would yield an income of $420,000 per annum. However, he did not consider that the Harrison family would be amenable to accepting the proposal, and therefore, at that time, he gave no consideration as to what he would do with his share of the proceeds of the sale. In particular, he did not consider whether he would give his sisters any share of the proceeds of the sale of the farm, if it were to proceed.

138 Christopher also stated that in the 1990s there was some discussion, among members of the family, as to the issue as to who should succeed as the next generation of owners of the farm. Those discussions took place between Christopher's father, his uncles, his cousins Andrew and Ian, and himself. At one stage, one of the proposals was that the farm should be divided between Andrew, Ian and Christopher, who were the three people who were working on the farm. He said that, at that stage, there was no conflict between the families. He stated that, in about 2002, a consultant held a meeting with members of the family, in which some issues were discussed. In the course of that meeting, it was agreed that the level of drawings, for each family unit, should be increased from $250 per week to $400 per week. He stated that the fact that that meeting took place was not evidence of any discord in the family. Rather, from time to time, the family used to engage a consultant, in order to examine some issues relating to the farm. When Andrew left the farm, relations between Christopher, his uncles, his cousin Ian and himself were good, and Andrew had not made any claim on the farm at that stage.

139 Christopher stated that, in 1997, Andrew, Ian and he attended on Mr Louie Basile, a solicitor in Kerang, in order to obtain general advice about the rights of parties to contest wills, and, in particular, how provision should be made in a will in order to protect it from challenge. In cross-examination, Christopher described that attendance as part of the generational change on the farm. He understood that anyone, who might be interested in his father's estate, including his sisters and his mother, could contest his father's will.

140 Christopher stated that, in late 2006, he left the farm, because there was a breakdown in the relations between himself and his cousin Ian. Shortly after he left the farm, he gained employment with the Victorian Irrigators Council. He stated, in cross-examination, that he had always had a commitment to maintaining the unity of Hopefield. However, he agreed that, when he left the farm, he consulted a solicitor, Mr Peter Cahill, of Bendigo. Mr Cahill sent a letter dated 8 December 2006 to Ian Harrison, referring to the discord which had then arisen between Christopher and Ian, and stating that Christopher wished to meet with Ian in order to enable the farming operation to be divided between Ian Harrison, Andrew Harrison and himself. The letter concluded by stating that, if such an agreement were not reached, Christopher would make an application to the Supreme Court for the sale of the property, and for the winding up of CBH. When that letter was drawn to his attention in cross-examination, Christopher stated that the letter was sent on his behalf in anger, that it was purely a threat, and that he had had no intention to proceed with the division of the property at that time.

141 Christopher further stated that, when his father died, he was conscious of the fact that his sisters could challenge his father's will. However, they had given him an assurance, in 1998, that they would not do so.

142 In cross-examination, Christopher reiterated that, when Andrew Harrison left the farm in 2002, he did not make any financial demand. Christopher stated that he did not hear his father describe Andrew as a "greedy sod". In fact, at Andrew Harrison's request, his house was left vacant for three years, because he did not want other people living in it, while he was absent from the farm.

143 Christopher also denied that his father had said to him that he was looking to Christopher to take care of his sisters financially after his death. He said that his father was well aware that the farm produced very little income, and that Christopher would not be in a position to support his sisters. He said that all members of the family, who worked on the farm, including his father, were on low pay, and they were not accumulating any assets of their own. Christopher denied that his father ever mentioned that each sister would receive ten percent of his share of the farm, if it was sold.

144 Christopher further denied that he had said to his mother and his sisters, in his mother's kitchen after their father's death, that he would financially provide for his sisters. He said that there was no discussion about how his mother would be looked after financially. His mother was not concerned about her financial position, because she was continuing to receive payments from the farm. Each of his sisters had large incomes, while he, Christopher, was living on cash drawings, together with fringe benefits totalling about $4,000 per annum.

145 Christopher further denied that, subsequently, Louise telephoned him, stating that their mother had expressed concern about her financial position. Jillian had continued to receive her weekly payments of $400. She also received some remuneration for cooking the meals for her brother in law, John Harrison. Christopher denied saying to his sisters, at any stage, that his father's estate was complicated. In fact, it was not complicated. He categorically denied saying to his sisters that he would provide financial support to them. The suggestion that he would do so was ridiculous, given the fact that his sisters were in a far superior financial position than he was. He also denied that he described the will as a "business transaction" to his sister Sue. He agreed that he took his mother to the estate's solicitors on 14 May 2004, and he said that he took his mother to those solicitors on a number of occasions. She was not upset about what she received in the will. In fact, she had assisted in the administration of the estate, by obtaining and delivering documents to the solicitors.

146 Mr Waddell cross-examined Christopher, by putting to him the evidence of each of the three plaintiffs, in respect of the various occasions on which they stated that he had given them an assurance that he would make financial provision for them. In cross-examination, Christopher denied making each of the representations alleged by the plaintiffs. In particular, he denied that, when his sister Sue told him that Kathryn was encouraging Louise to obtain legal advice, he said to Sue "My cousin's taking me to court, and now my sisters are". In fact, at that stage, Andrew Harrison had not commenced any proceeding against the family or against CBH. He again denied making a promise to Louise, in April 2007, that he would provide financial assistance for her and her two sons, after her husband's death. He said that, in fact, Louise and her husband had appeared to be quite prosperous, living in a large home on a beachfront in Hobart, driving four wheel drive vehicles, and going overseas on a number of trips. He also denied saying to Paul, on the trip to Rosebery, that there had been an offer to sell the farm. In fact, the first approach from VicSuper did not take place until mid-June 2007.

147 Christopher was also cross-examined about the occasion, upon which Sue and his mother attended at his home in Durham Ox in November 2009. He denied that, when Sue asked him to consider putting a percentage of the farm into his mother's name, he replied by saying that his sisters were being greedy, and that he would rather that the matter proceed through the courts and spend every last cent on legal costs, than give his sisters anything. He also denied saying that he would use "every bit of dirt" which he had on his sisters. He reiterated that, when his sister Sue spoke to him, he asked her to leave. Sue remained outside, and Kirsty spoke to her there. Christopher also denied that Sue said to him that she was going to join her sisters, if he did not negotiate by putting some of the property into their mother's name. Christopher stated that he had the impression that Kathryn and Louise were contemplating legal proceedings against him, and not Sue. He also reiterated his denial that he had telephoned Sue after she left, and told her that he might need to buy a farm.

148 In answer to questions from myself, Christopher stated that, when Andrew Harrison left the farm in 2002, he went to live in Cavendish. Initially, Andrew was working on a farming property, but then he gained employment as a stock agent with Landmark. There was great disappointment in the family, when Andrew left, and Christopher tried to persuade him to stay. Christopher felt that when Andrew left, he let the farm down. In addition, his departure from the farm altered the balance of the family structure, which was further significantly altered when Kenneth died. Andrew and Christopher had held common views about the management of the farm. However, after Andrew left and Kenneth died, Clifford and Ian Harrison took over, and managed the farm in a manner with which Christopher disagreed. Christopher stated that, at no time, did Andrew send a letter of demand, before he issued the writ in the Supreme Court in April 2007. When Noel told Christopher, in August 2005, that Andrew wished to have some recompense for his work on the farm, Christopher spoke to Andrew. Andrew did not make any threat of litigation at that time.

149 In re-examination, Christopher stated that he was not contemplating a division of the farm in April 2007. He said that, in January 2008, he did not have the financial capacity to arrange payments of $30,000 to each of the eight grandchildren. Nor did he take any steps to make any such payment.

150 In addition to the evidence of Christopher Harrison, four other witnesses were called on his behalf, and a witness statement of another witness was tendered by consent. It is only necessary to refer to the evidence of those witnesses in brief terms.

151 The first witness was Mr Robert Tamblyn, who was the manger of the Kerang branch of the National Australia Branch. Mr Tamblyn was the rural finance manager of the Kerang branch from 1993 to 2005, and in that capacity he had significant contact with the members of the Harrison family. In his witness statement, Mr Tamblyn described the financial difficulty brought about by the wool crash in the late 1980s, and the financial pressure which was on the Harrison partnership in the early 1990s. He also gave evidence as to the role, which Christopher Harrison played, in preparing a plan to reduce the debt of the farm, and also in compiling a plan which involved extensive improvements being made to the property. Mr Tamblyn stated that much of the decision making in respect of the dealings with the bank was undertaken by Christopher. In 1995, Christopher proposed a restructuring of the NAB financial accommodation, by replacing the existing partnership with CBH, as trustee for the Hopefield Trust, as the entity which farmed the property. Between 1994 and 1996, Christopher commenced to apply for grants for financial assistance to help upgrade Hopefield, and that, as a result, a significant amount of drainage works and levelling of the property was undertaken, in order to enhance the irrigation of the farm. Mr Tamblyn also gave evidence as to the various strategies implemented and undertaken by Christopher, including the purchase of upgraded equipment in order to improve the crop productivity of the farm. He stated that, if Christopher had not intervened and completely restructured the farm, then Hopefield would have had to sell part of the land and water rights, which would have had a significantly adverse effect on the long term viability of Hopefield.

152 Mr Tamblyn also stated that, in the years leading up to Ken Harrison's death, Kenneth told him that it was always his plan to leave his share in the farm to Christopher, and that Christopher would have the responsibility of looking after his mother, Jillian.

153 In evidence before me, Mr Tamblyn stated that, when Andrew Harrison left the farm in 2002, other members of the family were disappointed, because Andrew had been one of the most productive workers on the farm. However, Mr Tamblyn was not informed then of any financial demands made by Andrew on the farm.

154 In cross-examination, Mr Tamblyn stated that, between 2002 and 2005, he had regular meetings with members of the family, including Noel, Cliff, Jack, Chris and Ian Harrison. During that period, he was not told that Andrew had made any claim against the family. He stated that the members of the Harrison family, with whom he dealt, were always candid and forthcoming about any financial issues, which might affect the security which the bank held over the farm. If Andrew had made a claim at that time, Mr Tamblyn said that he had no doubt that he would have been informed of it. He said that, at the time Andrew left the farm, he had a loan of $24,000 from the NAB, which he had spent on some improvements to his house at Hopefield. After Andrew left the property in 2002, CBH took over the loan repayments on behalf of Andrew, but the house was kept vacant, in case Andrew returned. In 2005, when Andrew applied to the Casterton branch of the NAB for a further loan, CBH paid out the balance of the $24,000 loan, in order to enable Andrew to receive the new loan.

155 Mr Tamblyn also stated that, in late July 2007, he chaired a meeting of the Harrison family, which had been convened in order to discuss an expression of interest by VicSuper for the purchase of Hopefield farm. Mr Tamblyn stated that that was the first expression of interest in the farm, which had been brought to his attention. Christopher had rung him approximately a fortnight previously, in order to tell him of the expression of interest.

156 The next witness called for the defence was Kirsty Orr, who is the partner of Christopher. Kirsty met Christopher in about July 2006, and they commenced their relationship in November 2006.

157 In April 2007, Kirsty attended Hobart on the day of Michael Skirka's funeral. She said that, when she went to Tasmania on that occasion, she did not hear any statement made by Christopher concerning looking after Louise financially. However, she accepted that she was not at Christopher's side all of the time when she was in Hobart on that occasion. In September 2007, she again accompanied Christopher on a visit to Louise in Tasmania. On that occasion, she did not hear any discussion between Christopher and Louise relating to Christopher providing financial assistance to Louise. She accepted that she was not with Christopher all of the time. In cross-examination, she stated that, on that visit, Louise had picked up Kirsty and Christopher at the airport. When they arrived at Louise's house, they drove into the carport. They did not enter the house through the front steps. Rather, they entered through the side entrance and there were no steps. She said that Christopher did not give Louise a cuddle, and say that he would look at establishing trusts for Louise and her sons, and for the whole of the family. Kirsty also stated that she had never heard Christopher speak of setting up a trust for his sisters, or for the children of his sisters.

158 Kirsty further stated that, in mid-January 2008, Christopher and she attended at Sue's house in Bendigo. Sue had recently moved to Bendigo, and Christopher and Kirsty attended there, in order to take photographs of Sue's children. She said that Christopher and she were at the house for about one and a half hours, and Eliza was not present at all on that occasion. Kirsty had a good recollection of the visit, since it was the first occasion, upon which they had been to Sue's house. She said that she was with Christopher for most of the time while they were there, other than when Christopher stepped outside, on his own, in order to have a cigarette. She said that she did not hear Christopher say anything about paying, or assisting with payment of, Eliza's university accommodation. Nor did she hear Christopher say to Sue that their late father's will was a business transaction, that he would set up a trust, or that each of the grandchildren would shortly be receiving $30,000. In cross-examination, Kirsty was adamant that Christopher had only attended at Susan's house in Bendigo on one occasion, in order to take photographs of the baby Lochlann. Kirsty had no recollection of Christopher going back to Susan's place for a second photograph session.

159 Kirsty also gave evidence as to the occasion on 25 October 2009, when Sue and Jillian attended at their home at Durham Ox. On that weekend, Kirsty and Christopher had friends staying with them. She said that when she saw Sue arrive in her vehicle, she went outside. When Sue stepped onto the patio, she said something about ten percent each, and that legal action would not be taken. At that stage, Kirsty went back inside, in order to ensure that her friends did not become involved in a family discussion. After five minutes, Kirsty came back out again. Sue was in tears, and sitting on a garden bench. Kirsty said "Don't worry, it's not coming from a good place, it won't end well for them". Kirsty thought that Sue and Jill were both upset at that stage, because Kathryn and Louise were threatening legal action against their father's estate. Christopher, at that stage, was saying "It's not right". Shortly after that, Sue and Jillian left.

160 The final witness, who gave evidence in respect of this aspect of the case, was John Harrison ("John"), the brother of Kenneth, and the uncle of the plaintiffs and the defendant. John gave evidence about the circumstances in which Andrew Harrison left the farm. John stated that he had paid $80,000 to build a house on the farm for Andrew, and in which Andrew lived with his wife and children. When Andrew left the farm in 2002, he did not make any request or demand for payment. After his departure, Andrew's house was left vacant for at least three years, because it was expected that he might return. John had never heard Kenneth refer to Andrew as a "greedy sod". John was close to his brother, and each night they would speak on the telephone. Andrew attended Kenneth's funeral, and no-one in the family had said he should not be welcome at it. It was not until about three years later that Andrew first suggested that he should have a share of his own father's (Noel's) estate. Subsequently, Noel and John were served with a writ. Noel agreed to pay Andrew a sum of $1.3 million, although that was against the advice of John. John also stated, in his evidence, that, in his discussions with his brother, Kenneth had never said that he wanted to leave the farm to his daughters. In cross-examination, John stated that, in 2002, Andrew Harrison never expressed any unhappiness to him about the low level of pay, which he was receiving.

Analysis of evidence of promises by the defendant

161 As the above summary of evidence demonstrates, the plaintiffs, the defendant and Paul Somerville each gave evidence in chief, and were cross-examined, at substantial length. I had the opportunity to observe them closely while they were giving their evidence. Each of them, as well as the other witnesses, including Eliza Harrison, Kirsty Orr and John Harrison, gave their evidence, and responded to cross-examination, in a forthright and credible manner. I could not detect in the demeanour of any of the witnesses any deliberate attempt to fabricate their evidence, or to mislead the court. Having had the opportunity to observe each of the witnesses carefully, I came to the conclusion that each witness was endeavouring to relate what that witness sincerely believed to be his, or her, honest recollection of the events, which were related in their evidence.

162 In determining the question, whether the plaintiffs have established that the defendant did make the promises and representations, which they have stated in their evidence, it is important to bear in mind the context in which this dispute has arisen, and in which it has come before the court. There was clearly a very strong emotional overlay to the case, which affected the manner in which the plaintiffs, the defendant, and Eliza Harrison, all gave their evidence. Each of them were visibly, and understandably, affected by that factor. Before the events occurred, which brought this dispute to court, the plaintiffs and the defendant constituted a very close and united family. In the past, the plaintiffs and the defendant have each been unswervingly loyal to each other. I have no doubt that the plaintiffs and the defendant still care strongly for each other. They were unable to resolve their differences, notwithstanding a number of admonitions, which I gave to them during the case, that they should endeavour to do so. It was evident that their inability to resolve the dispute in this case has been a source of profound pain to the plaintiffs and to the defendant.

163 Some of the principal witnesses were more articulate and coherent than others. For example, Kathryn does not have the same facility of expression as her sisters, and in particular Sue. On the other hand, Christopher is somewhat laboured in the manner in which he expresses himself. I perceived that the manner, in which he gave his evidence in this case, was a reflection of his day to day conversational style. Nevertheless, he did not make any conscious effort to avoid questions, or to obfuscate.

164 The accounts given by the plaintiffs on the one hand, and the defendant on the other hand, are, of course, diametrically opposed, in respect of the critical events, which are the subject of this proceeding. It would, however, be wrong for me to prefer the accounts given by the plaintiffs and their witnesses, simply by dint of the weight of the number of the witnesses, who supported the plaintiffs' case. This is particularly so, because of the closeness of the relationship between the three plaintiffs, and the very real risk that they may have, unintentionally, affected each other's recollections of the events which are the subject of this case. I hasten to add that there was no evidence that they have deliberately endeavoured to confabulate the accounts which they gave before me. Rather, a number of differences, in detail, in their accounts gave me confidence that that was not the case. However, it would be unrealistic not to expect that there has been, between them, some discussion about the events and circumstances, which have brought about the present dispute, and thus there is, at least, a realistic possibility that they may have, in some regards, unintentionally affected each other's recollections. It is for that reason that I do not consider that I can determine the current dispute on the basis of the number of witnesses who supported the plaintiffs' case, as distinct from the fact that the defendant's evidence (with a couple of exceptions) stands unsupported by any other witness.

165 In viewing the evidence, I have borne in mind that each of the key witnesses have been recalling events in the context of a highly emotionally charged dispute, in which each of the parties is sincerely convinced of the rectitude of his or her case. In such a case, the memory and recall of the witness can be affected by the perspective of the individual witness. This is particularly so in the context of a family dispute. Indeed, some of the emails written by Louise and Kathryn, and which were tendered in evidence, are compelling testimony as to the fraught emotional undercurrent, which is the backdrop to the dispute in this case.

166 Thus, while, as I stated, I could not detect any attempt by a witness to consciously fabricate his or her evidence, it is clear that the memories of each of the key witnesses have been susceptible to the effect of the prism, through which each of the respective sides in the case has viewed the events, which were the subject of the witness' evidence.

167 An additional difficulty, in determining the factual issues in this case, arises from the fact that Jillian Harrison was not called as a witness. Jillian was, in many respects, intimately involved in a number of the events with which this case is concerned. However, she is elderly, and does not enjoy good health. It would have been most unfortunate if she had been required to become involved, as a witness, in the dispute between her adult children. Theoretically, she was available to both sides to be called as a witness. However, realistically and understandably, both sides elected not to call Jillian. It was sensibly agreed that I should not draw an inference, based on the principle stated in Jones v Dunkel[3], arising from the fact that she was not called.

168 Ultimately, it is necessary for me to examine the particular promises or representations alleged to have been made by the defendant to the plaintiffs, and the circumstances in which those promises or representations were alleged to have been given. It should be understood that, in preferring the account of either one side or the other in respect of a particular promise or representation, I would not, thereby, be finding that the other side had deliberately concocted his or her evidence. As I cautioned the parties at the commencement of this case, the most that a judge, in such a position, can do, is to make findings on the balance of probabilities, based on the evidence which is put before the court. That is the task which I must now undertake.

169 There are a number of background facts which, I consider, are important in determining whether I am satisfied, on the balance of probabilities, that the defendant made to the plaintiffs the promises and representations alleged by them, and whether they relied on those promises and representations to their detriment. The first such matter relates to the fact that there was some dispute in the evidence, between the parties, as to the timing of three events, which were connected with the issues in this case, namely: first, the date upon which Andrew Harrison first made financial demands that he be compensated for the work which he performed on the farm; secondly, the date upon which the expression of interest by VicSuper in purchasing the farm first came to the attention of the parties; and, thirdly, the date upon which Christopher ceased to work at the farm.

170 The dispute in the evidence relating to Andrew Harrison is particularly relevant, because the plaintiffs, and in particular Louise and Kathryn, have stated that, when Christopher made a number of promises to them, in the first two years after their father's death, he qualified those promises by stating that he would not be able to make any provision for them, until the issues relating to Andrew had been resolved. The plaintiffs, and Paul, each gave evidence that they had either participated in, or heard, conversations, both before the death of Kenneth, and shortly thereafter, to the effect that Andrew was making substantial demands for payment from the farm. Indeed, in cross-examination, Louise stated that, in the week after her father's death, there was a lot of discussion about Andrew making a claim for $300,000. The plaintiffs gave evidence, to which I have earlier referred, that, before he died, Kenneth referred to Andrew as a "greedy sod", because he had made such a demand on the farm. The plaintiffs gave further evidence that, after their father died, there was discussion in the family as to whether Andrew should be permitted to be a pallbearer at Kenneth's funeral. Paul, at a later date, stated that, when he drove with Christopher to Rosebery to collect Michael Skirka's personal effects in April 2007, Christopher told him that the issue relating to Andrew had been almost resolved.

171 By contrast, the evidence of Christopher Harrison was that, when Andrew left the farm in 2002, he did so on terms which were amicable with the rest of the family. Although other members of the family were disappointed that he was not remaining on the farm, nevertheless there was no financial dispute between them. In particular, Andrew did not, then, make any financial demand on the farm. Rather, his home was left vacant for three years, in the expectation that he might return to the farm. Christopher's evidence was that Andrew did not make any financial demand until August 2005. He first heard of such a demand through his uncle Noel, and then he spoke to Andrew about it in person. Christopher further stated that, just before he departed for Tasmania in April 2007, he learnt that Andrew had "lodged" (filed) a writ in the Supreme Court. He received that writ on his return from Tasmania. The dispute with Andrew was not then close to resolution. Christopher stated that that dispute was only resolved, subsequently, in May 2007, when his uncle Noel agreed to pay Andrew the sum of $1,300,000. Noel made that agreement with Andrew against the objections of both Christopher and John Harrison.

