Reeves v Reeves - [2024] NSWSC 134 - NSWSC 2023 case summary — Zoe

NSWNSWSC

Reeves v Reeves

[2024] NSWSC 134

Supreme Court of NSW|2023-10-12|Before: Meek J, Act J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2023-10-12

Before

Meek J, Act J

Source

Original judgment source is linked above.

Judgment (92 paragraphs)

[1]

sharing the common thread that the plaintiff (for the most part) remained living and working in or around the family farm secured by the promises that he would inherit, under the initial promises, "half of the farm" and, by the subsequent promises, the "leased lots" ESTOPPEL - Discussion of issues including whether career choices may constitute detrimental reliance - Discussion of 'counterfactual case', significance of countervailing benefits and proportionality of relief - Held choices made by the plaintiff involved life changing decisions with irreversible consequences of a profoundly personal nature, beyond the measure of money - Held relief claimed not "wholly disproportionate" or "out of all proportion" to his detriment Legislation Cited: Administration of Justice Act 1982 (UK) Civil Procedure Act 2005 (NSW) Conveyancing Act 1919 (NSW) Evidence Act 1995 (NSW) Probate and Administration Act 1898 (NSW) Succession Act 2006 (NSW) Supreme Court Rules 1970 (NSW) Supreme Court Rules (Amendment No. 337) 1999 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Alan Wibberley Building Ltd v Insley [1999] 1 WLR 894 Alcan Australia Ltd v Geraghty (Supreme Court (NSW), Young J, 8 October 1993, BC9302153, unrep) Allgood v Blake (1873) LR 8 Exch 160 Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12 Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560; [2014] HCA 14 Bear v Bear; Jordan v Bear [2022] NSWSC 1687 Bell v Georgiou [2002] EWHC 1080 (Ch); [2002] WTLR 1105 Blacket v Barnett [2017] NSWSC 1032 Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Carrington v Wallace [2019] NSWSC 1301 Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39 Coorey v George (Supreme Court (NSW), Powell J, 27 February 1986, BC8601222, unrep) D Capital 2 Pty Ltd v Western [2022] NSWSC 1064; (2022) 20 BPR 42,919 Daniel v Athans [2022] NSWSC 1712 De Lorenzo v De Lorenzo (2020) 104 NSWLR 155; [2020] NSWCA 351 Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84 Dillwyn v Llewelyn (1862) 4 De GF & J 517; 45 ER 1285 Donis v Donis (2007) 19 VR 577; [2007] VSCA 89 Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8 Estate of JA Gilmore, deceased [2014] NSWSC 1263 Evans v Evans [2011] NSWCA 92 Fairbairn v Varvaressos (2010) 78 NSWLR 577; [2010] NSWCA 234 Farrelly v Phillips (2017) 128 SASR 502; [2017] SASCFC 111 Fell v Fell (1922) 31 CLR 268; [1922] HCA 55 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Galaxidis v Galaxidis [2004] NSWCA 111 Gan v Xie [2023] NSWCA 163 Gazzo v Comptroller of Stamps (Vic) (1981) 149 CLR 227; [1981] HCA 73 Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) Gillett v Holt [2001] Ch 210 Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 Habberfield v Habberfield [2019] EWCA Civ 890 Henry v Henry [2010] UKPC 3; 1 All ER 988 Horn v GA & RG Horn Pty Ltd [2022] NSWSC 1519 Horn v GA & RG Horn Pty Ltd (No 2) [2022] NSWSC 1747 Idoport Pty Ltd v National Australia Bank Ltd (2000) 49 NSWLR 51; [2000] NSWSC 338 IMO Leys [2000] VSC 164 James v Douglas [2016] NSWCA 178 Kaplan v State of Victoria (No 8) [2023] FCA 1092 King v Perpetual Trustee Co (Ltd) (1955) 94 CLR 70; [1955] HCA 70 Kramer v Stone [2023] NSWCA 270 Lewis v Stewart [2018] NSWSC 1186 Lindsay-Owen v Lake [2000] NSWSC 1046 Lockrey v Ferris [2011] NSWSC 179 Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 Marley v Rawlings [2015] AC 129; [2014] UKSC 2 Maxwell v Maxwell [2022] NSWSC 1028 Middleton v Schofield [2022] NSWSC 1454 Moore v Aubusson [2020] NSWSC 1466 Muir v Winn [2009] NSWSC 857 Perpetual Trustee Co Ltd v Wright (1987) 9 NSWLR 18 Perrin v Morgan [1943] AC 399 Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14 Priestley v Priestley [2017] NSWCA 155 Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220 Ramsden v Dyson (1866) LR 1 HL 129 Re Cobcroft [2015] NSWSC 346 Re Will of McCowen [2013] NSWSC 1000; (2013) 9 ASTLR 337 Riva NSW Pty Ltd v Key Nominees Pty Ltd [2023] NSWSC 711 Shymko v Lach [2022] NSWSC 1096 Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 Sidle v Queensland Trustees Ltd (1915) 20 CLR 557; [1915] HCA 48 Singh v Singh [2018] NSWCA 30 Soulos v Pagones [2023] NSWCA 243 Sullivan v Sullivan [2006] NSWCA 312 Taylor v Stav Investments Pty Ltd as trustee for the Stav Investments Family Trust (No 2) [2023] NSWCA 322 Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776 Vescio v Bannister (Estate of the late Betty Tait) [2010] NSWSC 1274 Waddell v Waddell [2012] NSWCA 214 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7 Wang v Yu (No 2) [2024] NSWSC 4 Warton v Yeo [2015] NSWCA 115 Whittaker v Child Support Registrar [2010] FCA 43 Wild v Meduri [2023] NSWSC 113 Texts Cited: Carr, Daniel J, "Rectification of testamentary writings in Scotland, England and Wales, and Australia" (2023) 17 J Eq 181 Dal Pont, GE, Interpretation of Testamentary Documents (2019, LexisNexis Butterworths) Dal Pont, GE, Law of Succession (3rd ed, 2021, LexisNexis) Heydon, JD, MJ Leeming and PG Turner, Meagher, Gummow and Lehane's Equity Doctrine & Remedies (5th ed, 2014, LexisNexis Butterworths) Macquarie Dictionary, online ed McFarlane, Ben, The Law of Proprietary Estoppel (2nd ed, 2020, Oxford University Press) Meek J, "Will Construction" (Paper), NSW Bar Association Succession and Elder Law Committee, 22 March 2023 Category: Principal judgment Parties: Russell Robert Reeves (Plaintiff) Kevin Wayne Reeves (Defendant) Representation: Counsel: C Birtles with J Green (Plaintiff) S Fendekian with F McNeil (Defendant)

[3]

Introduction

HIS HONOUR: These proceedings involve a dispute between the plaintiff and the defendant who are the only two children of the late Gloria Dawn Reeves (the deceased), who died on 28 May 2021. The dispute is in relation to their entitlements to valuable farming land at Stroud Hill, approximately 5-7 km north-east of the main town area of Dungog, NSW, though address details variously refer to the location as being both Dungog and Stroud Hill.
On 22 October 2010, the deceased executed her last Will (last Will), which gave the majority of the disputed land (which I will describe in more detail below) to the defendant (Kevin Wayne Reeves - but generally referred to and known as "Wayne").
Without intending any disrespect, it is convenient to refer to various of the deceased's family relations (many of whom bear the common surnames) by reference to their given or familiar family names.
Mr Birtles appeared with Mr Green for the plaintiff. Ms Fendekian appeared with Ms McNeil for the defendant. For convenience, I will refer to the submissions on behalf of the plaintiff and the defendant as submissions by Mr Birtles and Ms Fendekian respectively. However, it was evident that throughout the hearing their juniors gave them considerable assistance which should be properly acknowledged.
I will cite the evidence in the proceeding by reference to the Court Book (CB), transcript pages and exhibit numbers and cite the submissions by reference to the plaintiff's opening written submissions (POS), the plaintiff's closing written submissions (PCS), the defendant's closing written submissions, which incorporated the defendant's opening submissions (DCS), and transcript pages.
The means by which the plaintiff (Russell Robert Reeves) presses his case to a greater share of the disputed land are through three claims for relief, namely: 1. construction of the last Will (construction claim); 2. rectification of the last Will (rectification claim); and 3. a declaration that the disputed land to which the plaintiff claims to be entitled is held on trust by the executors of the deceased's estate for the plaintiff based on principles of estoppel (estoppel claim).
I have determined that the plaintiff's construction claim and rectification claim fail but the plaintiff's estoppel claim succeeds.
The plaintiff's claims, whilst at one level are able to be simply stated, are grounded in a detailed factual history.
A significant degree of the history per se is not relevantly disputed. Nonetheless, the parties are at dispute regarding various matters which are said to bear upon the deceased's intentions regarding what she proposed or wished the plaintiff to inherit at various points during her lifetime and, in particular, in the process of the deceased making her last Will.
The factual disputes in this regard, which on the plaintiff's side are said to underpin his three claims and on the defendant's side are said to undermine the three claims, focus on expressions used by the deceased and others to describe the disputed land and upon choices made by the plaintiff during his lifetime.
The extent of the deceased's landholdings at the time of her last Will, the ownership of which did not vary in the subsequent 10 to 11 years leading to her death, is not in dispute.
By October 2010, the deceased held 21 pieces of land which are identifiable in a number of ways, but for precision are technically described as lots in deposited plans.
The case was, to a substantial extent, advanced on both sides on the basis that there was a 'correct' form of appellation of the various lots by which (it is contended) the deceased in some way conclusively defined the content of her intentions, whether expressed in forms of testamentary promises or in her last Will. The parties marshalled, both in affidavit and documentary form, a large volume of evidence prehearing directed to descriptions of the disputed land.
During the hearing, there was a considerable degree of testing of various witnesses regarding naming and forms of spelling of the disputed land (in whole or part).
Broadly speaking, the evidence revealed that the deceased and others, over many decades, used different names and various forms of spelling to refer to the disputed land, both individually and collectively, for different purposes.
Often, use of the descriptions was by reference to farms or farming operations. At other times, use of the descriptions was to the land, structures on the land or landmarks. The lots constituting the disputed land were rarely referred to by the deceased, the parties or relevant witnesses in casual or informal settings or engagements by reference to their lot and DP numbers. There is no real dispute that on parts of the disputed land there were relevantly, at various times, 'farms' managed in the sense of uses of land by the deceased and her husband for remunerative purposes. Those uses were in the form of dairying and beef cattle operations (farms). As will be explained further below, the two key dairy operations on the family farm were known as "Dingadee Dairy" and "Kennilworth Dairy". Both of these operations have since ceased.
Ultimately, for the purposes of determining the plaintiff's claims, it is the deceased's use of names or descriptors, in context, which is relevant for the construction, rectification and estoppel claims. The plaintiff's understanding of the deceased's use of names is also relevant for his estoppel claim.
Determination of the plaintiff's claims requires some outlining of the various family relationships, details of deceased's last Will, her estate and, in particular, her property holding to provide sufficient context for addressing the claims for relief. Much of that material is not disputed per se and I will set that out below.