172 I am satisfied, on the balance of probabilities, that the evidence given by Christopher, as to the timing, and nature, of the demand made by Andrew, is correct. Christopher was a first hand witness to the demand made by Andrew. He was a defendant to the writ ultimately issued by Andrew, and he was directly a party to the dispute. More significantly, his evidence, as to the timing of the first demand by Andrew, is supported by the evidence of both Mr Tamblyn and Mr John Harrison. I was impressed with both of those witnesses. Mr Tamblyn is an old fashioned banker, who regarded the Harrison family as a long standing client. He had a detailed familiarity with the financial set up of the farm, and the financial affairs of the Harrison family. Mr Tamblyn was clear in his recollection that he did not learn, or know, of any demand made by Andrew against the Harrison family before 2005. In particular, he stated that it had never been suggested to him that Andrew was demanding $300,000 or any other sum. He was confident that, if any such demand had been made by Andrew, it would have been brought to his attention by the Harrison family. Both Mr Tamblyn and John Harrison stated that, for some time after Andrew left the farm, his house was kept vacant, in case he returned. That circumstance is inconsistent with Andrew having made a demand for a substantial payment on the farm.

173 John Harrison added important support to the evidence given by Christopher Harrison in this regard. He stated that he had never heard his brother Kenneth refer to Andrew as a "greedy sod". He further stated that, when Andrew left the farm in 2002, he did not make any request for payment. It was not until at least three years later that Andrew suggested that he should receive some funds from his father.

174 Mr Waddell sought to account for the recollections of the plaintiffs, and Christopher Harrison, concerning the Andrew Harrison matter, by suggesting that, nevertheless, there may have been some "rumblings" by Andrew in relation to the fact that he had worked for many years on the farm for little pay. However, John Harrison and Christopher Harrison both rejected the notion that Andrew had expressed any unhappiness concerning the level of his remuneration. As John Harrison stated, in cross-examination, farm people (including Andrew) were accustomed to living on small earnings, and Andrew had never expressed any unhappiness about the low pay which he was receiving.

175 In those circumstances, and based on that evidence, I am satisfied that Andrew Harrison did not make any financial demand on the farm, or on any member of the family, for recompense for the work which he had performed on the farm, until August 2005.

176 Mr Waddell also sought to account for the recollections of the plaintiffs and Christopher Harrison, concerning the Andrew Harrison issue, by suggesting, alternatively, that there were different levels at which Andrew Harrison was being discussed within the Harrison family. In particular, he submitted that it was open for me to infer, from the evidence, that the plaintiffs and Paul Somerville gained their information from discussion amongst themselves and with their mother. On the other hand, the true facts were known to Christopher and their father.

177 The difficulty with that explanation is it does not fit the evidence. Each of the plaintiffs, and Paul Somerville, stated that they learnt, of the demand made by Andrew for money, in discussions with Kenneth and Christopher. In her evidence in chief, Louise stated that her father had told her, before he died, that Andrew had left the farm and was demanding a sum of money. In cross-examination, she said that her father had spoken to her about it, and referred to Andrew as a "greedy sod". She said that the demand made by Andrew was a significant issue to Kenneth, because he felt betrayed by Andrew. In cross-examination, Sue stated that, in April 2003, Christopher had told her that Andrew had contacted the family about being paid out from the farm. She said that in early 2003 Kenneth and Christopher had both talked about the fact that Andrew was making financial demands on the family. In cross-examination, Paul Somerville stated that he recalled Kenneth Harrison describing Andrew as a "greedy bugger". He said that he learnt of the financial demand made by Andrew in conversations with Kenneth, Christopher and with his wife Kathryn. In turn, Kathryn stated, in her evidence, that her father had called Andrew a "greedy sod", because Andrew was asking for a sum of money. In cross-examination, she said that before and at the time of her father's death, it was common knowledge that Andrew was seeking a payout from the farm. In particular, she said that her father, Christopher, her sisters and her mother were all discussing the demand made by Andrew.

178 In this connection, I need to mention, briefly, a controversy in the evidence which arose from an email, which Kathryn sent to her siblings on 8 April 2005. In that email, Kathryn described how, that morning, she woke up crying and distressed, because "I felt dad did not love me as he had left me out of the will". She described how the dream, and the fact that she woke up crying, was quite unique for her. (That email was referred to in the course of the proceedings as the "dream email"). In the course of her evidence, Kathryn produced a printout from her computer, which contained a series of emails between herself and her siblings, including Christopher. That printout became Exhibit E in the proceeding. It contained a response from Christopher at 1.36 pm on 8 April 2005, in which Christopher described that he could recall speaking to his cousin (Andrew) on the telephone on the previous evening, and having Andrew make specific financial demands on him. In her evidence, Kathryn stated that, on the previous weekend (during the trial) she had located the chain of emails contained in Exhibit E, when she searched the archive section of her computer. In cross-examination, she stated that she did not have any recollection of the chain of emails contained in the document.

179 In his evidence, Christopher tendered a different printout from his computer, which became Exhibit 31. That printout did not contain the message from him to Kathryn at 1.36 pm, but, rather, contained a later response by him to Kathryn, at 5.26 pm, which was a parody of the "I Have a Dream" speech by Dr Martin Luther King. In his evidence, Christopher denied sending the email at 1.36 pm, which is contained in Exhibit E. He stated that he would not have used the terminology, in which that email was expressed. He further stated that the email was out of sequence in terms of dates, because it was not until August 2005 that he was first approached by Andrew and his father Noel.

180 On the state of the evidence, it is not possible for me to resolve the conflict between the two different chains of emails, which are contained in the two exhibits to which I have just referred. For example, no evidence was led as to how the message, which purported to come from Christopher at 1.36 pm, could have been stored on Kathryn's computer, if it had not been sent by Christopher. On the other hand, there is substance in the response made by Christopher in his evidence, namely, that the manner in which the email, attributed to him, is expressed, does seem somewhat unusual. Furthermore, it does not seem to be in keeping with the tenor of the email which preceded it from Kathryn. As I am not able to resolve this issue, I do not accept the proposition, advanced on behalf of the plaintiffs, that Exhibit E detracts from the evidence of Christopher that, in April 2005, Andrew had not made any demand for payment on the farm, and that the first such demand made by Andrew was in August 2005.

181 The second factual issue, relating to the timing of an event, concerned the date upon which an expression of interest by VicSuper, to purchase the farm, was first brought to the attention of the plaintiffs and the defendant. Each of the plaintiffs, and Paul Somerville, gave evidence that Christopher had spoken about an offer by a superannuation company in 2005. The plaintiffs each stated that that information was pleasing to them, because it meant that Christopher would be in a position to honour the promises, which he had made to them. In her evidence, Sue stated that Christopher spoke to her about the offer, and that that information was a matter of some excitement to herself and her sisters, because "we felt that our inheritance would come to be realised". In re-examination, she said that it was when Christopher told her about the offer that they discussed trusts, and that he was just working a few things out, because they would all benefit from the sale of the property. Sue was adamant that the offer came to her attention in 2005. She said that the offer was made while Michael Skirka was still alive, and before she moved from Apollo Bay to Colac in January 2007.

182 In her evidence, Kathryn said that Christopher told her, before September 2005, that there was an offer from the superannuation company. She said that part of the offer was that her uncle John, and her uncles and aunts, would be permitted to remain on the farm, and Ian would be able to continue to manage it. She said that a purchase price of $30,000,000 was mentioned. In cross-examination, she continued to maintain that she first heard about the offer in 2005, and that, in 2006, her mother told her that the VicSuper offer had not been accepted by the family. Her husband, Paul, stated in evidence that when he and Christopher travelled to Rosebery in April 2007, they spoke about an offer which had been received, some time previously, from a superannuation fund to purchase the farm. He said that was the first occasion on which he had heard of the offer. However, he understood that the offer, which was referred to him by Christopher, had been made in the period between 2003 and 2005.

183 On the other hand, Christopher's firm evidence was that he did not receive any response from VicSuper until June 2007. His evidence to that effect is supported by Mr Tamblyn, who chaired a meeting of the family concerning the VicSuper expression of interest in late July 2007. Mr Tamblyn stated that that occasion was the first interest of a potential purchaser in the farm, which had been brought to his attention, and that Christopher had informed him about it one fortnight previously.

184 The evidence of Mr Tamblyn provides strong support to the evidence of Christopher in this regard. It is unlikely that the expression of interest, which was referred to in the document which Christopher distributed to members of the family, would have been under consideration for some time earlier, and in particular since 2005. Further, as I stated, Mr Tamblyn had an intimate familiarity with the financial affairs of the Harrison family. It is most unlikely that an offer or expression of interest, of the type which was under consideration in July 2007, would have been made a substantial time earlier, without having come to his attention. In those circumstances, I am satisfied that the VicSuper expression of interest was not made to the Harrison family until about June 2007. I do not accept the evidence of Kathryn and Sue, or of Paul Somerville, to the effect that the offer was made in 2005. It is significant that the terms of the proposal, described by both Kathryn and Susan in their evidence, is similar to the terms which are contained in the discussion paper prepared by Christopher in July 2007. It is clear that, while they have accurately recalled the substance of the proposal, they have misremembered the time period in which the proposal was made by VicSuper.

185 The third issue, relating to the timing of an event, concerns the date upon which Christopher ceased to work on the farm. Sue stated that Christopher left the farm in 2005, and that it was only subsequent to that that she learnt of the VicSuper offer. She said that, by the time of the Christmas 2005 family gathering, Christopher was not working on the farm. Kathryn, in her evidence, also maintained that Christopher left the farm in 2005. Her husband, Paul, stated that Christopher left the farm about the time of the email sent by Louise on 13 September 2005. On the other hand, Christopher, in his evidence, stated that he remained working on the farm until November 2006. He left the farm because of a number of disputes, which he had with his cousin Ian, concerning the management of the farm in 2006. Early in the next year, 2007, Christopher obtained employment with the Victorian Irrigators Council, for whom he worked until July 2007. On this aspect of the case, I am satisfied that Christopher's evidence is correct. It is supported by the letter written by his then solicitor, Mr Cahill, to Ian Harrison, dated 8 December 2006, to which I shall later refer.

186 Pausing there, the foregoing matters are relevant for two reasons. First, as I have noted, the question of when Andrew Harrison first made a financial demand on the farm, or on the members of the Harrison family, is material to the issue relating to a number of the promises which the defendant was said to have made to the plaintiffs, and which were expressed to be conditional upon the resolution of the Andrew Harrison issue. Secondly, and allied to that, it is apparent that, in respect of two significant events, the plaintiffs, and Paul Somerville, have been mistaken, by placing earlier in time particular events, with which they associate the promises which are alleged to have been made to them by the defendant.

187 A second background circumstance, which is important to the issues which I must resolve, concerns the relative financial positions, of the three plaintiffs and the defendant, at the times, which are relevant to these proceedings. It was submitted, on behalf of Christopher, that he is unlikely to have made the promises, attributed to him by the plaintiffs, because, at that time, he did not have the financial means with which to fulfil those promises. At the same time, at least until 2007, the plaintiffs were each in a relatively comfortable financial position, and they were not in need of any financial provision from the estate of their father.

188 I shall return to this aspect of the case, in greater detail, when I consider the question whether the plaintiffs would have been entitled to an order in their favour pursuant to Part IV of the Act if they had made an application for provision from their father's estate. However, at the time of Kenneth's death, the financial situation of the parties may be summarised as follows. Louise was married to Michael Skirka. They did not then have any children. Michael Skirka was employed as a geologist. Louise had been appointed as nurse unit manager of a rehabilitation unit at the Royal Hobart Hospital. The net worth of their joint assets was approximately $350,000. Susan was not married. Her daughter, Eliza, was then 11 years of age. Susan was then working as the manager of Residential Services at Kelaston Nursing Home, Vision Australia Foundation, Ballarat. Her salary package was valued at $93,500 per annum and included superannuation and a motor vehicle. She owned her own home in Buninyong, but it was heavily mortgaged, so that her net equity in the home was only $16,000. Kathryn was married to Paul Somerville. She was then at home, looking after two pre-school age daughters. Her eldest daughter was in the preparatory grade at primary school. She worked as a teacher on average one day per week, receiving $180 per day. Her husband, Paul, worked as an accountant, earning $42,000 per annum. Their net asset position was approximately $347,000.

189 At the time of Kenneth's death, Christopher was receiving $400 per week by way of drawings from the Hopefield Trust. For the financial year ended 30 June 2004, his taxable income was $22,000. He was then divorced, and living apart from his former wife, at the former matrimonial home at Boort Durham Ox Road, Durham Ox. There is no evidence as to the then value of that home, but I note that it is presently worth approximately $70,000. His mortgage debt to the bank was then approximately $26,500. He had no other assets.

190 The next background circumstance, which is relevant to the determination of the issues in this case, concerns the position of the Hopefield property, and of the farming operation, between 2003 and 2009. After Andrew Harrison left the farm in 2002, Christopher and Ian Harrison were primarily responsible for the farming operations. In his evidence, Christopher stated that Andrew's departure from the farm, and Kenneth's death, substantially altered the balance of the management of the farm. Previously, Andrew and Christopher had held common views about the management of the farm, and they were very close. Subsequently, Ian and his father Cliff tended to predominate over Christopher in terms of the management of the farm. That change in the balance of "power" in the management of the farm created tensions between Christopher and Ian, and ultimately led to the departure of Christopher from the farm at the end of 2006.

191 At the time at which he departed, Christopher instructed solicitors, Messrs Cahill, to send a letter of demand to Ian Harrison. In that letter, it was noted that the level of harmony between the directors of the trustee company had broken down to the extent that it was "non-existent". It stated that Christopher was concerned that the long family history of farming was breaking up and "appears to have no chance of salvaging the situation". The letter stated that Christopher would like to meet with Ian, in order to "implement a plan to enable the farming operation to be divided between himself, Mr Ian Harrison and Mr Andrew Harrison" so that they would each own their own farm separately and independently of each other. The letter concluded by stating that, if an agreement as to the division of the farm was not reached, Christopher would make application to the Supreme Court for the sale of the property. In cross-examination, Christopher stated that the letter was sent, on his behalf, in the heat of the moment, but that it did not represent an enduring desire by him to sell the property. However, it is significant that, at that stage, Christopher did have in mind the division or sale of the property, at least to the extent that he instructed solicitors to send the letter to Ian Harrison.

192 At the same time, the dispute with Andrew Harrison was coming to a head. In early April 2007, Andrew issued proceedings in the Supreme Court. At the same time, a mediator was engaged by the parties to those proceedings, to assist them reach a resolution of Andrew's claim. In May 2007, Andrew negotiated a settlement of his claim with his father, Noel Harrison, on the basis that Noel pay to Andrew $1,300,000. As I have already noted, that settlement was achieved despite the strong objections of John Harrison and Christopher Harrison. In order to fund the compromise, Noel was required to borrow $1,300,000 from the National Australia Bank. As the farm assets were held by Noel, Cliff, John and Christopher as tenants in common, the loan to Noel was guaranteed by each of them, and their obligations were secured by a mortgage over their interests in the Hopefield farm.

193 These matters were occurring shortly before the expression of interest was received from VicSuper, in June 2007. In that context, the discussion paper, prepared by Christopher in respect of that expression of interest, is relevant. In the section of the paper entitled "Advantages over the current path", Christopher noted (inter alia) that: first, the expression of interest maximised the value of the Hopefield assets, whereas a "fragmentation or division of Hopefield land" would decrease the capital value of both the land and water substantially; secondly, the VicSuper proposal reduced "the complexity and difficulty of separating Hopefield into quarter shares"; and, thirdly, the proposal would provide an independent income for those continuing off and on the farm, which Christopher calculated at a bank interest rate of 7 per cent per annum on each family share of $6,000,000, yielding a "standing income" of $420,000 per annum.

194 The concatenation of those three circumstances, between late 2006 and mid 2007, are relevant. Clearly, the position at the farm was changing. Hitherto, Christopher had dedicated his working life to maintaining the viability of the farm, and working on it. By late 2006, he was working on the farm, and he was in dispute with Ian. The resolution of the issues relating to Andrew had created financial pressures on the farm. In those circumstances, it is evident from the foregoing that Christopher was, at least, entertaining some interest in either the division or sale of the Hopefield property.

195 The fourth background circumstance, which is relevant to this case, concerns the nature of the relationship between the plaintiffs on the one hand, and the defendant on the other hand, between 2003 and 2009. From the summary of evidence, which I have set out above, it is evident that the plaintiffs and the defendant enjoyed a close and harmonious relationship at least until some time in 2005. In that year, both Kathryn and Louise began to express some disenchantment with the fact that they had been left out of their father's will. The first objective evidence to that effect is contained in the "dream" email of Kathryn dated 8 April 2005, to which I have already referred. Five months later, Louise sent the email dated 13 September 2005, which assumed some significance in the case. Before she sent that email to Christopher, Louise sent a draft of it to Kathryn for her advice. Kathryn responded by sending to Louise an email, encouraging her to forward her email to Christopher, and expressing the view that such an email would "broaden" their brother's mind.

196 In the email dated 13 September 2005, Louise commenced by stating that it was very hard "for us" at the moment, as "the Andrew thing has just raised our emotions of feeling valueless as being born female into our family". She then set out a number of incidents, dating back to their childhood, in which she considered that Christopher had received favoured treatment from their parents. Louise then stated:

"Most of these issues you have no control over but it is really hard to grow up feeling loved but never equal. We do not want the farm or anything from it and know you would always look after us should it be sold or whatever, but it seems so unfair to have Andrew demand $ when really he has the same rights to it now as us all. We too have mortgages which we will be paying off for the next 15-20 years. What the farm does with Andrew is your business but all we are looking for is acknowledgment that the system is not fair. I am so aware of how hard you have to work and all the extra responsibilities that you have inherited so much that we are extremely worried about your health."

197 Louise in the email then stated that it was embarrassing to have to tell her friends that she was not mentioned in the will. She said that she knew that this was the case, but she thought that their father might have told their mother to make sure that their daughter get something. Louise then, in the email, proceeded to criticise their mother, for a lack of concern about Louise and her children. She concluded by stating: "I do not mean any of this personally and hope you can understand why I feel so sad".

198 In her evidence, Louise stated that she sent the email to her brother, because Christopher had been saying how hard things were in his life, and Louise wanted to tell him how hard her life had been. She stated that Christopher did not respond to that email, and that she regarded that email as the end of her relationship with him for quite some time. Similarly, in her evidence, Kathryn stated that, following that email, Christopher rejected any further contact with her also. She sent him a number of emails begging him to resume communication, but he refused to do so.

199 On the other hand, Christopher stated that he was not upset by the email sent to him by Louise. Indeed, he regarded it as an honest expression of her views. However, shortly after he received the email, Sue told him that, as a result of Andrew making a claim on the farm, Kathryn was encouraging her sisters to seek legal advice and consider suing their father's estate. Christopher stated that, on receipt of that information, he was very upset, and felt betrayed by his sisters. At that time, he was under some pressure, trying to resolve the issues relating to Andrew and the extended family. Instead of receiving support from his sisters, one of them was encouraging the others to institute legal proceedings against him. Sue's evidence concerning that conversation with Christopher is different. However, relevantly, she confirmed that, in about 2006, Kathryn and Louise were discussing the possibility of bringing legal proceedings, and that, when she told Christopher he became angry in response.

200 Notwithstanding the differences in the evidence of the parties on that point, four relevant factors emerge from it. First, there was burgeoning dissatisfaction by Kathryn and Louise with the fact that they had been left out of their father's will. Secondly, that dissatisfaction seems to have stemmed from personal feelings of hurt that their father did not care for them as much as he did for Christopher. Thirdly, later in 2005, Kathryn and Louise were considering legal action relating to the estate of their father. Fourthly, Christopher knew about it. As a result, he became estranged from Kathryn and Louise, and ceased to have any significant contact with them, until the death of Michael Skirka in April 2007.

201 In determining the issues between the parties, one question which arises concerns the state of knowledge of the plaintiffs, of the contents of Kenneth's will, before May 2004. That question involves two issues. The first is whether I am satisfied that Christopher Harrison did, in late 1998 or early 1999, inform the plaintiffs of the nature of Kenneth's will, and gain an assurance from them that they were satisfied with the dispositions made by Kenneth in that will.

202 The resolution of that matter is not critical to the issues in this case, but it is of some importance. If, in fact, Christopher had gained the assurance of each of his sisters, before their father's death, that they were content with the dispositions contained in their father's will, it is unlikely that Christopher would have made the promises and representations attributed to him by the plaintiffs. In addition, in his evidence, Christopher stated that, one reason why he was upset when he learnt that Kathryn and Louise, in late 2005, were contemplating legal action against their father's estate, was because he regarded that conduct by his sisters as a betrayal by them of their earlier assurance to him that they were content with the dispositions in their father's will.

203 Counsel did not address me as to which party bears the legal onus of satisfying me that the conversations, referred to by Christopher in his evidence, either did, or did not, take place. That evidence would not, strictly, negate an element of the plaintiffs' cause of action, but, rather, would tend to provide the defendant with a defence to it. If that characterisation of the evidence is correct, then the legal onus, in relation to it, is on the defendant.[4]

204 The issue of fact is not simple to determine. In his evidence, Christopher had a good memory of the conversations which he described. It is not suggested that any inconsistency in his evidence was revealed by cross-examination of him by Mr Waddell on that aspect of his testimony. Furthermore, the evidence by Christopher, that he wished to gain the assurance of his sisters that they would not contest their father's will, is quite plausible. In 1998, Christopher, Ian and Andrew had consulted solicitors, in order to gain some understanding as to the circumstances in which their fathers' wills might be contested. At that time, and for some years previously, some discussion had taken place, in the family, as to the issue of the succession of title from the older generation, the remaining members of which were Noel, Clifford and John. Christopher had, by 1998, devoted his working life to salvaging and improving the farm. It is understandable that he might, in that context, have wished to be reassured that, if he continued to work on the farm, his sisters would not challenge the disposition to him of his father's interest in the Hopefield property.