[4]

Family relationships

The deceased was born in Stroud, which is to the east of Dungog, in March 1928, and, by the time of her death in May 2021, was aged 93. As a child, she lived with her parents in what is described as the Dingadee area: CB 82[10], 269[70]. The name "Dingadee" is, according to the Geographical Names Register of the Geographical Names Board, of Aboriginal origin: CB 1056.
In her early childhood, she lived in a house known as "Dingadee House" on land which is not part of the estate land, but owned by the Hooke family: CB 82[10], 269[70].
In 1949, at the age of 21, the deceased married James Clifford Reeves, who is referred to in the evidence as "Jim" or "Jimmy" (I will refer to him as "Jim"). The deceased remained married to Jim for approximately 55 years until his death on 4 February 2005. She did not remarry or form any other relationship after Jim's death.
In February 2021, the deceased was hospitalised, and she remained hospitalised until she passed away: CB 116[211].
The plaintiff, the deceased's first child, was born in August 1951 and is currently aged 72. The defendant was born approximately four and a half years later in March 1956 and is currently aged 67.
The plaintiff is a research scientist: CB 81, 126, 212. He holds a Bachelor of Science degree (awarded with honours in 1974) and a Doctor of Philosophy degree in chemistry (awarded in 1978) from the University of Newcastle: CB 86[34]-[35]. He co-founded, and is an employee of, Apace Research Limited (Apace), a not-for-profit scientific research organisation: CB 91[57]. The plaintiff also co-founded, and is the non-executive managing director of, Ethanol Technologies Pty Limited (Ethtec) (CB 106[159], 121[242]) and is a director of Ethanol Technologies Investments Limited (ETI) (Exhibit D3). ETI is the parent company and controlling entity of Ethtec: T 163.27-29; Exhibit D3 page 22.
The plaintiff married Barbara Bensley (Barbara) in April 1980 and they remained married until Barbara's death on 14 August 2016.
The plaintiff and Barbara have three children, namely: 1. Stuart, born in April 1981 - now aged 42; 2. Andrew, born in November 1985 - now aged 38; and 3. Angela Funnell (nee Reeves) (Angela), born in April 1991 - now aged 32.
Stuart and Andrew referred to the deceased as "mama".
The defendant is a grazier and has always lived and worked on the family farm: CB 259. In 1975 he started studying physics at the University of Newcastle, during which time he stayed in Newcastle and returned to Dungog on weekends to work on the farm. Eventually, the defendant dropped out of university: CB 260[11]. In 2007, he resumed his studies on a part-time basis and in 2014 graduated with a Bachelor of Science degree majoring in physics. Since that time, the defendant has continued to work on the family farm: CB 259[4], 261[16].
The defendant has never married and has no children.
The deceased was survived by a sister Patricia, who is currently aged approximately 92: CB 147[4], [8]. Patricia's daughter Karen Hewitt (Ms Hewitt) swore an affidavit in the proceedings on the part of the plaintiff.