205 On the other hand, each of the plaintiffs were equally firm in denying that the conversation, attested by Christopher, took place. There is some force in the evidence given by Kathryn that, if Christopher had raised the matter with her, she would have regarded it as an intrusion on her father's privacy. Similarly, Paul Somerville was quite convincing in his response that, if Christopher had explained the will to him, and asked him if it was alright, he would have responded that that was a matter between Kenneth and Kathryn to discuss.

206 In the end, the issue of fact is not simple to resolve. However, having considered the matters to which I have just referred, and the manner in which the witnesses gave their evidence, I am not satisfied, on the balance of probabilities, that the conversations, attested to by Christopher, did occur. That conclusion does not, of course, mean that Christopher has either consciously or unconsciously fabricated the conversations about which he gave evidence.

207 That conclusion, however, raises the question of when the plaintiffs became aware of the contents of Kenneth's will. Each of the plaintiffs stated that, in May 2004, they learnt from their mother that there was no provision for them in their father's will. However, each of them stated that they had always understood that Christopher would be bequeathed their father's interest in the Hopefield property. Susan stated that her father had told her that Christopher would be responsible for the farm, but that, if it were sold, she would receive a share of it. In the course of her cross-examination, she stated that she recalled that her father had said that she would receive 10 percent of her father's interest in the farm. However, that evidence only emerged in the course of cross-examination of Susan. I do not have sufficient confidence in that aspect of her evidence to accept it. I do, however, accept that she had had previous conversations with her father, in which her father had expressed the expectation that, while Christopher would be bequeathed his interest in the farm, Christopher would look after his sisters. Kathryn stated that, although she had never discussed the matter with her father, she always understood that her father's interest in the farm would pass to Christopher. She had assumed that Christopher had undertaken to her father that he would make provision for his sisters out of his inheritance.

208 The first, and indeed principal, question is whether I am satisfied that the defendant made the various promises, alleged to have been made by him, between the date of their father's death, in April 2003, and 2009.

209 It is convenient to divide that period into three parts, namely: first, the period from the date of Kenneth's death in April 2003 until September 2005, when Louise sent the email to Christopher dated 13 September 2005; second, the period from September 2005 until the death of Michael Skirka in April 2007; and, third, the period from April 2007 until October 2009. The conclusions, which I have reached in relation to each of those three periods, can be shortly stated. I am not satisfied on the balance of probabilities that Christopher made any of the promises alleged by the plaintiffs in the first period to September 2005, or in the second period to April 2007. On the other hand, I am satisfied, on the balance of probabilities, that during the third period (from April 2007 until October 2009) Christopher did make representations and promises to the plaintiffs to the effect alleged by them. It is necessary for me to deal, in some detail, with each of those periods.

Alleged promises: first period: April 2003 to September 2005

210 The first promises were alleged to have been made by Christopher in the kitchen of his mother's house shortly after their father's death, and before his funeral. I am not satisfied, on the balance of probabilities, that, in that conversation, Christopher made to his sisters any of the promises alleged in their evidence, to the effect that he would financially look after them, or make provision for them, out of their father's estate. I have reached that conclusion for a number of reasons, some of which are common to my conclusions concerning other promises alleged to have been made by Christopher during the period to September 2005.

211 Each of the plaintiffs stated that the conversation in the kitchen, in which Christopher made the promises, was instigated by their mother expressing concern as to her own financial situation. However, the uncontradicted evidence is that, after Kenneth's death, Jillian continued to receive the same amount of drawings, which were paid to Kenneth and Jillian before his death. There was no suggestion that Jillian would not be permitted to remain in her home in Freedom Fields. Nor was there any suggestion that Jillian otherwise faced any financial difficulties or uncertainties at that time arising out of, or subsequent to, the death of her husband. On the other hand, there is some plausibility about the account given by Christopher, namely, that at that time, his mother was very upset about the loss of her husband, and Christopher was offering her emotional support. Kenneth and Jillian had been married for a long time, and they had enjoyed a very close relationship. They had both suffered significant ill health, and had been mutually supportive of each other. In cross-examination, Susan stated that the period after her father's death was understandably quite emotional, and it was a period in which the siblings spent a significant amount of time together with their mother.

212 Both Louise and Kathryn, in their evidence, sought to counter the suggestion that Christopher, at that time, was doing no more than offering his mother emotional support. However, their evidence, in doing so, was, to my perception, somewhat contrived. In re-examination, Kathryn stated that their father had died after a long illness, that his death was a relief, and that the atmosphere at the time of the "kitchen meeting" was calm. That evidence was contradicted by both Susan and Christopher, namely, that the family was then in grief of the loss of Kenneth, and that it was an emotional time for each of them. The evidence was that, although Kenneth Harrison had suffered a number of bouts of ill health over the years, on each occasion he had managed to recover. Christopher's evidence, which was uncontradicted, was that, shortly before the last bout of ill health, his father had been driving around the farm. His parents were living together, without any other support. His father only entered hospital three weeks before his death, and there was some expectation that, as with previous occasions, he would survive his latest bout of illness. In those circumstances, it seemed to me that the evidence of Kathryn, namely that the atmosphere at the time was calm, was somewhat contrived, and I do not accept it.

213 In a similar vein, in cross-examination, Louise accepted that at that stage Christopher was grieving substantially for the loss of his father. However, she nonetheless, maintained that, at the "kitchen meeting", she expected her brother to consider a claim which she wanted to make against her father's estate. That evidence, while sincerely given, was, in my view, the product of a significant degree of retrospective rationalisation.

214 In addition, both Louise and Kathryn in their evidence stated that, in the kitchen meeting, Christopher had stated that, before making provision for his sisters, he would have to "sort out" the issue relating to Andrew. I interpolate that, in cross-examination, Susan, by contrast, said that there had been no mention of Andrew at that meeting. However, the recollections of Louise and Kathryn was that there was an issue relating to Andrew making financial demands on the farm, and that Christopher had stated that he would first need to deal with those demands, before he made provision for his sisters out of their father's estate. As I have already indicated, I am satisfied that Andrew did not make a financial demand on the farm until August 2005. That finding is an important consideration affecting the accuracy of the evidence of Louise and Kathryn.

215 Further, at the time of the kitchen meeting, and indeed at least until August 2005, Christopher did not have available to him any assets, from which he could make provision for his sisters, even if he had wished to do so. As I have already indicated, he had little by way of personal assets or means. His inheritance from Kenneth was to consist of a one quarter share in a number of parcels of land, owned by his father as tenant in common with his three brothers. That property was being used for a viable farming operation. Christopher was working on the farm, and, was, to all intents and purposes, a "partner" in the farming operation. At the time of the kitchen meeting, and indeed until at least August 2005, no circumstance which had arisen which would have given Christopher any reason to consider that the farm property might be divided, or otherwise dealt with, in such a way that he would be able to make some type of provision for his sisters out of it.

216 At the same time, there was no reason why Christopher would, at the time of the kitchen meeting, have been moved to gratuitously offer to make provision for his sisters. It was not suggested that, at that time, any of the plaintiffs had stated to him their expectation that he would do so. At that time, each of them were financially independent, and, at least as compared to Christopher, were in relatively comfortable financial situations.

217 In cross-examination, Susan Harrison admitted that, in the witness statement which she had prepared for this case, she had stated the following relating to the kitchen meeting: "I remember a conversation between the time dad died and the funeral. Louise had been upset about a dog which had been thrown into the channel and it died and so everyone was tense. We all sat around the kitchen table - my sisters, mum, Chris and I - and we spoke about the estate. This conversation was brushed aside by Chris. Later, the girls and I questioned mum and she said 'Chris is taking care of all that'".

218 The account given by Susan, in her witness statement, of the kitchen meeting, is in substantial contradiction of the accounts given by her, in her evidence. In cross-examination, she sought to reconcile the discrepancy, by stating that, when she said in the statement that Christopher "brushed it aside", he did so by saying that he would look after the plaintiffs. However, that explanation does not reconcile the significant difference between the statement and Sue's evidence. In particular, the gravamen of the witness statement is that Christopher did not make any promise at the meeting, but, rather, subsequently, Jillian told the plaintiffs that Christopher would look after them.

219 In view of each of the above matters, to which I have referred, I am not satisfied, on the balance of probabilities, that, at the "kitchen meeting" in April 2003, Christopher made any of the promises alleged to have been made by him by the plaintiffs.

220 In her evidence, Louise stated that, subsequent to April 2003, Jillian would contact her, expressing her distress because she wanted some money and that she did not have any money. Louise, in her evidence, stated that she would then ring Christopher, who would reassure her, by stating that it would all get sorted out, and that her mother, and her sisters and she would all be provided for by him. She said that Christopher stated to her that "I'll be looking at doing trusts".

221 I am not satisfied, on the evidence of Louise, that Christopher made any such promises to her, that he would make provision for her or her sisters. I do accept that between May 2003 and May 2004, Jillian was expressing some concern, as to when she would receive her legacy under the will. The evidence of Sue, in that respect, is to like effect. Further, there are, in evidence, emails between Christopher and Kathryn, in May 2004, in which they discussed the fact that their mother was rather excited that she would be shortly receiving her entitlements under Kenneth's will. However, I am not satisfied that, in response to questions as to when Jillian's legacy would be paid to her, Christopher made any promises to look after Louise or his sisters. Indeed, in her evidence, Susan stated that, when her mother raised the issue with her in that period, Christopher would state to her that Jillian need not worry, because she was being looked after from the farm, which she was living on. Louise's evidence, that Christopher was referring to "trusts" at that stage, seems to be, in terms of timing, somewhat out of context. The evidence suggests that Christopher first started to talk in terms of trusts after the death of Michael Skirka in April 2007. In addition, again, there was no reason why Christopher would have then been moved to have offered to make provision for his sisters, out of the estate of their father at that time.

222 Louise further stated that she first knew about her father's will in June 2004, when her mother telephoned her to say that the estate had been settled, that she (Jillian) had received some money, but that there would not be anything more for Louise and her sisters. Louise stated that as a result she spoke to Christopher, who responded by saying "It doesn't matter because I will look after her". Christopher also stated that the estate was complicated but there would be provision for her later. I am not satisfied on the balance of probabilities that Christopher made that statement to Louise. It is unlikely that, at that time, Christopher would have gratuitously offered to look after Louise. Christopher did not have the financial means to make any provision for Louise. By contrast, at that stage, Louise and her husband, Michael, were in comfortable financial circumstances, earning good incomes.

223 In her evidence, Kathryn stated that, at the family gathering for Christmas 2003 at Susan's house at Buninyong, Christopher and she had a conversation about their father's estate. Kathryn stated that Christopher and she were talking about how long it would take to sort out the estate and "the business with Andrew", and that, in that context, Christopher said that he would look after Kathryn.

224 As I have already indicated, I am satisfied that Andrew did not make any demand, or raise any other problem relating to the farm, until August 2005. Further, there was no reason why Christopher would have made to Kathryn, at Christmas 2003, the gratuitous promise attributed to him. There was no reference to that conversation in the particulars of representations contained in the statement of claim, or in the further particulars of those representations provided by the plaintiffs on 20 August 2010. I am not satisfied that Christopher made the promise attributed to him by Kathryn at Christmas 2003.

225 It is convenient to examine the evidence of the plaintiffs, as to other promises said to have been made to them by the defendant, individually, for the remainder of the first period to August 2005.

226 Louise stated that after Christmas 2003 she continued to have telephone contact with Christopher. In particular, she would telephone him in response to calls from their mother about what was happening with the estate. Christopher would respond that it was all getting sorted out, but that the issue relating to Andrew Harrison could potentially bring the farm down. Again, as I am satisfied that the issue relating to Andrew Harrison did not emerge until August 2005, it is clear that Louise's evidence, in that respect is misplaced.

227 Louise stated, next, that in September 2004 she visited Victoria, when Sue got married. Louise then had a young baby (Angus). Christopher was affectionate to her, and said "You know, Louise, I will look after you". It is quite possible that, on that occasion, Christopher did make such a statement to his sister. However, I am not satisfied that, by doing so, he was intending to, or was reasonably understood to be, promising to care for his sister in a financial sense. At that stage, Christopher was still working on the farm, and living on meagre earnings. By contrast, Louise was enjoying quite comfortable financial circumstances in Hobart. There was no evidence that, at that stage, there was any prospect that the farm would be divided, or otherwise dealt with, which would have enabled Christopher to make appropriate provision for Louise.

228 Louise stated, further, that during 2005 she had a few conversations with Christopher, but that he was becoming annoyed with her for doing so. Christopher continued to say that matters were complicated, but that they would be eventually sorted, and that she and her sisters would be provided for. Louise stated that Christopher was saying that the matter was complicated because of the Andrew issue. However, once again, that issue had not yet emerged. Again, there was no reason why, at that stage, Christopher would have been promising to provide for his sisters. I do not accept that Christopher made such promises, to Louise, at that time.

229 Louise stated that at one stage Christopher had told her how difficult life had been for him. It was that remark which prompted her to send to Christopher the email dated 13 September 2005, to which I have referred. I shall return to this aspect shortly. However, as I will note, it is significant that, in that email, Louise did not make any reference, at all, to the fact that Christopher had promised to make financial provision for herself and her sisters out of their father's estate. As I shall indicate, if such representations had been made by Christopher, it is difficult to understand why they were not referred to in the email. The fact, that the email makes no reference to those representations, is a further factor undermining Louise's evidence on this point.

230 Sue stated that, in May 2004, her mother told her that she (Sue) would not get anything from her father's estate. Sue then spoke to Christopher, and asked him why the will was left in that form. Christopher responded by stating that, because the farm was complicated, the will was a "business transaction", to make sure that Christopher would be able to look after the farm. Christopher also stated to her that their father trusted him to look after everyone, including his sisters and his mother.

231 I am satisfied that Christopher may well have referred to the dispositions made in their father's will as a "business transaction", since that would reflect the rationale for the dispositions made in Kenneth's will. If the farm property had been left to more than one of his children, it would have been more difficult to maintain the integrity of the farm and its ongoing viability. It is difficult to understand how Kenneth Harrison could have expected Christopher to look after his mother and sisters financially, in light of the poor financial return he received from the farm, and also in light of the relative financial circumstances of his three daughters. On balance, I am not satisfied that Christopher made any such representation to Sue on that occasion.

232 Based on the foregoing analysis, I am not satisfied, on the balance of probabilities, that, between April 2003 and August 2005, Christopher did make any of the promises alleged in the evidence of the plaintiffs that he would make provision for the plaintiffs from their father's estate. That conclusion is reinforced by two other considerations. First, as I have already noted, the three plaintiffs have each, in their memories, transposed the chronology of events which they have recalled, and in particular they have remembered important events, namely, the financial demand by Andrew Harrison and the VicSuper offer, as occurring significantly earlier than was the fact. As I have already indicated, and for the reasons which I have set out in the following passages of this judgment, I am satisfied that, subsequently, Christopher did make some promises to his sisters relating to financial provision to them or their families. It is, in my view, quite feasible that the plaintiffs have each, recalled such representations, made by Christopher, as occurring some years earlier than was actually the fact.

233 Secondly, and as I have already indicated, the email sent by Louise to Christopher on 13 September 2005 is quite significant. During 2005, it is clear that there was a growing dissatisfaction, particularly by Kathryn and Louise, that they had been left out of their father's will. In emails sent by Kathryn and Louise to Christopher, that dissatisfaction was expressed to be directed at their parents. It was expressed in terms of feeling hurt at having been left out, by their father, from his estate. If at that stage, and, in particular, by September 2005, Christopher had made promises to his sisters, that he would repair the omission of their father to remember them in his will, the email, which Louise sent to Christopher on 13 September 2005, was the perfect opportunity for her to mention that fact. Much of the email was a lament by Louise to Christopher that, to her perception, Christopher had received preferential treatment from their parents. She stated that that fact hurt and embarrassed her, when she spoke to her friends about her father's will. In that context, if Christopher had already made promises to Louise, and to his sisters, to repair that omission, it would be expected that she would, in the email, have at least acknowledged that he had undertaken to do that which her father had neglected to do. The absence of any such reference, in the email of 13 September 2005, tends to undermine the evidence of Louise that, before that date, Christopher had made the promises alleged by her.

234 Before the email was sent by Louise to Christopher, Louise had already sent it, in draft form, to Kathryn for her comments. Kathryn, in response, encouraged Louise to send the email to Christopher. She did not make any suggestion that Louise should, in that email, acknowledge or refer to the promises which Christopher made to them. That factor also undermines the evidence of Kathryn as to the promises which she claims were made by Christopher in the period to September 2005.

Promises alleged between September 2005 and April 2007

235 It is common ground that, from late 2005, there began a period of estrangement between Christopher, on the one hand, and Kathryn and Louise, on the other hand. Kathryn and Louise attributed Christopher's refusal to have further contact with them to the email sent by Louise dated 13 September 2005. On the other hand, Christopher stated that he withdrew from significant contact with Kathryn and Louise, when, in late 2005, Susan told him that they were contemplating bringing legal proceedings against their father's estate. It is not necessary for me to resolve that difference. The relevant fact is that, from late 2005, Christopher had little direct contact with Louise and Kathryn, until the death of Michael Skirka in April 2007.

236 In her evidence, Louise did not allege that, during the period from September 2005 to April 2007, Christopher made any direct promise to her, that he would make provision for her, or her sisters, from their father's estate. Kathryn gave evidence as to one such promise, namely, the occasion upon which, in December 2005, Christopher attended at their mother's house to kill a snake. I am not satisfied that, on that occasion, Christopher did make any statement to Kathryn to the effect alleged. According to Kathryn, other members of the family were present on that occasion. However, neither Sue nor Louise gave evidence supporting Kathryn's evidence in that respect. Nor did Paul Somerville. The evidence of Kathryn on this aspect of the case was somewhat confused, and her account appeared to become more detailed in cross-examination and, again, in re-examination. I am not satisfied, on the balance of probabilities, that Christopher made the statement which she alleges in her evidence.

237 The evidence, which was more significant relating to this period, was the evidence of Sue Harrison as to conversations which she had with Christopher, in 2006, when she informed him that Kathryn and Louise were contemplating bringing legal proceedings. In his evidence, Christopher denied stating to Sue that he had made promises to her sisters and her, and he denied saying that their father had trusted him to look after their mother and his sisters.

238 On either account, the discussion between Sue and Christopher, on that occasion, was attended with some strong emotion, at least on behalf of Christopher, which may account for some differences in their recollections of the conversation. However, there are aspects of Sue's evidence, which do not fit the facts, as I have found them. First, she stated that, when she told Christopher that their sisters were contemplating bringing legal action, Christopher responded that it was terrible, because his cousin was also taking him to court. Although, by the time of that conversation, Andrew Harrison had made a demand for payment, he did not issue legal proceedings until April 2007. There is no evidence that, before that date, and in particular at the time of the conversation between Christopher and Sue, Andrew had threatened legal proceedings, or that he was on the verge of instituting proceedings. Secondly, in her version of the conversation with Christopher, Sue stated that Christopher, in substance, confirmed the promises which, she said, he had already given, to make provision for his sisters out of their father's estate. However, as I have already indicated, I am not satisfied, on the balance of probabilities, that Christopher, by that stage, had made any such promise or representation to his sisters. Thirdly, at the stage at which the conversation took place, there was no suggestion then that Christopher was in a financial position to support his sisters or his mother. Fourthly, although, by that time, relationships between Ian and Christopher were becoming strained, it was not until late 2006 that Christopher ceased to work on the farm. There is no evidence that, before that stage, Christopher had given contemplation to selling, or dividing, the farm in such a way that he would be able to make provision, from it, in favour of his mother and sisters. For those reasons, I am not satisfied, on the balance of probabilities, that Christopher made any statement to Sue that he would provide for her sisters and her, or that his father had trusted him to look after his mother and his sisters.

239 On the other hand, I am satisfied that there may well have been some reference by Christopher, in his conversations with Sue in 2006, to the disposition which he had made in his will relating to his interest in the farm. In May 2003, Christopher and Jillian had each made fresh wills. Those wills were made in response to the death of Kenneth. By his will, Christopher left his interest in the farm (including real estate) to his mother, Jillian. By her will, Jillian left any interest which she had in the farm to Christopher, and the residue of her estate on trust for the three plaintiffs. It is clear that the scheme of the wills was that, if Christopher predeceased his mother, she would inherit his interest in the farm, and, in due course, the three plaintiffs would inherit that interest from her. Although Christopher's will does not make any disposition of the farm, in the event that Jillian should predecease him, it is significant that, pursuant to that scheme, it was in his contemplation that, ultimately, the three plaintiffs (and not Christopher's children) would inherit his share in the farm.

240 In those circumstances, it is quite feasible that, when Sue told Christopher that Kathryn and Louise were contemplating legal proceedings, that Christopher and Sue did discuss the disposition, which Christopher had made in his will in respect of his interest in the farm. It is also feasible that, in that light, Sue would have raised the question as to what would occur to the farm, if Jillian were to predecease Christopher. I therefore accept Sue's evidence that such a conversation occurred. I also accept that Christopher, at that stage, did indicate that he would be prepared for his will to be amended, to ensure that the plaintiffs inherit his interest in the farm from him. While that statement by Christopher does not amount to a promise, and certainly not a promise of the type relied on by the plaintiffs in this case, it does, in my view, have some relevance, in the context of statements subsequently said to have been made by Christopher after the death of Michael Skirka in April 2007.

241 I turn to consider the evidence relating to promises said to have been made by Christopher after the death of Michael Skirka in April 2007.

242 The context, in which those promises were alleged to have been made, had changed quite significantly from the background circumstances to the two earlier periods which I have discussed. First, Christopher had ceased to work on the Hopefield property in November 2006, and, in early 2007, he had obtained alternative employment. By then, it would seem that he had become fixed in his decision not to return to working on the farm. That decision was sufficiently final to prompt him to instruct a solicitor to send a letter, in December 2006, to Ian Harrison, and to his uncles, seeking a division or sale of the land. I accept that that letter may have been sent in anger. Nevertheless, it does demonstrate that, at that stage, Christopher was prepared to contemplate the division of the Hopefield property. Further, he would, by then, have foreseen that the unity of the Harrison family was so fractured, that it was unlikely that the farming operation, which had previously endured for some six generations, would continue in the future.

243 Secondly, in June 2007, the expression of interest was received from VicSuper. I accept that that expression of interest did not come to the attention of Christopher, at the time at which Michael Skirka died. However, as I have already observed, the significant feature, relating to that expression of interest, is to be found in the discussion paper, distributed by Christopher to members of the family. In that discussion paper Christopher identified the advantages of a sale of the Hopefield property as a whole. Further, it is implicit, in his discussion of those advantages, that he was contemplating that the alternative solution for Hopefield would be the division of the property into quarter shares.

244 The third relevant change in circumstances was that, by April 2007, the dispute with Andrew Harrison was coming to a head. A writ was filed in the Supreme Court on 4 April. Christopher had received notice, that the writ had been issued, shortly before the death of his brother-in-law. The solicitor's letter, which had accompanied the writ, confirmed that Mr Philip O'Callaghan had been engaged by all parties named in the writ to act as mediator to assist the parties to resolve the matters raised in the proceeding. It would seem thus that at the time that Christopher attended in Hobart, he was aware, and indeed had agreed, that a mediation process was to be instituted in order to resolve Andrew's claim. In fact, the dispute with Andrew was resolved one month later in May 2007. Although Christopher was opposed to his uncle Noel paying a large sum of money to Andrew, nevertheless it is not suggested that Noel's action, in doing so, came as a complete surprise to Christopher. It is clear that any significant financial settlement with Andrew would impose financial pressure on the viability of the farming enterprise. Indeed, in his discussion paper, Christopher noted that one advantage of the VicSuper proposal was that it would enable Noel Harrison to pay out Andrew's claim, without CBH being placed at risk.

245 The fourth relevant change, in the background circumstances was the death of Michael Skirka. At the time of her husband's death, Louise had two small children. Michael Skirka had been a successful geologist, earning a healthy income. His sudden death rendered Louise financially vulnerable, particularly as Michael Skirka did not have any life insurance. His death was also relevant, because it acted as an emotional circuit breaker, bringing the family together at a time of crisis. Notwithstanding that Christopher was, at that time, substantially estranged from Louise and Kathryn, he immediately hastened to Hobart, on hearing of his brother in law's death, in order to be at his younger sister's side.

246 Those changed circumstances are relevant to an analysis of the evidence, relating to promises alleged to have been given by Christopher, in the period from April 2007. The first, and perhaps most significant, promises were alleged to have been made immediately after the death of Michael Skirka, when Christopher and other members of the Harrison family attended in Hobart to support Louise and to be present at Michael Skirka's funeral. Each of the plaintiffs' witnesses stated that, in conversations which they had with Christopher, he undertook to provide assistance for Louise and her children. Susan, Kathryn and Paul Somerville gave evidence that, in the course of those conversations, Christopher stated that he would also make provision for either his sisters or their children, when issues relating to the farm were settled.

247 In summary, Louise stated that Christopher said to her that he would help to provide for her sons and her, and that he would set things up for the whole family. Sue stated that Christopher spoke about setting up trusts for Louise to support her children, and to support all of his siblings' children (including his own). Kathryn's evidence was that, in a conversation which she had with Christopher at the front of Louise's house, Christopher stated that he would set up a trust for Louise's children, and that he would also set up trusts for all of their children. Paul Somerville stated that, in the trip to Rosebery, Christopher stated that he would look after Louise financially, and that, when the issues relating to the farm were sorted, he would look after his sisters and his mother. Kathryn stated that Paul reported to her, after the trip to Rosebery, that Christopher had told Paul that he (Christopher) would look after Louise. Eliza Harrison gave evidence as to a conversation she heard take place in Louise's house, in which Christopher said that Louise should not worry about money matters, and that he would always help her out.

248 Christopher, in his evidence, denied making any such promises to Louise, or to any other member of his family, at that time. He said, in his evidence, that he did not have the financial means to fulfil any such promises. However, as I have already observed, at that stage, the position of Christopher in respect of the farm was changing quite substantially. There was a basis for him to be discussing, at that time, the possibility of making provision for other members of the family, if and when the issues relating to the co-ownership of the Hopefield property became resolved. While Louise and her late husband lived in a comfortable circumstances, it would have been apparent to Christopher that that was due, in no small measure, to the financial contribution which Michael Skirka had made from his income. It was clear that, as a result of Michael Skirka's sudden and unexpected death, Louise's financial position was liable to be significantly affected. At that time, Christopher had set aside his differences with Kathryn and Louise, to support Louise, and the family, at a time of great tragedy. Christopher had, at that time, ceased working on the farm, due to irreconcilable differences with Ian Harrison. He had, by then, at least countenanced a sale, or division, of the Hopefield property. In those circumstances I am satisfied on the balance of probabilities, that Christopher did give assurances to the plaintiffs that he would establish trusts to support his sisters and their children.

249 Christopher denied, in his evidence, making representations to Paul Somerville, in the car trip to Rosebery, which were the subject of Paul Somerville's evidence. He said that he was wary of speaking to Paul about family financial matters, because, in the previous year, Sue had told him that Kathryn was contemplating legal proceedings against the estate. On the other hand, it does seem that Christopher and Paul did enjoy a good relationship. Later emails, sent by Paul to Christopher, evidence a sincere desire by Paul to preserve family harmony between Christopher and his sisters. That endeavour on his part is indicative of the nature of the relationship, which he had with Christopher. Furthermore, although Christopher's relationship with Kathryn and Louise had been strained during the previous year, it is evident that the tragedy which had befallen the family in April 2007 very much altered, at least temporarily, the way in which they related to each other. The improved relationship between Christopher and his two younger sisters, at that time, is reflected by the fact that, later in the year, in September, Christopher and Kirsty visited Louise in Hobart, in order to give her some moral support.

250 Paul Somerville's evidence, as to the conversation which he had with Christopher during the road trip to Rosebery, was given in a clear and coherent manner. His recounting of that conversation had, about it, the ring of authenticity. While I do not accept that his recollection was entirely accurate as to the contents of that conversation, nevertheless I do accept his evidence that, in that conversation, Christopher stated that he would provide financial assistance for Louise, and that, when the issues relating to the Hopefield farm were properly sorted, he would also make financial provision for his sisters and mother.

251 Accordingly, I am satisfied on the balance of probabilities that when Christopher attended in Hobart in April 2007, he stated to his sisters, and to Paul, that he would make financial provision for Louise and her sons, and that he would also make such provision for his sisters and their children, when the issues in relation to the Hopefield property were properly resolved.

252 Louise Harrison gave further evidence that, when Christopher and Kirsty visited her in Hobart in September 2007, Christopher stated to her that he would consider setting up trusts for her sons and herself and her family. In his evidence, Christopher denied making any such promise or representation to Louise. Louise stated that Christopher made that promise to her, when he walked into her kitchen and was giving her a cuddle. At another stage in her evidence in chief, she said that Christopher made that promise to her, at the base of her steps, as he was giving her a cuddle. In cross-examination, she stated that the promise was made in the presence of Kirsty Orr.

253 In her evidence, Kirsty Orr had a good recollection of the circumstances in which she and Christopher arrived at Louise's house. She stated that Louise had picked Christopher and her up at the airport, and that they had stopped at a supermarket on the way to Louise's house. They did not enter the house via any steps, but, rather, they entered from the carport through a side door. She was with Christopher when they entered the house. She specifically denied hearing any promise by Christopher to Louise that he would set up trusts for her sons and herself or any other member of the family.

254 I have difficulty resolving the differences in evidence between the witnesses. On the one hand, there is a certain logic to Christopher making further promises to Louise at that stage, which would have been a reflection of the type of representation which, I am satisfied, he made earlier in April 2007. Kirsty and he attended in Hobart in September 2007 to provide moral support to Louise, and it would be natural, at that time, for him to reiterate his offer of financial support to her. On the other hand, I was impressed with Kirsty Orr as a witness. She did not endeavour to embroider or embellish her evidence. She had a clear recollection of the events, which she described. The status of the evidence is such that I am unable to be satisfied, on the balance of probabilities, that Christopher did make to Louise in September 2007 the promise which she alleges in her evidence.

255 In her evidence, Louise also stated that, in the following months, Christopher telephoned her, and told her that he was going to move over to Tasmania with Kirsty, and that Kirsty would be going to university in Tasmania. He said that he would still provide for Louise and her sons.

256 Christopher denied those conversations. In her evidence, Kirsty stated that she and Christopher gave some brief consideration to moving to Tasmania, after they had returned in September 2007, because they realised that Louise was in a difficult position raising two young boys on her own. However, she said that she and Christopher did not give serious consideration to making such a move. That evidence is in conflict with the evidence of Louise that Christopher rang her to say that he and Kirsty were "going to move over" to Tasmania and that Kirsty "would go to university there".

257 Again, in light of that evidence, I am not satisfied, on the balance of probabilities, that Christopher made to Louise the promises, which are alleged in her evidence in that respect. That conclusion gains some, albeit limited, support from the evidence of Sue. She stated that, although the relationship between her two sisters and Christopher improved in the aftermath of the tragic death of Michael Skirka, nevertheless, by 2008, it was strained again. According to Sue's evidence, by early 2008, Kathryn was, again, discussing taking legal action. In that respect, Sue's evidence is different to that of Louise, who maintains that, during the last months of 2007, she was still communicating with Christopher, in the manner which I have described above.

258 The next conversation of note is that which took place in the rumpus room of the Sullivan Road premises, to which Sue had moved in early 2008. Sue's evidence is that, on that occasion, Christopher made further promises of setting up trusts, and of providing financial support for her and Eliza, and for the family. In particular, she said that, on that occasion, Christopher was taking photographs of her new baby. Sue's then husband, Glen, and Kirsty, were present at the house, but they were in another room. Sue stated that she spoke to Christopher about trusts, because she did not understand what they meant. Christopher responded that, when the farm split up, he would set up a trust from it, which would work like the Myer's trust, and from which all family members would benefit. Sue, in her evidence, also stated that Christopher and she spoke about Eliza's wish to go to university, and Christopher stated that he would help to provide for Eliza's university fees. Sue explained that she had previously heard Eliza talking to Christopher on the telephone about that matter, and that Christopher and Eliza were very close.

259 In cross-examination, Sue stated that she said to Christopher that her sisters did not believe him, and she asked "Are you going to provide for us?" to which he responded "Yes". It is not entirely clear from the evidence whether Sue, in that passage, was referring to the conversation in the rumpus room, or another conversation in 2008. In further cross-examination, she stated that, in the conversation with Christopher in the rumpus room, Christopher had said "You do not understand, it was a business transaction, dad has trusted that I would look after things". She said that Christopher talked about providing a sum of $30,000 for each of the grandchildren. He said that Eliza would shortly be able to receive $30,000, because she was starting university in two years' time. In further cross-examination, Sue stated that, in fact, Eliza was present for some of the conversation. She agreed that she had not referred, in her evidence in chief, to Eliza being present for the conversation, and she said that she felt under stress when she was giving her evidence in chief.

260 Sue's evidence gained some support from Eliza Harrison. She stated that she was present on the occasion on which Christopher attended the premises at Sullivan Road in order to take photographs of her youngest brother Lachlan. Eliza had a clear recollection of Christopher stating, on that occasion, that he would provide financial support for her when she went to university. Eliza had a reason to recall the conversation, because, at that time, she was focused on showing to Christopher an offensive email, which she had received from her own father.

261 On the other hand, Christopher denied making to Sue the representations alleged in her evidence. Further, Kirsty had a good recollection of attending at Sue's premises that day, and she was firm in her denial that Christopher and Sue, in her presence, had discussed the matters stated by Sue in her evidence. Kirsty's recollection was that she remained in Christopher's company for the entire visit, save when Christopher went outside to have a cigarette on his own.

262 The conflict in the witnesses' evidence is difficult to reconcile. As I have already stated, judging on their appearance in court, and the manner in which they gave their evidence, each witness presented as sincere and honest. Having given the matter careful consideration, I am, however, satisfied, on the balance of probabilities, that Christopher did give some assurance, on that occasion, to Sue that when the Hopefield farm was divided, he would set up a trust, from their father's estate, in order to make financial provision for their family. I am also satisfied that, in that context, he made mention of having available funds, with which to assist Eliza in her university course.

263 Although Kirsty Orr had a clear recollection of being in Christopher's company for the duration of the visit, it is nevertheless quite possible that Sue did have a conversation, with her brother, which was not in Kirsty's presence, at that time. The conversation related by Sue, in her evidence, was fairly short in duration. The main purpose of Christopher's visit was to photograph Lochlann, and to make a social call to his sister. I doubt that such a conversation would have taken particularly long. It is quite feasible that Kirsty may not have been present, or within hearing, during that conversation, notwithstanding that her recall is that she was in Christopher's company for nearly all of the visit.

264 It is clear that, by early 2008, Louise and Kathryn were becoming sceptical about the undertakings made by Christopher to them at about the time of Michael Skirka's death. On the other hand, Sue, who was still on amicable terms with Christopher, clearly did not wish to become involved in a legal dispute with her brother. It is understandable, therefore, that, at that time, she would have been broaching with Christopher whether he was prepared to proceed with the suggestions which he had made, previously, about setting up a trust. Although Eliza was not due to attend university for another two years, it is also understandable that Sue would have been pleased for Christopher to set up such a trust in time to enable Eliza to obtain financial assistance for her university fees.

265 At that time, the dispute with Andrew Harrison had been resolved, and as a result, the farming operation, as a whole, had become responsible for a substantial debt used to finance the settlement with Andrew. Christopher was still estranged from Ian Harrison on the farm, and there is no suggestion that he was considering becoming actively involved again in the farming operations. Although Christopher had become very active in his new role as an advocate for the water rights of the region, nevertheless, given his estrangement from Ian Harrison, it would have been consistent with his own interests to contemplate a division of his share of the farm from the remainder of the Hopefield property.

266 Accordingly, I am satisfied, on the balance of probabilities, that Christopher did state to Sue, in January 2008, that he would set up a trust, from their father's estate, in favour of his sisters and their children. That conclusion does not involve an acceptance of all of the evidence of Sue about the conversation, which took place in the rumpus room. It is possible that Christopher mentioned that, if and when such a trust was established, a sum of $30,000 might be available for the grandchildren. However, I am not satisfied that he made any undertaking that such funds would be available shortly. It is improbable that any such representation would have been made by Christopher, in light of the then circumstances relating to the Hopefield property.

267 During 2008, the relationship between Christopher, on the one hand, and Louise and Kathryn, on the other hand, remained strained. Kathryn and Louise had lost faith that Christopher would make provision for them out of their father's estate. However, Sue remained in contact with Christopher. In cross-examination, Sue said that, during that time, she confronted Christopher, and said to him "My sisters don't believe you but you are going to provide for us aren't you?" and he responded "Yes".

268 I am satisfied, on the balance of probabilities, that Christopher did give those assurances to Sue during that period. It is clear that, at that time, Kathryn and Louise were giving serious consideration to pursuing legal proceedings against the estate. Sue, on the other hand, was trying to dissuade them from doing so, by obtaining assurances from Christopher that he would make provision for them. That context is well illustrated by a series of emails, which passed between the parties on 8 and 9 September 2008. In those emails, Paul Somerville was encouraging Christopher to talk to Kathryn, and Christopher was stating that he was disinclined to do so, because he understood that Kathryn and Louise were issuing legal proceedings against their father's estate. Paul was trying to maintain the peace, by assuring Christopher that his sisters had not yet commenced litigation. In that background, it is understandable that Sue would have been seeking an assurance from Christopher that he would stand by his earlier promises, which I found that he gave in April 2007 and early 2008, that he would make provision for his sisters and their families out of their father's estate. Sue trusted Christopher when he gave her those assurances, and she sought to dissuade her sisters from issuing legal proceedings by encouraging them also to trust Christopher.

269 Thus, in conclusion, I am satisfied, on the balance of probabilities, that Christopher made the following representations to the plaintiffs:

(a) In April 2007, he told the plaintiffs, and Paul Somerville, that he would provide, from his father's estate, for Louise and her children, and that he would also make financial provision for the plaintiffs and their children, by setting up a trust.

(b) In January 2008, Christopher repeated to Susan his statement that he would set up a trust, from his father's estate, to support all the family members.

(c) Subsequently, during 2008 Christopher confirmed to Sue that he would abide by those promises.

270 I am also satisfied that when Christopher spoke to Sue on the occasions, to which I have referred at the beginning of 2008 and during 2008, he was aware that Sue would report the substance of the conversations to Kathryn and Louise. In her evidence, Sue stated that she in fact told Christopher that she would be telling Kathryn and Louise what he had told her. Such a statement by Sue would be understandable, because, in speaking to Christopher at that time, Sue's purpose was to gain an assurance from Christopher, as to his intentions, which she could convey to her sisters, so as to placate them. In his evidence Christopher acknowledged that he knew that his sisters talked regularly amongst each other, as was the case. In those circumstances, I am satisfied that, when Christopher made to Sue the representations, which I have found, in January 2008, and subsequently during 2008, he did so in the knowledge that Sue would communicate the substance of those representations to Louise and Kathryn.

271 There were some differences in the evidence of Christopher and Sue relating to the last conversation which they had on 25 October 2009. Mr Waddell, counsel for the plaintiffs, did not seek to rely on any aspect of Sue's evidence as constituting an implied admission by Christopher of any antecedent promises made by him. It is not necessary for me, therefore, to resolve the differences between Christopher and Sue relating to that conversation. If it were necessary for me to do so, I would be satisfied that, after Sue left Christopher's house, he made telephone contact with her, and told her that the situation was complicated because he might need to buy a farm for himself. However, Mr Waddell did not seek to make any point from that aspect of the meeting.

272 The relevance of the conversation of 25 October 2009 is that it constituted an end point for Sue. Up to that stage, she had hoped that Christopher would adhere to the promises, which he had made to her, and to which I have just referred. On that day, he made it plain to her that, contrary to his previous assurances, he would not be making any provision for his sisters from their father's estate. As a result, Sue resolved to join her sisters in making a claim against Christopher.

273 The next question is whether, and in what way, the plaintiffs relevantly relied on the promises, which I have found were made to them by Christopher. In this connection, it is not necessary that the promises made by Christopher were the only reasons why the plaintiffs desisted from instituting proceedings in respect of the estate of Kenneth until after 29 July 2008. It is sufficient if those promises were a reason why the plaintiffs did not issue proceedings before that date.[5]

274 I am satisfied, on the evidence, that the promises, which I have found were made by Christopher in April 2007, in January 2008, and subsequently during 2008, did play a relevant role in inducing each of the plaintiffs, not to institute legal proceedings in respect of their father's estate until after 29 July 2008. Louise stated that, after her husband died, she accepted the promises made to her by Christopher in April 2007. Subsequently, her mind changed when Christopher began to withdraw from her. In 2008, Kathryn and she were considering taking legal action, but Sue continually reassured them that Christopher would stand by his word, and that they should trust him.

275 Similarly, Kathryn stated that she also relied on the promises made to her by Christopher. She did seek informal advice when she updated her will in June 2007. However, the advice which she obtained was cursory, and was no more than a "kerbside" expression of opinion by the solicitor while she was leaving his office. She said, in cross-examination, that during 2007, she became doubtful that Christopher would honour his promise. However, her sisters, and in particular Sue, convinced her that Christopher would honour his promise, and accordingly she desisted from pursuing her legal rights at that stage. Subsequently, when she made preliminary telephone contact with a solicitor in 2008, she was dissuaded from proceeding further, by Sue, who told Kathryn that she had been talking to Christopher, and he had told her he would honour his promise to provide for his sisters.

276 It is clear that, of the three sisters, it was Sue who had the most amount of confidence in the promises given to her by Christopher. When Louise and Kate lost contact with Christopher, in the latter part of 2007 and early 2008, Sue became the conduit between her sisters and Christopher. As I have found, during that time, he made to Sue promises that he would make provision for his sisters. As a result, she was convinced, and persuaded her sisters, that Christopher would honour his promises. It was only when Christopher made it plain that he would not do so, in October 2009, that she decided to seek legal redress in respect of her father's estate.

277 Based on the foregoing evidence, which I accept, I am satisfied that the promises, which I have found Christopher made to his sisters, played a material role in persuading the plaintiffs not to issue proceedings, for relief in relation to their father's estate, before the estate was distributed on 29 July 2008. There may well have been other factors which, also, contributed to the decision by the plaintiffs not to embark on litigation in respect of their father's estate at that time. In particular, they would, naturally, have been reluctant to have taken a step, which would be likely to cause an irretrievable rift in the relationship with Christopher. However, it is clear that during that period Kathryn, and to a, perhaps, lesser extent, Louise, were both contemplating taking legal action in relation to their father's estate. They were dissuaded from doing so by a number of factors, but particularly by Sue's reassurance, which she had received from Christopher, that he would make provision for them out of the estate. It was only when it became clear to Sue, on 25 October 2009, that Christopher would not be making any such provision for her sisters or herself, that she realised that it was futile to rely on his assurances.

278 Accordingly, I am satisfied that the promises, which I found that Christopher made to the plaintiffs, were a relevant factor in inducing them not to commence legal proceedings, in respect of their father's estate, until after 29 July 2008, when the estate was finally distributed.

279 The next question concerns Christopher's knowledge of the reliance by the plaintiffs on the promises, which I have found he made to them.

280 First, it is clear that, at all material times, Christopher knew of, and understood, that his sisters had a legal right to challenge Kenneth's will.