[5]

Working and professional relationships

During their lifetimes, the deceased and Jim were assisted by various workers on the farms, as well as a number of professionals.
Without attempting to be exhaustive, I note details of the following workers and professionals having some connection with the deceased: 1. Philip Martin Addison (Mr Addison) - Jim's and the deceased's accountant for the period from approximately 1977 to 2005: CB 142[9], 144[20] (I note that in 2005, after the deceased's death, Mr Addison had nothing to do with the deceased and her accounting work was handed over by Mr Addison to Lynn Jenkins of his office); 2. Gregan John McMahon (Mr McMahon) - Jim's and the deceased's solicitor at the firm McMahon & McMahon, who acted for them (although principally for Jim) from approximately the late 1970s through to 2006: CB 161[20]; 3. Felix Prentice - a solicitor of the firm W.J. Enright & Prentice (which firm had from 1 July 2005 incorporated McMahon & McMahon: CB 159[8]) - which (specifically Felix or Max Prentice) may have acted in the administration of Jim's estate: CB 767, 803; 4. Jennifer Blundell - a solicitor of the firm Jennifer Blundell and Associates - who acted for the deceased in relation to various compensation claims against authorities (including RTC, State Rail Authority and Australian Rail Track Commission) in or about 2010: CB 246[18]; 5. Paddy Vincent Dillon (Mr Dillon) - a real estate, stock and station agent - whose firm Dillon & Sons Pty Ltd acted for Jim and the deceased for over 30 years up until the services of the firm were terminated by the deceased in January 2014: CB 171[13], 174[33]; 6. Ronald James Shepherd (Mr Shepherd) - a grazier who worked on dairy farm properties in the Dungog area and, in particular, worked at Dingadee Dairy from 2001 to 2002 and then Kennilworth Dairy from 2002 to 2006: CB 177[7], 178[11]; 7. Beverly Irene Irwin (Ms Irwin) - a retired business proprietor in Dungog who was a friend of the deceased and regularly visited the deceased at her home for afternoon tea throughout the 1970s to 1990s: CB 190[4], [6]; 8. James Gordon Alison - a farmer owning land several lots of which adjoin land owned by the deceased: CB 228[2]; 9. Andrew James Doyle (Mr Doyle) - a solicitor, being a director of Doyle Wilson Solicitors, who commenced to act for the deceased from in or about June 2010 in relation to the preparation of her last Will: CB 233[7]; 10. Andrew Badgery (Mr Badgery) - the deceased's financial planner who in or about June 2009 referred the deceased to a new accountant John Morgan Gowing: CB 244[4]; 11. John Morgan Gowing (Mr Gowing) - the deceased's accountant, and principal of GowingAdvisory in Muswellbrook, who was engaged by her from about June 2009 and whose firm acted for her up until her death: CB 244[7]. (Until about 2008, the deceased's accountant was the firm of Addison Watts. She sold her shares in the Dairy Farmers Co-operative and learnt that she would have to pay a considerable amount in tax: CB 264[38]. Following that, the deceased contacted Mr Badgery, who recommended Mr Gowing as a new accountant: CB 264[39]); 12. Wayne Brorson (Mr Brorson) - a valuer, of the firm Brorson Valuations Pty Ltd, who valued property held by Jim for probate purposes (on the instructions of Mr McMahon) consequent upon Jim's death in 2005 (CB 804-816), and who subsequently provided to Mr Gowing the documents I describe below as the North map and South map; and 13. Lindsay Evan Moxey (Mr Moxey) - a stock and station agent, currently contracted to Elders, who in 2006 had acted as an agent for the deceased to sell her dairy cattle and later arranged for part of the Dingadee property to be agisted to distant relatives of his, and otherwise maintained a close relationship with the deceased: CB 292[2]-[8].