281 In 1998, Christopher, together with his cousins Ian and Andrew Harrison, had obtained legal advice as to the ability of other members of their families to contest their fathers' wills. In cross-examination, Christopher stated that he understood, from that, that his mother and his sisters had the right to contest his father's will.

282 Further, by April 2007, Christopher was well aware that Kathryn and Louise were contemplating commencing legal action in respect of their father's estate. He understood that they were dissatisfied with the fact that they had been left out of their father's will. At the time he made the promises, which I have found he made in April 2007, I do not consider that he was motivated to dissuade his sisters from instituting legal action against his father's estate. Rather, the promises were made in the aftermath of a family tragedy, in which Christopher was motivated by a sincere desire to assist his sisters, and in particular Louise. Nevertheless, when he made those promises, he was well aware that Louise and Kathryn had been giving serious consideration to consulting legal advice about the matter. He made the promises in circumstances in which they would have had the natural tendency to dissuade Kathryn and Louise from instituting proceedings against their brother. Further, the promises which, I have found that Christopher made to Sue in 2008, were given in different circumstances. By then, Christopher had, again, become substantially estranged from Louise and Kathryn, as they gave further thought to pursuing their legal options. When Christopher made those promises, in 2008, to Sue, he would well have appreciated that, when the promises were conveyed by Sue to their sisters, they would have been likely to deflect Kathryn and Louise from seeking legal advice on the matter.

283 Although, at that stage, it was not Sue's declared intention to join her sisters in any such litigation, I am satisfied that the circumstances, in which Christopher made those promises, were such that he would have expected Sue, also, to believe that he would abide by them. Sue was then married, with three children, two of whom were infants. Her husband provided no financial support to her. In those circumstances, Christopher would have well understood that, if Kathryn and Louise were intending to issue proceedings, there was at least a reasonable possibility that Sue would join with them. In those circumstances, I am satisfied that in making the promises which I have found, Christopher had sufficient understanding of the circumstances of Sue to understand that she, too, would rely on them, by not seeking to join her sisters in any litigation which they might commence in respect of their father's estate.

284 The next question is whether the plaintiffs acted to their detriment in reliance on the representations, which I have found were made by the defendant, such as to entitle them to relief in equity under the principles of proprietary estoppel.

285 The plaintiffs' case is that, by relying on the promises made to them by Christopher, each plaintiff lost her entitlement to seek provision from Kenneth's estate under Part IV of the Act. In the course of the case, I raised with counsel whether the proper characterisation of the detriment sustained by the plaintiffs would be the loss by each of them of a valuable opportunity to make a claim for provision under Part IV of the Act, as distinct from the loss of an actual entitlement under the Act itself. Mr Waddell's position, on behalf of the plaintiffs, was that the relevant detriment was constituted by the loss of the entitlement of the plaintiffs under the Act. Mr Shepherd, on behalf of the defendant, initially took the position that the relevant detriment was the loss of opportunity by the plaintiffs to make a claim for provision under Part IV of the Act. However, in final address, his position changed, and he agreed with Mr Waddell that the appropriate characterisation of the detriment was the loss of the entitlement of the plaintiffs. Thus, it was common ground that, in order to establish relevant detriment, the plaintiffs would need to establish that they had lost an actual entitlement to provision under Part IV of the Act.

286 Since probate of Kenneth's will was granted in May 2004, the time prescribed by s 99 of the Act, within which the plaintiffs were entitled to bring an application for further provision under Part IV of the Act, expired in November 2004. Thereafter, if they wished to commence such an application, they would have needed to make application, first, for an extension of time under s 99 of the Act. In accordance with the findings, which I have made above, no relevant promise or representation was made by the defendant to the plaintiffs until April 2007. I am satisfied that, as a result of that representation, and representations made subsequently by Christopher to Sue, the plaintiffs were persuaded not to seek to institute any proceedings in respect of Kenneth's estate before it was finally distributed on 29 July 2008. If the plaintiffs had sought to make a claim during that period, they would, first, have been required to make an application for extension of time under s 99 of the Act.

287 The first question, on the issue of detriment, accordingly, is whether the plaintiffs would have been entitled to an order extending the time within which to bring a claim under Part IV of the Act, if they had made such an application between April 2007 and July 2008. Mr Waddell and Mr Shepherd both submitted that I should decide that question, as if I were the judge deciding such an application for extension of time. Strictly speaking, the proper question is that which I have articulated above, namely, whether a judge, determining such an application, would have extended the time within which the plaintiffs might bring an application for provision out of their father's estate under s 99 of the Act.

288 The decision of a court, on an application to extend time under s 99 of the Act, is discretionary. The court must be satisfied of circumstances which would induce it, acting judicially, to excuse the applicant from the effect of the six month limitation period prescribed in s 99.[6] In Re Guskett[7], Herring CJ stated:

"It is for the applicant to make out a case that will justify the granting of the indulgence sought. He has to show reasons why his failure to apply within the time allowed should be excused. Every case will have to be dealt with on its own facts, but it would seem necessary for the applicant to satisfy the Court that the circumstances are such as to make it unjust for him to be penalised for being out of time. As, moreover, he is seeking an indulgence, he should apply promptly for an extension of time."

289 There are no inflexible rules which apply to the determination of the discretionary judgment of an application to extend time under s 99. Obviously, the length of the delay, and the reasons for it, are relevant factors. Ordinarily, it would be expected that an applicant should be able to proffer some reason or explanation why the application was not made within time, particularly where the delay is reasonably substantial. However, there is no requirement that, in every case, the delay should be satisfactorily explained.[8]

290 Another relevant circumstance is whether the making of an order for an extension of time would occasion prejudice to other interested parties. In Groser v Equity Trustees Limited[9], Gillard J stated:

"What is important in considering the period of delay is the question of prejudice if the indulgence is granted. But absent prejudice, a period of delay and an inadequate explanation should not stand in the way of a just result."

291 The strength of the applicant's case is a factor of some relevance. However, ordinarily, an application for an extension of time is considered as a preliminary step in the proposed proceedings. The court does not embark on a detailed analysis of the applicant's potential claim. Obviously, if the claim is groundless or hopeless, the grant of an extension of time would be futile.[10] On the other hand, the mere fact that an applicant has an arguable case for relief under s 91 of the Act is not, without more, a sufficient reason to extend time[11].

292 Ultimately, an application for extension must be determined according to the justice of the case, taking into account, and appropriately weighing, all the relevant factors, to some of which I have referred above.[12] In addition to the factors, which I have described above, it is also important to take into account the size and nature of the estate, the position of the individual applicants, the rightful expectations of those already interested under the will, and, to some extent at least, the importance that there be some finality and certainty in the administration of a deceased person's estate.

293 In the present case, the manner in which the parties have argued this issue has left me in the position of determining whether, if an application had been made in 2007 to 2008, for an extension of time, a court would have acceded to that application. The determination of that question, in the framework of the current proceeding, is somewhat artificial. That issue is to be decided by me as part of a claim arising from the doctrine of proprietary estoppel. Accordingly, I have been exposed to a significantly more substantial body of evidence in this case than I (or any other judge) would have received on an application for extension of time, under s 99, in 2007 to 2008. The decision whether, at such a time, an application for extension of time would have been granted, is necessarily an exercise in retrospect, which has its disadvantages. In determining this issue, I have been conscious of those considerations.

294 By 2007 to 2008, only a small part of the estate of Kenneth had been distributed, namely, the legacies of cash and shares, which had been made in favour of Jillian. However, the most significant part of his estate, namely, his interest in the Hopefield property (and the associated water rights) had not been distributed. There had been no relevant change in the nature of those rights, save that the water rights had been "unbundled". It was common ground that those rights formed part of the bequest to Christopher.

295 I have already found, in this judgment, that I am not satisfied, on the balance of probabilities, that Christopher made any relevant promise or representation to the plaintiffs, before April 2007, that he would make provision for them out of Kenneth's estate. Accordingly, on a hypothetical application for extension of time in 2007 to 2008, the plaintiffs would not have been able to rely on the making of any such promises or representations prior to April 2007. Thus, the plaintiffs would not have been able to establish any relevant reason or excuse for failing to institute an application under Part IV of the Act within the time prescribed by s 99, or at any time before April 2007.

296 Further, it is evident that the plaintiffs, at least from May 2004, each knew of the contents of Kenneth's will, and they each knew that they would not be inheriting anything from his estate. In her evidence, Sue stated that she had always known that, if she was left out of her father's will, she would have a right to challenge it. Kathryn gave similar evidence. Louise's evidence was silent on that point. However, she did state that if, at any stage, Christopher had not made the representations, which she had related to in her evidence, she would have sought advice as to her entitlement as one of her father's daughters. I infer from that evidence that Louise, at all material times, had at least sufficient understanding that she might have a right to challenge the dispositions in her father's will. From late 2005, or at least early 2006, Kathryn and Louise were discussing whether they should seek legal advice concerning their rights.

297 If the above matters were the only relevant factors to be considered, they would have stood in the way of a successful application for an extension of time between 2007 and 2008. However, as I have already noted, a series of significant events occurred in late 2006 and early 2007, which, I consider, are of some importance to the issue which I am now determining. Until late 2006, the Hopefield farm was Christopher's sole means of earning a livelihood. By then, he had worked on the farm for twenty years, and he had devoted his entire working life to it. His efforts, to that stage, had been directed to, and indeed had made a significant contribution towards, the continued ability of the Hopefield farm to operate as one unit. It seems sufficiently clear that two of the reasons for the primary disposition of the farm to Christopher in Kenneth's will, were to enable Christopher to continue to pursue his livelihood on the farm, and also to ensure the continued viability of the Hopefield farm as a unit.

298 However, those two factors had altered radically in late 2006 and in early 2007. Christopher ceased working on the farm in late 2006. His relationship with his cousin Ian had irretrievably broken down. Christopher had found it untenable to continue working in circumstances in which Ian, and his father Clifford, had dominated the decision making and management of the farm. As a result, by early 2007, Christopher no longer worked the farm as his means of his livelihood.

299 In addition, in May 2007, the claim by Andrew Harrison was settled, with the consequence that the farm assumed a significant financial burden. The debt incurred in respect of Andrew's settlement placed, and continues to place, a substantial pressure on the ongoing viability of the farm.

300 It is clear that in late 2006 and early 2007, Christopher was, at least, amenable to considering the division or sale of the Hopefield property. As I have already noted, he instructed solicitors, in late 2006, to write to Ian Harrison seeking a division or sale of the property. Further, in July 2007, the discussion paper, distributed by Christopher to members of the family in relation to the VicSuper offer, made express reference to the prospect of the property being divided into four parts.

301 Thus, matters relating to the interest, which Christopher had inherited under Kenneth's will, had altered substantially in 2007. At that time, Louise's position had also dramatically changed, with the sudden death of her husband. Ordinarily, a change in the position of the estate, or of any of the applicants, may not be sufficient, of its own, to justify the grant of an extension of time.[13] However, the changes, which occurred in this case, were more fundamental. They affected a significant aspect of the underlying rationale for the disposition made by Kenneth to Christopher of the farm in his will in two important respects. First, Christopher was no longer working the farm as the means of deriving his livelihood. Secondly, the ongoing continuity of the Hopefield farm, as a single entity, was very much under threat.

302 In the next section of this judgment, I shall analyse the question of the entitlements of the plaintiffs to provision from their father's estate, if they had instituted an application, under s 99 of the Act, before the distribution of the estate on 29 July 2008. However, as shall become evident, I am satisfied that each of the plaintiffs would, at the least, have had an arguable claim for such relief. Certainly, any such claim could not be characterised as "hopeless". At the time of their father's death, Sue was a single mother with limited assets. Kathryn had three young children, two of whom were pre-school age. Her husband was earning a good income, and she herself was a trained teacher. They had a comfortable net asset position. However they were by no means wealthy. Paradoxically, the claim for provision of Louise, at the time of her father's death, would have probably been the weakest claim. She was then married, and her husband and her were each earning a good income. However, as my analysis in the next section shall disclose, her claim under Part IV, at that time, could not be described as hopeless.

303 The question whether, in 2007 to 2008, an application for extension of time on behalf of the plaintiffs would have succeeded, is not susceptible of a simple answer. However, weighing the factors, to which I have referred above, I am persuaded that a court would have acceded to such an application. In particular, in my view, the salient factors were, first, that each of the plaintiffs had an arguable claim to relief under Part IV of the Act. Secondly, as I have demonstrated, the factors relating to Christopher's livelihood, and to the primary asset of the farm, had significantly altered, in a manner which substantially undermined the rationale for the disposition made in Kenneth's will. Thirdly, it has not been demonstrated that there would be any prejudice to Christopher, if the application for extension of time had been allowed at that time. Although the delay by April 2007 would have been close to three years, and the plaintiffs would not have demonstrated any proper reason for failing to bring an application within time, or earlier, nevertheless I consider that the other factors, to which I have just adverted, would be sufficient to persuade a court to grant the applicants an extension of time in all the circumstances.

Plaintiffs' entitlements under Part IV of Administration and Probate Act

304 The next question, is then, whether the plaintiffs would have succeeded on claims made by them, under Part IV of the Act, for provision from their father's estate, if such claims had been commenced by them between April 2007 and July 2008.

305 Section 91(1) of the Act provides that the court may order that provision be made out of the estate of a deceased person "for the proper maintenance and support of a person for whom the deceased had responsibility to make provision". Thus, the jurisdiction to make an order, under s 91, depends, first, upon the court being satisfied that the deceased had a responsibility to make provision for the plaintiffs from his estate, and, secondly, upon the court being satisfied that the will of the deceased does not make adequate provision for the proper maintenance and support of the plaintiff.

306 It was correctly accepted by counsel that that jurisdictional question is to be determined by reference to the circumstances existing at the time of the death of the testator, taking into account all contingencies, which might reasonably have been anticipated to have been taken into account by the testator in the performance of his testamentary duty.[14] On the other hand, if the court is satisfied that the deceased had such a responsibility, and failed to discharge it, the court, in determining the amount of any provision to be ordered in favour of the plaintiff, takes into account the facts and circumstances which exist at the time of the hearing.[15]

307 The "responsibility" of a deceased, referred to in s 91(1), has been characterised as a moral, as distinct from a legal, duty.[16] The question whether the deceased had such a duty to the plaintiff, and whether the deceased discharged that duty, is determined by reference to the perspective of a hypothetical wise and just testator. A classic statement of that test is in the judgment of the Privy Council in Bosch v Perpetual Trustee Co Limited[17]:

"Their Lordships agree that in every case the Court must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father."

308 In determining a claim under s 91 of the Act, it is important to give appropriate weight to the fundamental freedom of testamentary disposition of the individual. The courts have, on repeated occasions, stated that provisions, such as those contained in Part IV of the Act, are not a licence for the court to rewrite the will of the testator according to the court's own conception as to what provision the court should have made in favour of the applicant.[18] Rather, the jurisdiction of the court, under s 91, is only enlivened, if the court is satisfied that the deceased had a moral responsibility to the applicant, which the deceased failed to discharge. The critical question is whether the deceased had, and discharged, a duty to make "adequate provision" for the "proper maintenance and support" of the applicant.[19] The court is obliged to give appropriate weight to the adjectives "adequate" and "proper". The content of each of those two terms is to be determined relative to the context of the relevant facts of the case, including the needs, desserts and circumstances of the applicant.[20]

309 In determining the question whether the testator had, and discharged, the requisite moral responsibility, the court has regard to "prevailing community standards". The standards of the hypothetical "wise and just testator" are by no means static, but, rather, are a reflection of the fundamental values of right thinking members of the testator's community. Thus, in Petrucci v Fields[21] Mandie J stated:

"Consideration of the evidence as a whole in the light of the statutory criteria [in section 91(4)(e) to (p)] gives rise to the question whether the deceased had a 'moral' responsibility to make any provision for the proper maintenance and support of any of the plaintiffs. In considering the question of moral responsibility, in the light of those criteria, the Court of necessity must have regard to the ordinary circumstances existing in society, or 'prevailing community standards' or make a value judgment in the light of current standards, arising as a matter of morality or humanity."[22]

310 The plaintiffs are the adult daughters of Kenneth Harrison. By the time of his death, each of them had long departed the family home, and were living independently from their parents. At one time, an adult son, living independently of his parents, was considered only to be entitled to a claim on his parents' bounty, if he were able to show some "special need" or "special circumstance".[23] That proposition is no longer good law. In the case of an adult son, living independently in a sound financial position, it may be difficult to establish the jurisdictional requirement, but such an applicant does not need to demonstrate any special need or claim, in order to succeed under s 91 of the Act.[24] Certainly, it has not been the requirement of the law that adult daughters, whether living independently, or not, of their parents, need to show any special claim or need. The fact that an adult daughter is married and living independently of her parents, while a relevant factor, is not, per se, a disqualifying circumstance, for the purpose of the jurisdictional questions to be decided under s 91 of the Act.[25]

311 Ultimately, the question whether Kenneth owed to any of the plaintiffs a duty to make provision for them, and if so, the amount of that duty, is to be decided by reference to all the relevant facts of the case. In determining those questions, the court is obliged to have regard to the factors specified in s 91(4)(e) to (o), as well as to any other matter which the court considers to be relevant. Accordingly, it is necessary, to consider each of the factors referred to in those paragraphs of s 91(4).

312 The relationship of the plaintiffs, and the defendant, to Kenneth were, of course, as his adult children. Each of them had enjoyed a close and loving relationship with their father. An example of that relationship can be found in the evidence of Sue, and in particular her vivid description of the night which she spent in hospital with her father, when he was gravely ill, in 2000. The closeness of the relationship was, to some extent, reflected in the fact that, during the week between Kenneth's death and his funeral, the four siblings spent a considerable amount of time together and with their mother, in shared grief. It is relevant to observe, while considering this subparagraph, that Christopher appears to have had a particularly close relationship with his father. At his father's behest, he returned to the farm after completing his university degree. He took over the management of the farm from his father, and lived close to his parents.

(f) Obligations or responsibilities of the deceased to the plaintiffs and the beneficiaries of the estate

313 At the time of his death, Kenneth did not have any specific obligation or responsibility to any of the three plaintiffs, other than what might be described as "the broad obligation of any parent to an adult child".[26] On the other hand, Christopher had a reasonable expectation (which indeed was shared by the plaintiffs) that he would inherit the farming business, and that he would be entitled, at the very least, to a significant share of his father's interest in the Hopefield property.

314 As I have already indicated, the principal asset, held by Kenneth at the time of his death, was his interest in the Hopefield property (and the attached water rights) which, for probate purposes, was valued in the sum of $3,250,000. In addition, he held bank accounts, and had a one quarter share in accounts in the name of CBH, which totalled $101,000. He also owned 1105 shares in AMP Limited worth $8,850. Thus the gross value of his assets were $3,359,000. His one quarter share of the debt of CBH amounted to $112,270. That liability was assumed by Christopher under the terms of Kenneth's will.

315 In making their claim in this case, the plaintiffs did not dispute the propriety of the legacy, by Kenneth to Jillian, of his personal estate. Thus, the issue in this case is whether Kenneth had a responsibility to make a disposition in favour of the plaintiffs of a part of his interest in the various parcels of land which, collectively, comprise the Hopefield property.

(h) The financial resources of the plaintiffs and the defendant

316 Sub-paragraph (h) of s 91(4) requires the court to take into account the financial resources and the financial needs of the applicant and of any other beneficiary "at the time of the hearing and for the foreseeable future". However, as I have already indicated, it is common ground that, in determining whether Kenneth had a responsibility to make provision for the plaintiffs, I should take into account only the circumstances of the plaintiffs (and the defendant) at the time of the death of Kenneth.[27]

317 I have already set out, in summary terms, the financial circumstances of each of the plaintiffs and the defendant at the time of Kenneth's death. At the time of her father's death, Louise had been in full time work for most of her career. As I have noted, she had just been appointed to nurse unit manager of a rehabilitation unit at the Royal Hobart Hospital. Her husband, Michael Skirka, was employed as a geologist, and he had enjoyed substantial success in his chosen profession. Louise and Michael were then renting their own home, but they owned an investment property in Hobart, and a parcel of land at Sandford. Their total assets were worth approximately $497,000, and they had liabilities totalling $146,000. Thus their total net worth was approximately $350,000. At the time of her father's death, Louise did not have any children.

318 In 2003, Sue was not married. Her daughter, Eliza, was aged 11 years. Sue was then working as the manager of Residential Services at a nursing home in Ballarat. Her salary package was valued at $93,500 per annum, and it included superannuation and a motor vehicle. She owned her own home at Buninyong, but her net equity in it was only $16,000. She did not have any other assets. Before her father's death, Sue had been regularly employed in the nursing profession. She had commenced work at Kelaston Nursing Home in 1999. Her previous position was as relieving Director of Nursing Quality Assurance, and Coordinator Midwife District Nurse, at the Lorne Community Hospital, between 1996 and 1998.

319 At the time of her father's death, Kathryn was substantially confined to home duties, looking after two pre-school aged daughters. Her eldest daughter had commenced primary school. Kathryn is a qualified teacher. In that capacity, she worked one day per week receiving $180 per day. Her husband, Paul Somerville, was employed as an accountant, then earning $42,000 per annum. They owned their own home at Axedale, which was then valued at $330,000. Their joint assets were valued at $410,000, and they had joint liabilities of $63,000. Thus, their net asset position was worth approximately $347,000.

320 At that time, as I have already noted, Christopher was receiving $400 per week by way of drawings from the Hopefield Trust. His taxable income was $22,000. He lived in the former matrimonial home at Durham Ox. The present value of that home is $70,000. Mr Tamblyn, in cross-examination, stated that it would be difficult to sell the property. It consists of a five acre house block, with a translocatable timber weatherboard house on it. As there are not many employment positions available in the area, there is not much demand for properties of that type. Mr Tamblyn expected that currently it could only be rented for $40 per week. At the date of Kenneth's death, the mortgage debt to the National Australia Bank was $26,500.

(i) Any physical, mental or intellectual disability of any applicant or any beneficiary of the estate

321 None of the parties have any disability which would be relevant.

322 At the time of their father's death, Sue was 39 years of age, and Louise and Kathryn were each 35 years of age. Christopher was then 41 years of age.