[6]

Deceased's real property and the disputed land

The evidence in the proceedings contained numerous descriptions and references to the deceased's landholding. For reasons which are explicable by the relief sought in the rectification claim, many of the witnesses annexed map documents to their affidavits principally for the purposes of outlining what they contended to be the deceased's description, or their understanding of the deceased's description, of her land.
That resulted in their being many different map documents in the Court Book materials.
Counsel, in their preparation for the hearing of the case, recognised the forensic assistance to the Court, and to the various witnesses, of having a large map version of the deceased's landholdings.
Within a short period of time after the commencement of the hearing, each of the respective counsel handed up, as a form of aide-mémoire, a large-scale (A3 size) coloured map of the deceased's landholdings. The document handed up by the plaintiff's counsel was marked as MFI-1, and the document handed up by the defendant's counsel marked as MFI-2.
Counsel and instructing solicitors are to be commended for their assistance to the Court in preparing such diagrams, which facilitated the hearing of the matter and the Court's and witnesses' understanding of the various lots referred to during the hearing.
Counsel also rightly recognised that, for the sake of simplicity, it is helpful (if not imperative) to identify the disputed landholding by reference to a single document, so that the evidence of the many witnesses could be comparable and comprehensible by reference to a fixed or standard reference point, and everyone was "on the same page". During the course of the hearing, the vast majority of witnesses who were cross-examined in relation to the deceased's landholding and naming of land were cross-examined by reference to MFI-2. That is explicable by the fact that the defendant's counsel cross-examined first and there were more witnesses for the plaintiff than for the defendant.

[7]

Various maps of the deceased's lots

As MFI-2 was the principal document to which witnesses were taken, it is convenient to use that document as being the document by reference to which I will describe the deceased's land. To assist in making these reasons for judgment comprehensible, I will incorporate MFI-2 as an appendix to these reasons for judgment.
MFI-2 contains both a table (on the left) and a coloured map diagram (on the right). The table contains contained six columns with the following headings (from left to right): lot; purchase details; source (of purchase details); nickname; source (of nickname); and colour.
There are 22 rows of data in the table (under the abovementioned headings). In particular, under the heading "lot", there are entries which for the most part identify lots of land by reference to lot and DP number. Those entries contain lettering identification from (a)-(v), being 22 entries.
Whilst there are 22 rows, there are a few anomalies in the alphabetical identification of lots (a)-(v). Without intending to be exhaustive: 1. row 3 being lot (c) [Lot XX DP XXXXX] has been included in the table even though it is a lot in fact owned by the plaintiff, and so is not one of the 21 lots owned by the deceased; 2. row 6 contains reference to 2 lots labelled simply as "(f)"; 3. row 14 follows a row in which the lot is lettered (m) but, instead of being lettered (n), is lettered (o), with (n) following (o) in row 15; and 4. row 18 refers to an enclosure permit entitlement which is not a lot owned by the deceased.
The detail contained in the table is sourced principally from three affidavits read in the proceedings, being: the plaintiff's first affidavit; the defendant's first affidavit; and Mr Gowing's first affidavit.
Insofar as the purchase details of the lots are concerned, there is, as I understood it, no substantial dispute regarding the descriptions contained in that column. Various witnesses were asked about the names recorded in the "nickname" column. The nicknames were inserted for only half (11) of the 22 rows. There is no dispute that the names have been sourced from the affidavit references. However, a number of the witnesses who were questioned about the nicknames did not agree that the relevant lots were known by such nicknames.
For the purposes of describing the real property owned by the deceased, the table includes all 21 lots. I propose to refer to the particular lots, for the purposes of addressing the evidence in the proceedings, by reference to the nominated letter in the MFI-2 table, for example "(a)", "(b)" etc, as a means of identifying the particular lots.
For simplicity and ease of reference, I set out the lettering used to identify each of the deceased's 21 lots in MFI-2 immediately below. No. Lot abbreviated name Lot title reference Dingadee lots 1 (a) Lot X DP XXXXXX 2 (b) Lot XX DP XXXXXX 3 (d) Lot X DP XXXXXX 4 (e) Lot X DP XXXXXX 5 (f-4) Lot X DP XXXXXX 6 (f-5) Lot X DP XXXXXX 7 (g) Lot X DP XXXXXX 8 (h) Lot X DP XXXXX 9 (i) Lot X DP XXXXXX 10 (j) Lot X DP XXXXX Kennilworth lots 11 (k) Lot X DP XXXXXX 12 (l) Lot X DP XXXXXX 13 (m) Lot X DP XXXXXX 14 (n) Lot XX DP XXXXXX 15 (o) Lot XX DP XXXXXX 16 (p) Lot X DP XXXXXX 17 (q) Lot X DP XXXXXX (r) Enclosure permit (see below) 18 (s) Lot XXX DP XXXXXX 19 (t) Lot X DP XXXXXX 20 (u) Lot XXX DP XXXXXX 21 (v) Lot X DP XXXXXX

[8]