(k) Any contribution of the plaintiffs to building up the estate or to the welfare of the deceased or the family of the deceased

323 None of the plaintiffs, since their childhood, had made any contribution to the farm. There was some dispute in the evidence as to whether the plaintiffs had carried out any work on the farm when they were children. However, on any view, the work undertaken by them would have been quite insignificant as a contribution to the estate of Kenneth. By contrast, it is clear, from matters to which I have already referred, that Christopher made a substantial contribution to his father's estate, particularly since he returned to the farm in 1985.

(l) Any benefits previously given by the deceased to any applicant or to any beneficiary

324 There was some dispute, in the witness statements, as to the nature and extent of any assistance given by Kenneth and Jillian to the plaintiffs and the defendant in their earlier years. It would appear that Sue and Louise paid their own way through tertiary education. John Harrison paid for Kathryn's education at Melbourne University. For the first three years of his course at Bendigo College, Christopher's parents paid his rental accommodation, of $25 per week. His parents also from time to time provided him with some food, which he contributed to the household which he was then sharing with other students. Overall, I am satisfied that neither the plaintiffs nor the defendant received any significant benefits from their parents after their childhood.

(m) Whether the applicant was being maintained by the deceased before his death

325 None of the plaintiffs, nor the defendant, was being maintained in any way by Kenneth before his death, save that Christopher was dependent on the income which he earned from working on the farm, which was jointly owned by Kenneth and his brothers.

(n) The liability of any other person to maintain the plaintiffs

326 At the time of Kenneth's death, Louise and Kathryn were both married. As such, their husbands then had a responsibility to provide appropriate support for them, and in the case of Kathryn, for her children. Sue's ex-partner did not have any enforceable liability to provide any support for her or for Eliza.

(o) The character and conduct of the plaintiffs or any other person

327 It was not suggested that there was any disentitling conduct on behalf of either of the plaintiffs or the defendant. As I have already noted, they were each close to their father. On the other hand, Christopher had strong desserts, arising from his hard work on the farm, and his contribution to its survival.

Conclusions as to responsibility of Kenneth Harrison

328 The main difficulty, in determining whether Kenneth had a responsibility to make provision for the three plaintiffs from his estate, pursuant to s 91(1) of the Act, arises from the nature of his estate, and, in particular, from the fact that, apart from the legacies to Jillian, the residue of his estate consisted solely of his one quarter interest in the parcels of land, which, collectively, comprised Hopefield farm. If I were to disregard that fact, I would have little hesitation in concluding that, at the time of his death, Kenneth did have a responsibility to make some provision for each of the three plaintiffs from his estate. At that time, Sue was a single mother. She was solely reliant on her income to support herself and her 11 year old daughter. She had few assets, and thus little security. Kathryn was in a better position. However, she had three young children. Kathryn and her husband Paul had a reasonably sound asset base, but, in the context of the ages of their children, they did not have a substantial amount of assets.

329 As I have already stated, paradoxically, at the time of Kenneth's death, Louise had the least strong claim for consideration from his estate. However, it is relevant that, by Christmas 2003, she was pregnant with her first child. The tenor of her evidence was that her husband and she always wanted children, and it was a matter of both relief and joy when she announced her pregnancy. Thus, at the time of his death, it is likely that the testator would have been aware that Louise was intending to raise a family. Her husband Michael had a good income. However, as a geologist, his livelihood would, at least to some extent, have been somewhat vulnerable to the vagaries of the mining industry. If I were to disregard the nature of Kenneth's estate, it is significant that the value of the estate was quite substantial, being in excess of $3,000,000. In those circumstances, I consider that a court would have deemed it to be the responsibility of Kenneth to make some disposition in favour of each of his three adult daughters, in order to provide to them some buffer against the vicissitudes of life. Such a responsibility would, I consider, reflect prevailing community standards, whereby parents commonly do not consider that their role has terminated once an adult child has established his or her own life independently of them.[28]

330 As I stated, the complicating factor, in determining whether Kenneth did have such a duty, derives from the nature of his estate, in combination with the strong competing claim of Christopher to a substantial part of Kenneth's bounty. Christopher's competing claim would be based on the fact that his livelihood was very much tied to the interest which Kenneth held in the Hopefield farm. For the past eighteen years before Kenneth's death, Christopher had been living in modest circumstances, on a low income, and with few assets. He had dedicated his working life to the farm, and had made a significant contribution to the viability of the farm, and thus to the size of his father's estate.

331 In addition, Kenneth would have been aware that, if he bequeathed a portion of his share in the farm to his three daughters, he would thereby fragment the ownership of the farm, and thus make the continued existence of the farm, as a single unit, more difficult. At the same time, any such provision, in his will, in favour of the three plaintiffs, would not have placed in their hands a readily realisable asset. Thus, Kenneth would have been aware that any such disposition by him, in his will, may not produce the desired benefit, but could have the disadvantage of rendering the continued viability of the Hopefield farm, as a single unit, more problematic.

332 In that way, the nature and constitution of the estate of Kenneth is a particularly complicating factor in determining whether, at the time of his death, Kenneth did have a responsibility to make provision for the plaintiffs in his will. However, on balance, I am satisfied that, notwithstanding the difficulties to which I have just referred, Kenneth did have such a responsibility to his three daughters. At the time of his death, his estate was substantial. His obligation to leave a significant part of it to Christopher would not, I consider, have excluded entirely his co-existent obligation to make some provision for the three plaintiffs. While, ultimately, such provision could only consist of a limited interest by them in the Hopefield property, nevertheless I do not consider that that factor negated the responsibility, which he had, to make some provision for them, in order to provide each of them with some financial security against future vicissitudes and misfortune. Accordingly, I do consider that each of the three plaintiffs were persons, in respect of whom Kenneth Harrison had a responsibility to make provision for their proper maintenance and support, under s 91(1) of the Act.

333 Having reached the conclusion that Kenneth had, but did not fulfil, a responsibility to make provision for each of the three plaintiffs, the next question, which arises, concerns the amount of provision (if any) which would have been awarded to the plaintiffs, if they had instituted an application for such provision between April 2007 and 29 July 2008.

334 As I have already noted, that question is to be determined by taking into account the circumstances of the plaintiffs, and the defendant, at the time of the hearing. Strictly speaking, in the context of the present case, the question would be answered by reference to the circumstances of the parties, at the time at which a trial of an application, commenced between 2007 and 2008, would have taken place. I would expect that, in the ordinary course, such a trial would have taken place in about 2009. However, there is no suggestion that the circumstances of any of the parties are materially different now to what they would have been over the last two to three years. That being so, it is appropriate that I answer the question by reference to the current circumstances of the parties.

335 The position of Louise has, of course, altered radically, since the time of her father's death. Louise now lives in Bendigo with her two children. Her eldest child, Angus is 7 years of age. Her youngest son, Hamish, is 5 years of age. As I have already noted, he has been diagnosed with autism, and is significantly disabled. Louise's taxable income is $39,000 per annum. She works half time as a team leader with the Chronic Disease management at Bendigo Health. Louise is unable to work full time, as she needs to devote substantial time to Hamish's care, and in particular to his therapy. She owns a rental property in Tasmania, from which she receives rent of $11,500 (gross) per annum. She also receives a disability allowance of $430 per fortnight in respect of Hamish. Currently, she is using a cheaper computer program for Hamish, which costs $1,200 per year. She would like to be able to use a more sophisticated program, which would cost $25,000 per year, but she is unable to afford it. Louise has assets, including her home in Bendigo, a rental property in Tasmania, some shares, and managed funds, totalling $940,000. Her current liabilities consist of a mortgage debt of $166,000. She has been reinvesting the income from the managed funds, and the shares which she owns, in order to create a fund to provide for Hamish. She told me that, notwithstanding recent gains, Hamish remains substantially disabled. His verbal skills are limited, and he has no insight into danger. It is clear that there is no prospect of Hamish ever being able to live independently.

336 As I have already noted, the second plaintiff, Sue Harrison, has a daughter, Eliza aged 19 years, and two sons by her marriage to Glen Lawler, Darcy, aged 6 years, and Lochlann, aged 4 years. She has been separated from her husband since January 2009. Sue currently lives in Strathfieldsaye in rented premises, and is working with Bendigo Health as a home and community services assessment officer. Sue is a trained nurse, and she has always had regular employment, including in positions of management in nursing. She receives no financial support for herself or her children from her husband, or from Eliza's father. Her annual income is $69,000, consisting of her salary, rent from a Colac property which she jointly owns with her husband, Centrelink benefits, and a child care saving rebate. She pays rent of $350 per week. Her estimated expenditures are equivalent to her income.

337 Sue's assets total $296,000. They include a half share in a house in Colac, and a block of land at Strathfieldsaye. She has liabilities (excluding legal fees in this case) of $202,000. Thus, her net asset position is about $94,000. The property, which she and her husband jointly own in Colac, is subject to a mortgage debt, which is about 90 percent of its value. They have tried to sell the property, but have been unable to do so. In recent months, Sue has changed her employment, and she now works seven days per fortnight, in order that she can spend some time with her children. She explained to me that she had had little time with Lochlann since he was born, and she receives no support from her husband. She has the sole care for both her children.

338 As I have already noted, Kathryn's husband, Paul Somerville, is an accountant by profession. He works as finance manager at Haven, which provides services for homeless people. Kathryn is a teacher/librarian. She is currently on leave from Castlemaine Secondary College, and she has just commenced a casual position, working two days per week, in the deaf unit at Bendigo South East College. However, she has been informed that she will be made redundant at the end of this year, because the unit is reducing its staff. The joint annual income of Paul and Kathryn (before tax) is $100,000. Their three daughters are aged 13, 11 and 9 years respectively. They jointly own assets, including their own home at Axedale, the total value of which are $727,000. They have joint liabilities of $138,000, and thus their net assets are worth $588,000.

339 As I have already noted, Christopher ceased working on the Hopefield farm in late 2006. He has continued to receive drawings from the Hopefield Trust at $400 per week. He has recently ascertained that, during the last two years, those drawings have been treated as loans by the trust to him. The decision to treat the drawings as loans was made by Ian and Cliff, without Christopher's agreement. After Christopher ceased work with the Irrigators Council in 2007, he has been involved in making submissions to governmental inquiries and to Senate committees concerning water rights in the Goulburn Valley area. He has not derived any income from that work. In his early years, Christopher had devised a computer program, which was marketed by Mr Ian Itter, a computer consultant, and from which Christopher received royalties. However, he has not received any such royalties for some time. Christopher told me that he has not been developing IT programs since about 2006, and his knowledge and skill base have now become outdated.

340 Apart from the interest in the Hopefield property and the water rights which he received by the terms of his father's will, Christopher has few assets. He estimates that his house at Durham Ox is worth about $70,000. That estimate of its value is supported by the evidence of Mr Tamblyn, who has substantial familiarity with the values of properties in the area. As I have already noted, Mr Tamblyn's evidence was that it would be difficult to sell Christopher's property, as there is little demand for properties of that type. Christopher's current mortgage debt in relation to the property is $17,500. He also has a NAB interest only market rate facility of $200,000, which is currently drawn to $140,000. He does not own a motor vehicle. His partner, Kirsten Orr, has a number of qualifications, including a degree in environmental engineering. However, she is currently confined to home duties, as their daughter, Siri, is only six months old. In her witness statement, Kirsty confirmed that, ever since she met Christopher in July 2006, he has lived on very meagre earnings. They receive Centrelink benefits of $192 per fortnight, and also receive monthly payments of $407 as the baby bonus, which will expire in December 2011.

341 It is common ground, based on the evidence of both Christopher and Mr Tamblyn, that the current market value of the Hopefield property would be assessed at $400 per acre. On that basis, the one quarter share in the property held by Kenneth at the date of his death would be currently worth $1,450,000.

342 Kenneth also held water rights of 1564.1 megalitres. There was some debate in the evidence as to their current value. The evidence satisfies me that the current market value of the water rates is $1,400 per megalitre. There is a government Buyback Scheme, under which the Commonwealth government is purchasing water rights at the rate of $1,800 per mega litre. The evidence also reveals that, if the water rights were sold either on the market, or to the government, an exit fee of $400 per megalitre would be payable by the owner of the rights.

343 There are, however, a number of complexities involved in selling water separately to the land to which it relates. In particular, the sale of water on the market is subject to a restriction, which is described as the "four percent cap". That restriction is designed to ensure that, at any time, no more than four percent of the water entitlement of a particular district is traded out of that district. In addition, there are a number of trading rules associated with selling water rights which are associated with properties (such as Hopefield) on which the irrigation facilities have been modernised.

344 There are also practical reasons militating against the sale of Kenneth's water rights, other than on a minor scale. The State of Victoria has just emerged from a thirteen year drought. It is important for the viability of the Hopefield property that the owners of the water rights retain those rights.

345 As a result of each of the foregoing matters, it was, in the end, common ground between the parties that I should assess the value of the water rights on the basis of their market value, if they were sold in conjunction with the sale of the land. On that basis, I would therefore assess the value of the water rights, held by Kenneth at the date of his death, on the basis of $1,400 per megalitre. As I understand it, such a sale would, nonetheless, be subject to an exit fee of $400 per megalitre. As a result, the market value of Kenneth's water rights would be assessed in the sum of $1,500,000. Accordingly, the current value of the interest of Kenneth in the Hopefield property, and the current value of his water rights, would be worth the sum of $2,900,000.

346 By the terms of Kenneth's will, Christopher assumed the ongoing liability of Kenneth under guarantees given by him in respect of loans to CBH by the National Australia Bank. Currently, CBH has an overdraft facility with the NAB of $280,000, which is drawn beyond that limit to a total amount of $329,000. In addition, CBH has a leasing facility of $650,000, which is currently drawn to $470,000. Thus, Christopher's one quarter liability, in respect of those two facilities, amounts to the sum of $200,000.

347 A further complicating factor, relating to the current net value of Kenneth's estate, arises from the proceedings instituted on behalf of Noel Harrison for a division of the Hopefield property pursuant to Part IV of the Property Law Act 1958. Those proceedings have not yet been heard. In cross-examination, Christopher stated that Noel Harrison, in those proceedings, seeks to divide the land on the basis that Christopher receive five or six different sections, which are not contiguous, and which are separated in such a way that it would not be viable to farm them. On the basis of that evidence, if Noel Harrison's application for division succeeded, and if he were granted an order on the basis outlined by Christopher in his cross-examination, the value of the one quarter share of Kenneth in the Hopefield property would, I apprehend, be significantly less than that which I have stated above.

348 In my view, in determining the amount of provision, if any, which a court would make to the three plaintiffs under s 91 of the Act, the court would proceed on the basis that Christopher had the principal claim to benefit under the estate of his father. That claim is based on three factors. First, at least until late 2006, Christopher's work on the Hopefield farm had been the sole means of his livelihood. Since he ceased to work on the farm, his role as an advocate for water rights in the district has been of benefit not only to the area as a whole, but also to the Hopefield property. Secondly, since returning to the farm when he completed his tertiary studies in 1985, Christopher had made a significant contribution to the ongoing viability of the farm. As a result of his endeavours, the value of the property has been enhanced, and, thus, the value of his father's interest in the property has increased. His evidence to that effect is well supported by the evidence of Mr Tamblyn, John Harrison, and Mr Pattison, each of whom were impressive witnesses. Christopher worked hard, and for long hours, for very little reward, in performing that work. The third factor is that, as a result of his devotion to the farm, Christopher has not accumulated any assets of any substance. He has lived in quite straitened circumstances.

349 Mr Waddell on behalf of the plaintiffs submitted that the further provision to be made in favour of his clients should be in the order of $800,000 in favour of Louise, $700,000 in favour of Sue, and $300,000 in favour of Kathryn. In my view, if a court were to order provision in favour of the plaintiffs in anything like the amounts contended for by Mr Waddell, the court would not only be flagrantly disregarding the freedom of testimony disposition of Kenneth, but it would also, thereby, contravene Christopher's proper entitlement to the primary claim on his father's bounty.

350 Taking those matters into account, it is clear that Louise's current situation is the most needy of all the three plaintiffs. She has managed to accumulate a reasonable asset base. However, the loss of her husband, and the severe disability of her younger son, are such that I consider that the duty of a wise and just testator would be to make some further provision for her, in order to provide both herself, and, ultimately, Hamish, with a measure of security. Given the nature of the estate, such a provision would consist of Louise being granted a 15 percent interest, as tenant in common, in the share which Kenneth held in the Hopefield property and the attached water rights.

351 Sue has a larger income than Louise, but she has significantly less assets. Her children are healthy, but she has sole responsibility for them. The fact that she is not working full time is not, as Mr Shepherd submits, purely a matter of "choice", but, rather, it is the product of the need for her to balance her responsibilities to her children with the need to earn a sufficient income to maintain herself and her children. In those circumstances, in my view, a court would order further provision for Sue, on a Part IV application, consisting of a 10 percent interest, as tenant in common, in the share of Kenneth's estate in the Hopefield property and the attached water rights.

352 The financial position of Kathryn is significantly healthier. Her husband is earning a good income, and Kathryn and her husband have a reasonably good asset base. Nevertheless, her children are young, and her husband does suffer from a congenital heart condition. In those circumstances, I would consider that a court, on a Part IV application made on behalf of Kathryn, would make an order, the effect of which would be that she would have a 5 percent interest, as tenant in common, in the share of Kenneth's estate in the Hopefield property and the water rights.

353 I observe that each of the orders for further provision to be made in favour of the three plaintiffs would have been subject to them undertaking a proportionate responsibility for the debts secured over the Hopefield property, and for which Christopher is currently liable. I shall deal, again, with this issue when discussing the appropriate orders to be made on the basis of a claim in proprietary estoppel. However, as discussed with counsel, before any final orders are pronounced in this case, it would be necessary for the National Australia Bank to have a right to be heard, in order that its rights, under the existing mortgages, be appropriately protected.

354 The conclusions of fact, which I have reached so far, may be summarised as follows:

(1) The defendant made the following representations to the plaintiffs between April 2007 and 29 July 2008, namely:

(a) In April 2007, after the death of Michael Skirka, Christopher stated to the plaintiffs, and to Paul Somerville, that he would make provision for Louise and her sons, and that he would also make provision for each of his sisters and their children. In making representations to Paul Somerville, I am satisfied that Christopher understood that Paul would repeat those representations to his wife, Kathryn, and that it was likely that she, in turn, would inform Louise and Sue about them.

(b) In January 2008, Christopher told Sue, at the property at Sullivans Road, Strathfieldsaye, that when the Hopefield farm was split up, he would set up a trust, from their father's estate, for the benefit of their family members.

(c) Subsequently, during 2008, Christopher, in conversations with Sue, confirmed that he would make provision for his sisters from the estate of his father.

(2) In making the representations to Sue, summarised in paragraph 1(b) and (c) above, Christopher knew and intended that Sue would convey the substance of those promises to Kathryn and Louise.

(3) At the time at which he made those promises, Christopher knew that the plaintiffs were contemplating bringing proceedings in respect of their father's will.

(4) The promises played a material role in inducing the plaintiffs not to issue proceedings in respect of their father's estate before the distribution of his estate was completed on 29 July 2008.

(5) If the plaintiffs had sought to issue proceedings, under Part IV of the Act, between April 2007 and July 2008 -

(a) they would have each succeeded on an application, under s 99 of the Act, for an extension of time within which to bring such a proceeding; and

(b) they would have each succeeded in such a proceeding, and would have been granted the relief, to which I have referred above.

(6) Thus, as a consequence of relying on the promises made to them by Christopher between April 2007 and July 2008, the plaintiffs have each lost their entitlement to provision from Kenneth's estate pursuant to Part IV of the Act.

(7) In his conversation with Sue on 25 October 2009, Christopher resiled from the promises, which I found he made to his sisters.

355 The question, which arises, is whether, based on those findings, the plaintiffs have made out their entitlement for relief, in equity, based on the principles of proprietary estoppel.

356 Mr Waddell submitted that the promises, claimed to be made by the defendant to the plaintiffs - including those which I have found were made - constituted promises by Christopher to confer on the plaintiffs an interest in their father's estate, which was sufficient to establish a claim based on the doctrine of proprietary estoppel. He submitted that, in reliance on those promises, his clients had foregone their rights under Part IV of the Act. Accordingly, it would be unconscionable for the defendant to retain his beneficial interest in the Hopefield property and the water rights, to the exclusion of the entitlements which the plaintiffs would have had on an application made by them under Part IV of the Act.

357 In response, Mr Shepherd submitted that, if I were to find Christopher made the promises alleged by the plaintiffs, nevertheless the plaintiffs were not entitled to relief on the basis of the principles relating to proprietary estoppel, for the following reasons:

(1) Any such promises made by the defendant were ambiguous and lacked "quality". In particular, the promises made by Christopher were so uncertain that it would not be possible for the court to determine what remedy would be appropriate to satisfy the equity. Mr Shepherd submitted that it is not unconscionable for a defendant to make promises, which are so indefinite or inconclusive, that the promisee does not have any reasonable expectation arising from them.

(2) In any event, the promises, which were made by the defendant, were promises to make some provision for the plaintiffs, if and when the property was either sold or divided. Neither of those events had arisen.

(3) At the time at which the defendant made the promises, he was the executor of the estate. His duty was to uphold the executor's will. It was not for the defendant to give away the estate in terms which were inconsistent with the dispositions under Kenneth's will. Accordingly, at the time at which the defendant made the promises, it was not possible for him to fulfil them.

(4) At the time at which the defendant made the promises, the plaintiffs did not inform him of the nature of the legal action which they were then contemplating against him. Thus, it was submitted, the defendant could not be aware of the nature or extent of the detriment, which was suffered by the plaintiffs by acting in reliance on the promises made to them by the defendant. It would be harsh and inequitable to require the defendant to account to the plaintiffs for the entitlements under s 91 of the Act, unless the plaintiffs had "brought it home" to the defendant, in discussions with him, that they would make such a claim, if he did not adhere to his promises.