Land features

There are various features of the deceased's landholding, and her landholding may be characterised in a number of different ways. A particular feature of the landholding, as is evident from MFI-2 and emerged from the evidence, is that there is (with some minor exceptions) somewhat of a natural division of the deceased's landholding by reference to a road known as Stroud Hill Road, which runs essentially horizontally from east to west on MFI-2. Lot (o) (being Lot XX/DP XXXXXX) is the one lot which straddles both north and south of Stroud Hill Road. However, with that exception, there are 10 lots held by the deceased which lie entirely north of Stroud Hill Road and 10 lots which lie entirely south of Stroud Hill Road.
The 10 lots that lie north of Stroud Hill Road are referenced in MFI-2 as being lots (a), (b) and (d)-(j). For counting purposes, the lot which is lot (f) is in fact two lots (Lots X and X DP XXXXXX) which adjoin one another.
The balance of the 21 lots held by the deceased, barring lot (o), lie entirely to the south of Stroud Hill Road. The major portion of lot (o) also lies south of Stroud Hill Road. In the table in MFI-2, those 11 lots are listed as lots (k)-(q) and (s)-(v).
The plaintiff and his legal representatives, for the purposes of advancing his case, essentially described the 10 lots north of Stroud Hill Road as being the "Dingadee lots" (CB 37[1]) and the remaining 11 lots, all (essentially) lying south of Stroud Hill Road as being the "Kennilworth lots". Those two descriptions conveniently group the lots under a descriptor which was not seriously disputed between the parties: CB 271[80], 272[91], 275[110], 276[116]. For convenience, I will adopt the same description.
The disputes regarding nomenclature, at least initially, were as follows: 1. the defendant asserted that lots (g), (h), and (i) (see below) were known as "Yates", as well as "Dingadee", and that the cottage located on lot (h) was known as "Yates Cottage" or "the cottage", rather than "Dingadee Cottage": CB 274[101]; 2. the defendant maintained that Kennilworth is spelt "Kenilworth" (i.e. with one "n" rather than two): CB 279-280[138]-[139]; and 3. the defendant asserted that lot (a) (on which the Dingadee Dairy was originally operated) was called "Dinga Dee" by the deceased (i.e. as two words), based on a conversation he had with the deceased in or around 2010: CB 283[167].
The land referred to in row (r) in the MFI-2 table identifies land being PLT X in DP XXXXX, which is the subject of Enclosure Permit XXXXX from the NSW Department of Planning, Industry & Environment: CB 1168. The plaintiff describes it as being PLT X in DP XXXXX (CB 85[32(g)], 107[164(h)]), while the defendant and Lachlan Wilson (Mr Wilson, his solicitor in the proceedings) describe it as being of part of Lot X in DP XXXXXXX: CB 276[117], 299[7]. I will refer to it as the "enclosure permit entitlement".
A Crown Land Search was conducted by the defendant's solicitor (CB 299[5]), which describes the enclosure permit entitlement as being an enclosed road and a "Crown public road through and west of Lot [X] DP [XXXXXXX]": CB 1168, 1347. It is evident from the map attached to the search that it comprises in fact two small, enclosed road areas, one being "through" lot (q) (Lot X DP XXXXXXX) and the other to the "west" of lot (q) and adjacent to Lot X DP XXXXXX, benefiting lot (q) with the area of 7,359 m²: CB 137[64], 276[117], 277[119], 299[7]-[8], 1169, 1268, 1348.
An enclosure permit is an authorisation issued by the Department to an owner of an adjoining property and allows the Crown road to be used for the grazing of stock and fenced into the owner's private land. The permit, whilst described as a form of "holding" (CB 1168), does not give the person with the benefit of the permit ownership of the Crown road or allow them to restrict access along the Crown road: CB 1255. In fact, it is subject to small annual rent payable annually in advance on 3 October each year, which for the 2021 year was $516: CB 1168, 1281[54], 1347.
For that reason, the land subject to the permit is not to be understood as being land forming part of the deceased's estate (despite the form of the description of real property in the inventory of property). When a property enclosing a Crown road is sold, the enclosure permit remains in force and the new owner of the land is liable for payment of the rent, including any arrears of rent and interest: CB 1255[15], 1345.