358 Mr Shepherd also relied, in argument, on laches and acquiescence. However, he accepted that those defences would only apply, if the plaintiffs had known, before 29 July 2008, that the defendant was not intending to make provision for them out of their father's estate. On the facts as I have found them, the defendant did not resile from the promises, which he made to the plaintiffs, until 25 October 2009. Indeed, the plaintiffs' claims, based on proprietary estoppel, would only be made out, if the plaintiffs were able to prove (as I am satisfied that they have) that the representations, made by the defendant to them, caused them not to issue proceedings, under Part IV of the Act, before the estate of Kenneth was finally distributed on 29 July 2008.

359 At one stage, Mr Shepherd also sought to rely, by way of defence, on s 99 of the Act, namely, that no application under Part IV of the Act may be made after final distribution of the estate. He also called in aid s 99A(3), which provides that no action shall lie against a personal representative of a deceased by reason of his having distributed the estate of the deceased, if the distribution was made after the expiration of six months from the grant of probate, and without notice of any intended application under Part IV of the Act.

360 I found Mr Shepherd's submissions, in this respect, to be somewhat confused. The central point of the plaintiffs' case is that, by reason of the promises made to them by the defendant, they did not commence proceedings, under Part IV, before the distribution of the estate of Kenneth on 29 July 2008. As a result, they are now precluded, by s 99, from making such an application. It is in that way that the plaintiffs have acted to their detriment. The plaintiffs' claim is not a claim for further provision under Part IV of the Act. Rather, it is a claim, in equity, to address the detriment suffered by them as a consequence of their relying on the promises made to them by the defendant. That detriment arose because of the operation of s 99 of the Act. At the time at which the defendant renounced his promises to them, in October 2009, s 99 of the Act precluded them from seeking the relief, which they had been induced not to pursue as a consequence of relying on the promises made to them by the defendant. Accordingly, the reliance by Mr Shepherd on s 99 and s 99A of the Act is misplaced.

361 The question which I must decide, then, is whether, on the facts which I have found, the plaintiffs have made out their claim for relief, in equity, based on the doctrine of proprietary estoppel.

362 For the purposes of determining that question, it is not necessary for me to dwell, at length, on the principles relating to proprietary estoppel. That doctrine originated in a number of nineteenth century cases, and, in particular, Dillwyn v Llewelyn[29], Ramsden v Dyson & Anor[30] and Plimmer & Anor v The City of Wellington[31]. In those cases, the claimant, invoking the estoppel, had incurred expenditure on improvements to land owned by the other party (the representor) in response to an expectation, fostered by the representor, that the claimant either did, or would, thereby derive an interest in the land. In such cases, the court, applying equitable principles, granted relief requiring the representor to give effect to the expectation engendered by him. The classic statement of the principle was contained in the dissenting judgment of Lord Kingsdown in Ramsden v Dyson & Anor[32]:

"If a man, under a verbal agreement with a landlord for a certain interest in land, or, what amounts to the same thing, under an expectation created or encouraged by the landlord that he shall have a certain interest, takes possession of such land, with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord and without objection by him, lays out money upon the land, a Court of Equity will compel the landlord to give effect to such promise or expectation. ... If at the hearing of the cause, there appears to be such uncertainty as to the particular terms of the contract as might prevent a Court of Equity from giving relief if the contract had been in writing, but there had been no expenditure, a Court of Equity will nevertheless, in the case which is above stated, interfere in order to prevent fraud ... ."

363 Thus stated, the principles of proprietary estoppel assumed all the hallmarks of a cause of action in its own right. There have been some suggestions, particularly by Mason CJ and Deane J, in the High Court, that the principles of common law estoppel, promissory estoppel, and proprietary estoppel, are now so uniform that they should jointly constitute an "overarching" doctrine of estoppel.[33] However, that question has not yet been settled by the High Court.[34] There is also a division of opinion, in the judgments of the High Court, as to whether promissory estoppel (as distinct from proprietary estoppel) constitutes itself an independent cause of action or whether, alternatively, it is a doctrine by which one party is estopped from denying an element of a cause of action relied on by a plaintiff.[35] It is not necessary for me to enter into that debate. I mention it because, in the course of the trial, I pressed Mr Waddell to identify, precisely, the nature of the claim made on behalf of his clients. Mr Waddell, in response, stated that the plaintiffs relied solely on the principles relating to proprietary estoppel. He specifically disclaimed reliance on any broader rights arising from the principles of promissory estoppel.

364 As I have stated, the earlier authorities relating to proprietary estoppel generally concerned cases, in which one party had undertaken expenditure on improvements to land based on an expectation, fostered by the owner of the land, that the party making the expenditure either did, or would, thereby derive an interest in the land. However, the doctrine of proprietary estoppel has since then evolved, and it has been applied to a broader range of cases than those in which the party, relying on it, has incurred expense on land owned by another. In particular, there have been a number of cases, in which the principles of proprietary estoppel have been held to apply, where a party, relying on an assurance, by a property owner, of an interest in the owner's property, has thereby acted to his or her detriment. That approach may be found both in the Australian and the English authorities.

365 In Donis & Ors v Donis[36], the defendants made statements to the plaintiff, their daughter in law, both before and after her marriage to their son, that she and their son would be registered as proprietors on titles of certain property. The trial judge found that the plaintiff had relied on those statements, to her detriment, by agreeing to marry the son, by allowing herself to become pregnant sooner than would otherwise be the case, by moving into the property, and by spending money and effort improving it. The Court of Appeal upheld the decision of the trial judge, who had found in favour of the plaintiff on the basis of that proprietary estoppel. It is clear, from the lead judgment of Nettle JA, that the court considered that the plaintiff's agreement to marry the defendants' son, the fact that she became pregnant earlier than otherwise would have been the case, and the fact that she thereby gave up her teaching career sooner than she otherwise would have done, each qualified as relevant acts of detriment, which were material to the establishment by her of the claim in proprietary estoppel.[37]

366 In Delaforce v Simpson-Cook[38], the plaintiff made a claim against the estate of her former husband, based on proprietary estoppel, that she be entitled to the former matrimonial home, to which the deceased held the title. At the time at which the plaintiff separated from her husband, she had agreed with him that he should retain the home for his lifetime, on the condition that he would bequeath it to her in his will. In accordance with that agreement, the plaintiff did not seek orders, in the Family Court proceeding between them, for relief in respect of the property. The consent orders signed by the parties, and made by the Family Court, contained a notation to the effect that the parties had agreed that the husband would bequeath the property to the plaintiff in his will. Shortly before the husband's death, he made a new will, revoking his previous wills, and leaving the whole of the residue of his estate to a cousin in London. The Court of Appeal upheld the decision by the trial judge that the plaintiff was entitled to the property on the basis of the doctrine of proprietary estoppel. Handley AJA described that doctrine in the following terms:

"The proprietary estoppel upheld by the Judge was an estoppel by encouragement. Such an estoppel comes into existence when an owner of property has encouraged another to alter his or her position in the expectation of obtaining a proprietary interest and that other, in reliance on the expectation created or encouraged by the property owner, has changed his or her position to their detriment. If these matters are established equity may compel the owner to give effect to that expectation in whole or in part."[39]

367 A similar approach is to be found in the English authorities. In Jennings v Rice & Ors[40], the plaintiff was held by the Court of Appeal to be entitled to rely on proprietary estoppel, where, for a number of years, he had provided personal assistance to an elderly widow, on the strength of promises made by her to him that he would be bequeathed part or all of her property on her death.

368 A similar claim was upheld, by Mr Edward Nugee QC, sitting as a High Court judge in the Chancery Division, in Re Basham deceased[41]. In that case, the plaintiff, who was the stepdaughter of Mr Basham, lived near Mr Basham, and, for a substantial time, provided a number of unpaid services to him. In response, Basham gave the plaintiff assurances that she would inherit his house, and other property, in his will. Basham died intestate. Based on the principles of proprietary estoppel, the court upheld the plaintiff's claim for an order for the vesting of the property of the deceased in her absolutely. Subsequently, the decision in Re Basham was approved by the English Court of Appeal in Gillett v Holt[42].

369 Thus, as in the case of promissory estoppel, proprietary estoppel is the doctrine by which a court of equity intervenes to redress the unconscionable conduct of a promissor departing from a promise, which has induced another to change his or her position to their detriment. In Donis & Ors v Donis[43], Nettle JA expressed the principle in the following terms:

"The underlying principle is that conduct of the promissor in engaging the complainant to change his or her position to their detriment on the footing that the promised property will be theirs, when acted upon by the complainant, creates an equity which binds the promissor to make good the expectation. ... The equity which binds the promissor to adhere to his promise inheres in the detriment which the promisee suffers by acting in reliance upon the promise."[44]

370 In that way, proprietary estoppel has evolved in such a way as to share a number of characteristics in common with promissory estoppel. However, it does have two characteristics which, in the current state of authorities, differentiate it from promissory estoppel. First, in the case of promissory estoppel, the relief fashioned by the court is principally directed to redressing the detriment arising from the change of position made by the promissor in reliance on the promise.[45] On the other hand, where a case of proprietary estoppel is made out, the promisee is prima facie entitled to have the promissor held to the promise.[46] Secondly, while, as I have stated, it is still an open question, whether the doctrine of promissory estoppel constitutes a foundation of legal rights independently of any other cause of action, on the other hand, where the elements of proprietary estoppel are made out, a court of equity will intervene, without considering whether the estoppel itself is an adjunct to another established cause of action. That much is apparent, not only from the earlier cases of Dillwyn v Llewelyn, Ramsden v Dyson, and Plimmer v The City of Wellington, but, also, from the High Court judgment in Giumelli & Anor v Giumelli, and the decisions of the Court of Appeal of Victoria in Donis & Ors v Donis, and Accurate Financial Consultants Pty Ltd & Anor v Koko Black Pty Ltd & Ors[47].

371 Nevertheless, notwithstanding those differences, it is clear from the authorities that, in order to invoke the intervention of equity based on proprietary estoppel, the plaintiffs, in the present case, must establish the following:[48]

(1) That the defendant made to them promises that he would confer on them an interest in property.[49]

(2) That the plaintiffs acted in reliance on those promises in refraining, between April 2007 and July 2008, from bringing proceedings for provision from their father's estate.

(3) That the plaintiffs acted reasonably in so relying on the promises made to them by the defendant.[50]

(4) That the defendant knew or intended that the plaintiffs would rely on his promises and would thereby refrain from instituting legal proceedings for provision out of their father's estate.

(5) That the plaintiffs have suffered detriment as a consequence of the failure by the defendant to adhere to his promise.

372 In the present case, the representations and promises, which I have found that Christopher made to the plaintiffs between April 2007 and July 2008, were to the effect that he would make provision for them (and their children) from that part of the estate of Kenneth Harrison, which was bequeathed to him, namely, Kenneth's interest in the Hopefield property and its associated water rights. As a result of those promises, the plaintiffs each expected that they would obtain a share of, or an interest in, that property. In accordance with the above authorities, it follows that the promises, and the expectations engendered by them, were of a proprietary nature, which bring this case within the principles of the doctrine of proprietary estoppel.

373 Mr Shepherd, on behalf of the defendant, submitted that the promises by the defendant to the plaintiffs lacked sufficient "quality" to constitute the basis for a claim in proprietary estoppel. He submitted that they were too vague and ambiguous. In particular, he pointed to the lack of any specification by Christopher as to the nature of the interest, which he would provide to his sisters in the property, or its dimension. The promises varied. On some occasions, Christopher promised to provide for his sisters out of the estate; on other occasions, he stated that he would create trusts for the grandchildren. Thus, Mr Shepherd submitted that the promises made by Christopher were so devoid of specificity, as to be an insufficient basis for a claim based on proprietary estoppel.

374 It is now well established that a promise may form an appropriate basis for a claim in proprietary estoppel, notwithstanding that it lacks sufficient certainty or specificity to satisfy the requirements of an enforceable contract at law. Indeed, in the passage from the speech of Lord Kingsdown in Ramsden v Dyson, which I have quoted above, his Lordship specifically observed that, while a promise may be insufficiently clear at law to be the foundation of an enforceable contract, nonetheless, if it is acted on by the promisee to his or her detriment, equity will enforce it.

375 That principle has been applied by the courts in a number of cases. In Flinn v Flinn[51], Brooking JA, having examined the authorities, relating to this aspect of proprietary estoppel, in some detail, concluded[52]:

"As the review of the authorities over the last two hundred years shows, uncertainty preventing the creation of a contract has never been regarded as necessarily preventing the beneficial intervention of equity. Time and again an equity has been held to exist when no contract had arisen, the court often going a long way to giving effect to what the law of contract would ignore as an impossibly loose arrangement."

376 In that case, the plaintiff relied on two sets of promises, made, in 1988, and subsequently in 1993, to him and his wife by the defendants, who were his uncle and aunt. The first set of promises, in 1988, were to the effect that, if the plaintiff and his wife moved to and worked on the defendants' farm, the defendants would, by their wills, make a gift to the plaintiffs of an interest in the farm property.[53] Brooking JA held that, notwithstanding that the promise made by the defendants, in 1988, was of an unspecified interest in the farm, it was not too uncertain to found a proprietary estoppel.[54]

377 The question of the uncertainty of a promise, for the purposes of estoppel, arose again directly in the decision of the Court of Appeal in Accurate Financial Consultants Pty Ltd & Anor v Koko Black Pty Ltd & Ors[55]. In that case, the plaintiffs were minority unit holders in a unit trust, which had been formed to operate a business involved in the manufacture and sale of high quality specialty chocolates throughout Victoria. The plaintiffs sought an injunction to restrain the majority unit holder, and founder of the business, from acting on notices for the compulsory redemption of the units. The trial judge had found that the plaintiffs had invested in the business, and became unit holders in the unit trust, on the basis of an assumption or expectation that they would be entitled to remain as unit holders "for the long term". His Honour also held that that assumption or expectation had been induced by representations made to the unit holders by the majority unit holder, on behalf of the trustee. However, his Honour dismissed the plaintiff's claim for a permanent injunction. In doing so, he relied on a statement of Lord Denning MR in Woodhouse AC Israel Koko Ltd v Nigerian Produce Marketing Co Ltd[56], that estoppel should not be based on an ambiguity, and that "... to work an estoppel, the representation must be clear and unequivocal".

378 The Court of Appeal allowed the appeal of the plaintiff. Dodds-Streeton JA (with whom Ashley JA and J Forrest AJA agreed) considered, in some detail, a number of authorities, which counsel had not brought to the attention of the trial judge. Her Honour stated:

"134 ... from an early stage, a representation in estoppel was to be assessed by how it would be reasonably understood by the addressee in the context of the surrounding circumstances.

1. Equity does not shrink from ascribing meaning to a representation and mere imprecision or loose definition will not preclude a remedy for unconscionability, at which proprietary estoppel is ultimately directed.
2. The relevant authorities exemplify a wide variety of apparently vague, imprecise and incomplete representations which have been construed in context and given effect."

379 Later, having reviewed the authorities at length, Dodds-Streeton JA further stated:

"177 An analysis of the relevant authorities, which were not cited to his Honour, demonstrates that the statement of Lord Denning MR, on which the trial judge particularly relied, arose from a relatively narrow comparative context and is, in isolation, a potentially misleading articulation of equity's characteristically liberal approach to the construction of representations when it is necessary to prevent unconscionable conduct.

1. A representation which is insufficiently certain or complete to create a contract may found proprietary estoppel. Where necessary to inhibit unconscionability, equity will construe a representation robustly in context, to determine its meaning as reasonably understood by the addressee. In my opinion, the standard of certainty, clarity and completeness required of the representation cannot sensibly be determined in isolation from other elements of proprietary estoppel in the circumstances of each particular case. Moreover, ambiguity and indeterminacy generated by the representor in the context of unconscionable conduct should not confer immunity from equity's 'long arm'."

380 In a similar vein, Handley AJA, in Delaforce v Simpson-Cook[57] observed that a proprietary estoppel by encouragement may be established "... where the conduct of the party estopped did not define the expectation". His Honour noted that the quality of the relevant assurances may, however, be relevant to the assessment of the issue of reliance and also to the issue of detriment.

381 A similar approach is also evident in the English authorities. In Jennings v Rice & Ors[58], the plaintiff, over a number of years, had provided gratuitous assistance to Mrs Royle, an elderly widow, who died without children and wholly intestate. Over those years, as found by the trial judge, Mrs Royle made a number of remarks to the plaintiff to the effect that he would receive all, or part of, Mrs Royle's property on her death. The trial judge rejected the plaintiff's claims under the Inheritance Act 1975 and in contract, but found for the plaintiff under the doctrine of proprietary estoppel. The judge ordered the estate of Mrs Royle to pay £200,000 to the plaintiff, apparently as a sum which was equivalent to the cost of full time nursing care for Mrs Royle. The judge considered that the "quality" of the assurance, given by Mrs Royle, affected not only the questions of the plaintiff's belief, but also questions of reliance, detriment and unconscionability.

382 The plaintiff appealed from that decision, contending that, on the basis of the findings of the trial judge, he should have been awarded the whole of Mrs Royle's estate, or alternatively a sum equal to its value. The respondent did not contend, on the appeal, that the judge was wrong to conclude that the plaintiff was entitled to an award of £200,000 pursuant to the doctrine of proprietary estoppel. The Court of Appeal dismissed the plaintiff's appeal. Robert Walker LJ, (with whom Mantell LJ agreed) stated the applicable principles as follows:

"46. ... (as the judge's findings in this case vividly illustrate) the claimant's expectations may have been formed on the basis of vague and inconsistent assurances. The judge said of Mrs Royle that she

'... was prone to saying different things at different times and, perhaps deliberately, couched her promises in non-specific terms'.

1. If the claimant's expectations are uncertain (as will be the case with many honest claimants) then their specific vindication cannot be the appropriate test. A similar problem arises if the court, although satisfied that the claimant has a genuine claim, is not satisfied that the high level of the claimant's expectations is fairly derived from his deceased patron's assurances, which may have justified only a lower level of expectation. In such cases the court may still take the claimant's expectations (or the upper end of any range of expectations) as a starting point, but unless constrained by authority I would regard it as no more than a starting point.

1. It is no coincidence that ... statement(s) of principle [in the authorities] refer to satisfying the equity (rather than satisfying, or vindicating, the claimant's expectations). The equity arises not from the claimant's expectations alone, but from the combination of expectations, detrimental reliance, and the unconscionableness of allowing the benefactor (or the deceased benefactor's estate) to go back on the assurances. ... So with proprietary estoppel the defendant is charged with satisfying the equity which has arisen from the whole sequence of events."

383 In Thorner v Major & Ors[59], the claimant had worked full time on the farm of his father's cousin for little financial reward. He sought a declaration against the defendants, who were the personal representatives of the deceased cousin, that they held his estate on trust for the claimant. The claimant's case was based on proprietary estoppel. The claimant was not able to point to any express promise, made by the cousin, that he would be entitled to the cousin's property on his decease. However, the trial judge noted that the cousin was a taciturn man, who was not given to talking in a direct manner. In a number of interchanges with the claimant, he had induced the claimant to understand that, on his death, the claimant would be entitled to his property. Accordingly, the trial judge upheld the claimant's case on the basis of proprietary estoppel. The Court of Appeal allowed the defendant's appeal, on the grounds that the cousin's statements did not amount to a sufficiently clear and unequivocal representation by the cousin, upon which he had intended the claimant to rely. On further appeal, the House of Lords upheld the appeal of the claimant, and restored the decision of the trial judge. In doing so, the members of the House of Lords emphasised the importance of construing the assurances or promises, relied upon, in the context in which they were made.[60] Lord Neuberger stated:

"... it would be quite wrong to be unrealistically rigorous when applying the 'clear and unambiguous' test. The court should not search for ambiguity or uncertainty, but should assess the question of clarity and certainty practically and sensibly as well as contextually. ... At least normally, it is sufficient for the person invoking the estoppel to establish that he reasonably understood the statement or action to be an assurance on which he could rely."[61]

384 Thus, it is clear from the authorities that, in order to constitute the basis of a proprietary estoppel, a promise, and the expectations resulting from it, may fall substantially short of the precision which is required to constitute the basis of an enforceable contract at law. Rather, the question of the uncertainty or ambiguity of a promise is relevant to issues relating to reliance, the reasonableness of reliance, the nature of the expectations of the promisee, the awareness of the promissor of the reliance of the promisee, and the nature of the detriment sustained by the promisee, if the promise is not adhered to. At each of those levels, the terms in which the promise was expressed, and the specificity with which it was defined, may bear on the question whether, in all the circumstances, it would be unconscionable for the defendant not to adhere to the promise found by the court.

385 In particular, the uncertainty or vagueness of a particular promise may affect the question whether, in fact, the promisee relied on it, and, whether the expectations of the promisee were truly aroused by the promise. A promise may be so vague, indeterminate or inconsistent that it would be unreasonable for the promisee to rely on it. Alternatively, the promise may be expressed in such indefinite terms that the promissor could not be expected to appreciate that the promisee was relying on it to his or her detriment. In addition, the lack of precision of a promise may impact on the measure of equity requisite to address and vindicate the unconscionable departure from the promise by the promissor.[62]

386 In addressing this aspect of the case, it is important to note, first, that the promises, which I have found that Christopher made to the plaintiffs, related to specific property, namely, the interest in the Hopefield property, and the associated water rights, which were bequeathed to Christopher by Kenneth. The provision, which he promised to make for the plaintiffs, was either expressly, or by necessary implication, stated to be provision which would be made out of that property.

387 Further, in assessing the "quality" of the promises made by Christopher to his sisters, and the reasonableness of their reliance on those promises, it is important to bear in mind the context in which they were made.