There are a number of other features which are evident on the map in MFI-2, and are referred to in some of the evidence in the proceedings, that bear mentioning.
There is a railway line that runs east to west across the deceased's land. It runs south of Stroud Hill Road on the east and crosses Stroud Hill Road between lots (k) and (o). North of Stroud Hill Road, it enters the land area owned by the deceased (after winding through other land not owned by the deceased) between lots (j) and (h). It continues through to Monkerai Road (sometimes described by Stuart as Monkerai Creek Road: T 242-243), runs past lot (a), borders lot (e) and continues south effectively around the border of lot (a).
Lot (v) is a small lot being the site of the deceased and Jim's first home (sometimes referred to in the evidence as the "original home" e.g. CB 83[17], 223[99], 1245[46]), and lot (u) is a small lot with the site of the deceased's second home (sometimes described in the evidence as the deceased's family home or "Kennilworth Homestead" e.g. CB 82[15], 1266[45]). Those lots, when one looks at MFI-2, are distinct, but appear to be more generally located within the boundary lines of lot (s).
On the western side of lot (s) and lot (o), there is a road, being Majors Creek Road, which runs to the north and is effectively perpendicular to Stroud Hill Road. Monkerai Road generally runs along the border of Lot XX DP XXXXXX (the plaintiff's lot), lot (b), lot (g) and lot (h) to the east and (relevantly) lot (a) and lot (d) to the west. To the far left side of MFI-2 there is another road, Fosterton Road, which, in its northern part, runs north-south in lots (not owned by the deceased) to the west of lots (d) and (a). In its lower reaches, Fosterton Road touches along the border of lots (a) and (f) and eventually intersects with Stroud Hill Road: T 429.28-430.15.
Lot (i) is exceedingly small and hard to discern from MFI-2 or MFI-1. Early on in the hearing, it was marked with an X on MFI-1, with the agreement of counsel.
For the most part, the lots forming part of the Kennilworth lots were acquired by Jim and/or the deceased from 1956 through to the beginning of the 1970s. The exception was lot (n) which was purchased in 1986.
The lots forming part of the Dingadee lots were purchased later than the set of Kennilworth lots (excepting lot (n)). Lots (a) and (f) were purchased in 1979, lots (d) and (e) were purchased in 1980, lot (b) was purchased in 1987, lots (g), (h) and (i) were purchased in 1993 and the final lot (j) was purchased in 2002.
Thus, all of the 21 lots had been acquired by 2002.
There was some slight dispute on the affidavit evidence regarding the sizing of the various lots. The plaintiff in his first affidavit (sworn 15 August 2022) indicated that the total area of the farm comprising the Dingadee lots and the Kennilworth lots is 788.68 ha: CB 106[161]. That figure was taken from records which the plaintiff had accessed from the NSW Valuer General: CB 136[58]. It is also supported by a reference in the NSW Local Land Services Rates 2001 Tax Invoice: CB 992. Mr Wilson took issue with that sizing figure in his affidavit (affirmed 4 October 2022) and responded to the plaintiff's calculations: CB 299[7]-300[13]. The plaintiff responded to Mr Wilson's calculations in a subsequent affidavit (sworn 28 October 2022), in which he explained his calculations and ultimately accepted the figures given by Mr Wilson: CB 136[58]-137[64].
There is no issue on the hearing which is vitally dependent on the actual size of each of the lots or their total sizes. For the purposes of the hearing, the parties proceeded on the basis that the areas referred to in the evidence of a valuer, Mark Ellis (Mr Ellis), were accurate, or at least that his evidence appropriately details the size of the areas. On that basis, I note that Mr Ellis indicated that the 10 Dingadee lots comprise an area of approximately 301.13 ha (CB 1251) and the 11 Kennilworth lots comprise an area of 419.137 ha (CB 1252), together being a total of approximately 720 ha.