388 The plaintiffs and the defendant had a long, shared background as a close and mutually supportive family. The plaintiffs trusted their brother, as members of a close family should. By April 2007, Kathryn and Louise were contemplating taking legal action in respect of Kenneth's estate. However, it would seem that the tragic death of Michael Skirka intervened. Notwithstanding his then estrangement from his two younger sisters, Christopher hastened to the side of Louise at the time of her distress. The various promises, which Christopher made to the plaintiffs, in April 2007, in Hobart, were not made in isolation from each other. Rather, they were made in the course of an emotional family gathering, in which the primary concern, particularly of Christopher, Sue, Kathryn and Paul Somerville, was the plight of Louise as a result of her sudden and tragic loss of her husband.

389 Some of the promises, made by Christopher at that time, were particularly vague and indefinite. For example, Louise's account of them was that Christopher promised to help to "provide" for her and her sons. On the other hand, Christopher spoke to Sue and to Kathryn, separately, about setting up trusts for the children of his siblings, and, presumably, his own children. During their long drive to Rosebery, he told Paul Somerville that he would provide for Louise, and that, when matters on the farm were sorted, he would make provision for all his sisters. The totality of the statements made by Christopher, taken together, constituted, in my view, a representation by him that he would make provision for his sisters, and particularly their families, out of his share of his father's estate. While the promises were couched in quite general terms, nevertheless, by referring to the concept of a trust, Christopher demonstrated that he was giving serious consideration to the means by which he would make that provision for his sisters and their families. Certainly, in the context in which the promises were made, it is clear that Christopher was undertaking to make provision of some substance for his siblings and their families.

390 The same observations apply to the representation, which I have found Christopher made to Sue in her premises in Sullivans Road, Strathfieldsaye in January 2008. In that conversation, as I have found, Christopher explained to Sue that he would set up a trust, from his interest in the farm, and from which all family members would benefit. I am also satisfied that, on that occasion, Christopher represented to Sue that, in that way, he would be able to assist Eliza financially with her university fees. In that conversation, Christopher was, to an extent, addressing the nature of the provision, which he would make for his siblings, with a greater degree of precision, particularly in respect of the form by which the provision would be provided for his sisters. The fact that Christopher spoke, specifically, in terms of a trust, was calculated to convey that Christopher had, at the least, turned his mind to the means by which that provision would be made.

391 The fact that Christopher did not specify the dimension of that provision, or the precise nature of it, would not disqualify the promises from being sufficient for the purposes of proprietary estoppel.[63] In that respect, the promises made by Christopher were no less specific than the first promise made to the plaintiff in Flinn v Flinn, which I have discussed above, or the promises, which formed the basis of enforceable rights under the doctrine of proprietary estoppel in Jennings v Rice & Ors.

392 It is important to remember that the promises, in this case, were promises made by a brother, to his sisters, who trusted him. By stating that the provision, which he would make, would be in the form of a trust, Christopher conveyed that the promises, made by him, were not the product of a moment's idle thought. Although Christopher did not specify the amount of the provision, which he would make, clearly he did not intend that provision would be nominal or derisory. Rather, in the context in which they were made, the promises by Christopher would have been reasonably understood to be promises of a fair and reasonable provision, having regard to the size and nature of Kenneth's estate, and the respective circumstances of the plaintiffs and the defendant. In those circumstances, I am satisfied that it was reasonable for the plaintiffs to be induced by the promises, which I have found that the defendant made to them, so as to refrain from commencing legal proceedings in respect of Kenneth's estate, before they were precluded from doing so, as a result of the final distribution of the estate on 29 July 2008.

393 I therefore reject the submission, made by Mr Shepherd on behalf of the defendant, that the promises made by the defendant lack sufficient "quality" for the purposes of proprietary estoppel.

394 Mr Shepherd also submitted that the promises, which were made by the defendant, were to make provision for the plaintiffs, if and when the property was either sold or divided. Neither of those events had occurred. Accordingly, he submitted there has been no departure by Christopher from the promises made by him.

395 There are two answers to that submission. First, contrary to the submission of Mr Shepherd, not all the promises, made by Christopher, were expressed to be conditional upon the farm being sold or divided. Certainly, the assurances, which he gave to Paul Somerville in the road trip to Rosebery, were expressed to be subject to that condition. However, the statements which he made to Kathryn and Sue in Hobart, and the statements which he made to Sue at the Sullivans Road property in January 2008, were not expressed to be subject to that condition.

396 Secondly, on 25 October 2009 Christopher made it plain to Sue that he would not be making any provision for her, or her sisters, from the farm. I am satisfied that, when he spoke to Sue, he well understood that she would relate, what he told her, to Kathryn and Louise. In that conversation, Christopher made it plain that he would not, in any circumstances, be providing for his sisters from his interest in the farm. Subsequently, he continued to deny that he made the promises, which are the foundation of the plaintiffs' claim in this case. In those circumstances, the defendant has unequivocally evinced an intention not to adhere to the promises which he made to his sisters, and on the basis of which they desisted from seeking relief under Part IV of the Act, before the final distribution of the estate. Accordingly, the plaintiffs are not precluded from seeking relief under proprietary estoppel, on the basis that the promises made to them by Christopher were subject to conditions, which have not yet been fulfilled.

397 The next submission made by Mr Shepherd was that, at the time at which the defendant made the promises, he was the executor of the estate of Kenneth Harrison. As such, his duty was to uphold the executor's will, and it was not for him to give away the estate in terms which were inconsistent with the provisions of Kenneth's will. The short answer to that proposition is that, at that time, Christopher was also the primary beneficiary under Kenneth's will. Although the property had not yet been distributed to him under the will, nevertheless it is clear that he regarded himself as the then owner of his father's share in the Hopefield farm. Indeed, the letter, which his solicitors wrote to Ian Harrison in December 2006, described him as a joint owner of the farm. The promises, which he gave to his sisters at that time, were made in his capacity as the heir to his father's interest in the Hopefield property.

398 Mr Shepherd further argued that, at the time at which Christopher made the promises, the plaintiffs did not inform him as to the legal action, which they were then contemplating against him. In my view, that point does not advance the case of the defendant. First, it was not necessary for the plaintiffs to inform Christopher of the precise nature of the legal action, which they were contemplating instituting against him. It was sufficient for Christopher to know and understand that, in general terms, by making the promises, he might thereby induce them not to bring proceedings in relation to their father's estate. Further, and in any event, in his evidence, Christopher stated that, in 1998, he, together with Andrew and Ian Harrison, had obtained specific legal advice as to the rights of other persons to challenge their fathers' wills. In those circumstances, when Christopher made the promises to the plaintiffs, he well understood the nature of the rights which he was inducing them to forego.

399 Thus, for the reasons which I set out above, I am satisfied the representations, which I have found that Christopher made to his sisters between April 2007 and July 2008, were promises to the effect that he would confer on them an interest in the property, which he had inherited from Kenneth's estate, namely, Kenneth's share of the Hopefield farm and the attached water rights. As I have already stated, I am satisfied that the plaintiffs each were induced by those promises not to make an application for provision under Part IV of the Act, and that they acted reasonably in relying on the promises in that way. I have concluded that, if they had made such an application between April 2007 and July 2008, they would have been granted an extension of time within which to make that application. Further, I am satisfied that they would each have succeeded in such a proceeding, so that orders would have been made in their favour for provision out of their father's estate. Thus, as a consequence of Christopher resiling from the promises, which I have found he made to the plaintiffs, they have suffered a detriment, consisting of the loss by them of their entitlements to provision from Kenneth's estate pursuant to Part IV of the Act.

400 Accordingly, I am satisfied that each of the plaintiffs have established a right to relief, in equity, based on the principles of proprietary estoppel.

401 The plaintiffs do not seek, by way of relief, enforcement of the promises given to them by the defendant, or the expectation created by them. As I have already observed, in cases of proprietary estoppel, the prima facie position is that the court, ordinarily, enforces the expectation arising from the relevant promises or representations.[64] In each case, the relief is primarily designed to redress the effect of the unconscionable conduct of the defendant in departing from the promises on which the plaintiff has relied. In most cases of proprietary estoppel, that redress is most effectively provided by enforcement of the promise and the expectation arising from it. However, it is clear from the authorities that the prima facie approach, of enforcing the expectation, is not an inflexible rule.[65] In particular, as Robert Walker LJ pointed out in the passage from his judgment in Jennings v Rice[66], which I have set out above, enforcement of the expectation may not be appropriate, where the expectation is uncertain or imprecise.

402 In the present case, the relief, which is sought by the plaintiffs, is the provision which, I am satisfied, would have been made in their favour, if they had made an application for relief under Part IV of the Act. That relief is, on the findings which I have made, relief which would entitle each of them to a proportionate part of the interest held by the defendant in the Hopefield farm and the associated water rights.

403 It is, perhaps, no coincidence that the relief, which they would have obtained under Part IV of the Act, would not be inconsistent with the type of provision which Christopher was, in a broad sense, promising to make for the plaintiffs out of Kenneth's estate. Ultimately, the gravamen of Christopher's promises was that he would make proper provision for his sisters, out of the estate of his father. As I have already noted, the substance of the promise must be understood in the context of a family setting, in which the parties had some appreciation of their father's interest in Hopefield, of Christopher's contribution to it, and of the respective financial means and needs of the plaintiffs and Christopher. In the absence of specification by Christopher of the amount of provision, promised by him to the plaintiffs, it might be inferred that he had intended, and had conveyed to the plaintiffs, that he would make reasonable provision for them from their father's estate taking into account their respective circumstances.[67] In that way, the measure of provision, to which the plaintiffs would have been entitled under s 91(1) of the Act, is by no means inconsistent with the type of provision, which, it was envisaged, would have been made in favour of the plaintiffs, if Christopher had adhered to his promises.

404 Thus, I am satisfied that the nature of the relief, sought by the plaintiffs in this case, would not be unfairly disproportionate to that which the plaintiffs would have obtained, if Christopher had adhered to the promises which he made to them between April 2007 and July 2008. An advantage of defining the relief in terms of the detriment sustained by the plaintiffs is that, in that way, the court has an appropriate framework within which to formulate the relief. Furthermore, the type of provision, which is made under s 91 of the Act, has the advantage of doing justice to the defendant, by preserving his rightful entitlement under his father's estate, while at the same time only interfering with the testator's freedom of testamentary disposition to the extent to which it is necessary in order to ensure that justice is done to each of his three daughters.

405 Based on that analysis, I am satisfied that the appropriate relief in this case, therefore, would be for orders to be made in favour of the plaintiffs, whereby Louise would derive a 15 percent interest, Sue would derive a 10 percent interest, and Kathryn would derive a 5 percent interest, as tenants in common, of the interest held by Christopher in the Hopefield property, and in the water rights also held by Christopher. As I have already foreshadowed, the making of such orders in favour of the plaintiffs would need to take into account the legitimate interests of third parties, including the National Australia Bank. In addition, by assuming rights to the Hopefield property, each of the plaintiffs will be required to assume, or alternatively to indemnify Christopher in respect of, a proportionate share of the burden of the debt owed to the National Australia Bank.

406 In final submissions, counsel suggested that I should not proceed to specify the precise terms of the orders which should be made, if I were to find in favour of the plaintiffs in this case. As I have indicated, it would not be possible for me to do so, without, first, having heard from the National Australia Bank. I shall therefore defer from pronouncing final orders in the case until counsel, the National Australia Bank, and any other interested party, has had the opportunity to be heard in relation to the formulation of such orders.

407 For the reasons which I have set out above, I have reached the following conclusions:

(1) Between April 2007 and July 2008, the defendant made promises to the plaintiffs that he would make provision for them from the estate of their father, Kenneth Harrison, deceased. I am not satisfied that the defendant made any such promises to the plaintiffs before April 2007.

(2) At the time at which the defendant made the promises to the plaintiffs, the defendant knew that the plaintiffs were contemplating commencing proceedings to contest the dispositions made in the will of Kenneth Harrison, and he made the representations to the plaintiffs in circumstances in which he was aware that they might induce the plaintiffs not to institute such proceedings.

(3) The plaintiffs were induced by the promises, which I have found the defendant made, not to commence proceedings for provision from Kenneth Harrison's estate before the distribution of the estate was completed on 29 July 2008, and the plaintiffs acted reasonably in so relying on the promises made to them by the defendant.

(4) If the plaintiffs had sought to issue proceedings, under Part IV of the Act, between April 2007 and July 2008 -

(a) They would have each succeeded on an application, under s 99 of the Act, for an extension of time within which to bring such a proceeding;

(b) In such a proceeding, the Court would have ordered that provision be made out of the estate of Kenneth Harrison for the proper maintenance and support of each of the plaintiffs as follows -

(i) the Court would have awarded that the first plaintiff, Louise Harrison, be entitled to a 15 percent interest, as tenant in common, in the share of the estate of Kenneth Harrison in the Hopefield property and the attached water rights.

(ii) the Court would have ordered that the second plaintiff, Sue Harrison, be entitled to a 10 percent interest, as tenant in common, in the one quarter share of Kenneth's Harrison's estate in the Hopefield property and the attached water rights.

(iii) the Court would have ordered that the third plaintiff, Kathryn Harrison, be entitled to a 5 percent interest, as tenant in common, in the one quarter share of Kenneth Harrison's estate in the Hopefield property and the attached water rights.

(5) Accordingly, as a consequence of relying on the promises made to them by the defendant between April 2007 and July 2008, the plaintiffs have each lost their entitlement to provision from the estate of Kenneth Harrison pursuant to Part IV of the Act.

(6) Applying the principles of proprietary estoppel, the plaintiffs should each be granted relief, entitling the first plaintiff (Louise Harrison) to a 15 percent interest, the second plaintiff (Sue Harrison) to a 10 percent interest, and the third plaintiff (Kathryn Harrison) to a 5 percent interest, as tenants in common with the defendant, of the interest held by the defendant in the Hopefield property and in the associated water rights.

408 When counsel have had the opportunity to read these reasons for judgment, I shall hear counsel, and any other interested party, on the appropriate orders which should be made for relief in this case, and on the question of costs.

[1] [2010] NSWCA 84, [21].

[2] See also Donis & Ors v Donis [2007] VSCA 89; (2007) 19 VR 577, 589 [36] (Nettle JA); [2007] VSCA 89; Re Basham deceased [1986] 1 WLR 1498, 1503.

[3] [1959] HCA 8; (1959) 101 CLR 298.

[4] Currie v Dempsey (1967) 69 SR(NSW) 116, 450; Gordon v Australian and New Zealand Theatres Limited (1940) 40 SR(NSW) 512, 516 (Jordan CJ), 525-6 (Davidson J).

[5] Flinn v Flinn [1999] VSCA 109; [1999] 3 VR 712, 749 [117] (Brooking JA); [1999] VSCA 134; Amalgamated Investment and Property Co Ltd v Texas Commerce International Bank Ltd [1982] QB 84, 104-5 (Robert Goff J).

[6] Re Barrot [1953] VicLawRp 45; [1953] VLR 308, 312 (Sholl J); Ashhurst v Moss [2006] VSC 287, [107] (Hansen J).

[7] [1947] VicLawRp 28; [1947] VLR 212, 214.

[8] Ansett v Moss [2007] VSCA 161, [6] (Buchanan JA); Groser v Equity Trustees Limited [2007] VSC 27; (2007) 16 VR 101, 115 [81] (Gillard J); Menzies v Marriott [2009] VSC 345, [13] (Hollingworth J).

[9] [2007] VSC 27; (2007) 16 VR 101, 115 [82]; see also Sheppard v Heathcote (No 3) [2010] VSC 190, [15]-[16] (Robson J).

[10] Ansett v Moss [2007] VSCA 161, [11] (Buchanan JA).

[11] Re Lauer deceased [1984] VicRp 14; [1984] VR 180, 186 (Young CJ); Ashhurst v Moss [2006] VSC 287, [111] (Hansen J).

[12] Sheppard v Heathcote (No 3) [2010] VSC 190, [15] (Robson J).

[13] Re Lauer deceased [1984] VicRp 14; [1984] VR 180, 186 (Young CJ).

[14] Coates v National Trustees Executors & Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494, 508 (Dixon CJ).

[15] Coates v National Trustees Executors Ltd, 509 (Dixon CJ).

[16] Blair v Blair [2004] 149, [13] (Chernov JA), [40] (Nettle JA); 10 VR 69; Vigolo v Bostin & Ors [2005] HCA 11; (2005) 221 CLR 191, 202 [21] (Gleeson CJ), 228-230 [113]-[121] (Callinan and Heydon JJ); Lee v Hearn [2005] VSCA 127; (2005) 11 VR 270, 274-5 [9] (Callaway JA), 286 [53]-[55] (Batt JA), 286 [57] (Buchanan JA).

[17] [1938] AC 463, 478-9.

[18] Grey v Harrison [1997] 2 VR 359, 363 (Callaway JA); Stott v Cook (1960) 33 ALJR 447, 453.

[20] Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, 19 (Dixon CJ).

[21] [2004] VSC 425, [57].

[22] See also Lee v Hearn [2005] VSCA 127; (2005) 11 VR 270, 274 [8] (Callaway JA); [2005] VSCA 127; Iwasivka v State Trustees Limited [2005] VSC 323, [11] (Hansen J).

[23] Re Sinnott [1948] VicLawRp 48; [1948] VLR 279, 280 (Fullagar J).

[24] Blair v Blair [2004] VSCA 149; (2004) 10 VR 69, 79 [20]-[22] (Chernov JA).

[25] See for example Collicoat & Ors v McMillan & Anor [1993] 3 VR 803, 822 [52] (Ormiston J); Berkelmans v Bulach [2009] VSC 472, [74] (J Forrest J); Litchfield v Smith & Ors [2010] VSC 466, [27] (Hargrave J).

[26] Compare Torney & Ors v Shalders & Anor [2009] VSC 268, [63] (Mandie J).

[27] See McKenzie v Topp [2004] VSC 90, [15] (Nettle J); Klemke v Lustig [2010] VSC 502, [33] (Hargrave J).

[28] McKenzie v Topp [2004] VSC 90, [58] (Nettle J); Berkelmans v Bulack [2009] VSC 472, [71] (J Forrest J).

[29] (1862) De GF & J 517, 521-2 (Lord Westbury).

[31] (1884) 9 App Cas 699.

[32] (1865) LR, HL 129, 170.

[33] The Commonwealth of Australia v Verwayen (1990) 170 CLR 394, 410-11 (Mason CJ), 440 (Deane J).

[34] Giumelli & Anor v Giumelli [1999] HCA 10; (1999) 196 CLR 101, 112-13; Fifteenth Estin Nominees Pty Ltd & Ors v Rosenberg (2008) 24 VR 155, 190 [268].

[35] See for example Waltons Stores Limited v Maher & Anor [1988] HCA 7; (1988) 164 CLR 387, 425-6 (Brennan J); Commonwealth of Australia v Verwayen (above), 430 (Brennan J); cf 445 (Deane J), 459 to 60 (Dawson J); see also Cobbe v Yeoman's Row Management Ltd [2008] UKHL 55; [2008] 1 WLR 1752.

[36] [2007] VSCA 89; (2007) 19 VR 577.

[38] [2010] NSWCA 84.

[40] [2002] EWCA Civ 159.

[41] [1986] 1 WLR 1498.

[42] [2001] Ch 210, 226 (Robert Walker LJ).

[43] Footnote [2007] VSCA 89, [36].

[44] See also Delaforce v Simpson-Cook [2010] NSWCA 84, [42] (Handley AJA); Sullivan v Sullivan [2006] NSWCA 312, [18] (Handley JA).

[45] Waltons Stores (Interstate) Limited v Maher [1988] HCA 7; (1988) 164 CLR 387, 405 (Mason CJ, Wilson J) 423 (Brennan J); The Commonwealth of Australia v Verwayen (1990) 170 CLR 394, 428-429 (Brennan J), 442-3 (Deane J), 454 (Dawson J).

[46] Giumelli & Anor v Giumelli [1999] HCA 10; (1999) 196 CLR 101, 120, 125; Donis & Ors v Donis (above) [32] (Nettle JA); Fifteenth Estin Nominees Pty Ltd & ors v Rosenberg [2009] VSCA 178; (2009) 24 VR 155, 190-191 [268, 269].

[47] [2008] VSCA 86.

[48] Waltons Stores (Interstate) Ltd v Maher (above), 428-9 (Brennan J).

[49] Compare Fifteenth Estin Nominees Pty Ltd & Ors v Rosenberg [2009] VSCA 178; (2009) 24 VR 155, 192 [271].

[50] Australian Securities Commission v Marlborough Gold Mines Limited (1993) 177 CLR 495, 506; Standard Chartered Bank Australia Limited v Bank of China (1991) 23 NSWLR 164, 180 (Giles J).

[51] [1999] VSCA 109; [1999] 3 VR 712.

[55] [2008] VSCA 86.

[56] [1971] 2 QB 23, 60.

[57] Footnote above [55]; see also Galaxidis v Galaxidis [2004] NSWCA 111, [93]-[94] (Tobias JA).

[59] [2009] UKHL 18; [2009] 1 WLR 776.

[60] 794 [56] (Lord Walker), 801 [84]-[86] (Lord Neuberger).

[62] Jennings v Rice & Ors (above, [50].

[63] Plimmer v The Mayor, Councillors and Citizens of the City of Wellington (1884) 9 App Cas 699, 713; Sullivan v Sullivan & Ors [2006] VSCA 312, [16] (Handley JA).

[64] Donis & Ors v Donis [2007] VSCA 89; (2007) 19 VR 577, 588 [32] (Nettle JA); Delaforce v Simpson-Cook [2010] NSWCA 84, [3] (Allsop P), [56], [63] (Handley JA).

[65] Jennings v Rice & Ors [2002] EWCA Civ 159; Giumelli & Anor v Giumelli [1999] HCA 10; (1999) 196 CLR 101, 123-4; Sullivan v Sullivan & Ors [2006] NSWCA 312, [27].

[66] [2002] EWCA 159, [47].

[67] Cf Australian Crime Commission v Gray & Anor [2003] NSWCA 318, [183]-[187] (Ipp JA); Accurate Financial Consultants Pty Ltd & Anor v Koko Black Pty Ltd & Ors [2008] VSCA 86, [181] (Dodds-Streeton JA).