[9]

Valuation of the lots

Mr Ellis provided evidence in the proceedings on behalf of the defendant which included a valuation report dated 13 September 2022 (initial valuation report): CB 1247-1365. He provided land descriptions of the various lots in that report: CB 1267-1268.
On 24 August 2023, the plaintiff swore an affidavit which was directed to providing additional evidence in relation to the parcels owned by the deceased, including their past use and current occupation, in response to Mr Ellis' initial valuation report. In that affidavit, he provided a description of the Dingadee lots and the Kennilworth lots: CB 212-224. (His description of the 10 lots as being the Dingadee lots was, for evidentiary purposes, limited to being understood as his contention regarding which lots comprise the Dingadee lots.)
On 31 August 2023, Mr Ellis provided a supplementary valuation report addressing observations as to whether he agreed with the plaintiff's description of the lots and whether the plaintiff's descriptions changed any of his reasoning or conclusions in his initial valuation report: CB 1241-1246.
From approximately early 2007 (T 36.35-39) (with an exception I will refer to below), the deceased leased out three of the Kennilworth lots, namely (k), (l), (m) and part of lot (o) (being that part north of Stroud Hill Road), together with the 10 Dingadee lots.
The exception being that one of the "leases" is in fact a "licence". Specifically, a land use licence agreement, dated 16 November 2013, between the deceased and a company, Baker Family Group Holdings Pty Ltd, as trustee for the Baker Family Unit Trust (Baker Family licence): CB 945-948. The Baker Family licence is in respect of premises described as XX Monkerai Road Main Creek, comprising 420 acres of grazing land and incorporating steel cattle yards and a hay shed, covering lots (h), (j), (b), (g) and the part of lot (o) north of Stroud Hill Road, together with the plaintiff's Lot XX DP XXXXXX (lot (c) in MFI-2): CB 110[177(i)], 945-948. The Baker Family licence is signed by the deceased and witnessed by the defendant: CB 948.
For the purposes of the plaintiff's claims, the matter proceeded on the basis that the plaintiff's own land (being lot (c)), which was included in the Baker Family licence by the deceased, was (self-evidently) not included in his claim for what is described as the "leased lots". Thus, unless otherwise indicated, I will refer to the "leased lots" as being the 10 Dingadee lots plus lots (k), (l) and (m), and part of lot (o): e.g. CB 3[3], 7[36], 37[3], 41-42[36], 1286, 1350. As there were 13 lots and part of another lot, the leased lots were at times during the evidence described as being 14 lots.
In light of the plaintiff's ultimate claims in the proceedings, it is convenient to refer to the three Kennilworth lots which were leased, namely that lots (k) [Lot X DP XXXXXX], (l) [Lot X DP XXXXXX], (m) [Lot X DP XXXXXX] and part of lot (o) [part of Lot XX DP XXXXXX] as being "the Kennilworth leased lots".
Mr Ellis valued the 10 Dingadee lots, which comprise an area of 301.13 ha, at a total amount of $5,420,375 (adopting a rate of $18,000 per hectare): CB 1251.
Mr Ellis valued the 11 Kennilworth lots, which comprise an area of 419.137 ha, at a total amount of $5,130,123 (adopting a rate of $12,240 per hectare): CB 1252.
Mr Ellis valued the leased lots as well. However, in valuing the leased lots, he did not include the small part of lot (o) which is north of Stroud Hill Road. Thus, the value Mr Ellis gave was for the 13 lots, which he indicated comprised land area of approximately 320.496 ha, being $5,768,925 (adopting a rate of $18,000 per hectare): CB 1252.
There was no broad challenge to Mr Ellis' valuation reports. Rather, there was a very discrete challenge to the value that Mr Ellis attributed to lot (e), being the lot which is bounded to its north, west and south by lot (a) and, to the east, by the railway line.
In response to the plaintiff's statement that lot (e) was effectively landlocked, Mr Ellis indicated in his report that it is unlikely that the land would have potential to be sold in isolation and he considered it to be contiguous with adjoining lots, but nonetheless confirmed his assessment of value at $18,000 per hectare as at September 2022: CB 1242.
In response to the plaintiff's comments more generally, Mr Ellis revised the value that he had attributed to a number of the Dingadee lots in his supplementary valuation report, resulting in a revised value for the 10 Dingadee lots of $4,953,527: CB 1245. Likewise, he revised his value for certain of the Kennilworth lots, resulting in a revised valuation for those 11 lots at $6,309,750: CB 1246.
Mr Ellis was cross-examined, and I considered him to be a careful, reliable and truthful witness.
The critical part of his cross-examination focused upon lot (e) and its potential use and value. He was cross-examined on the basis that the lot, being bounded on the east by the railway line, has no vehicular access other than what might be obtained by access through lot (a) at some point on the northern, western or southern boundaries of lot (e).
Lot (e) is 3.25 ha. Mr Ellis explained that, if the lot was totally isolated with no vehicular access, the value of the lot would represent a constrained value. This would most likely be the value of the lot to an adjoining owner, which would take into account the value of the contiguous lots less some sort of discount to reflect the fact that the transaction would take place "off market", or "not [be] exposed to the overall market", because the most likely buyer would be the adjoining owner (which presumably causes the price to have little upward pressure without competition amongst buyers): T 375.
If there were access to lot (e), Mr Ellis indicated it would probably sell as a lifestyle lot, by which he meant that the likely use would involve a purchaser building a house on the lot and having a hobby farm or undertaking hobby farm style pursuits on the property: T 376. Mr Ellis indicated that if there were no access to lot (e), the value of the lot would be determined by (or have to take into account) the cost of acquiring a right-of-way over the adjoining property, based on market rates which would be a percentage of the rate per hectare: T 376-377.
During the hearing, there were two other diagrams which featured largely in the evidence of Mr Doyle, the solicitor who attended on the deceased for the purpose of making the last Will, and Mr Gowing. Although there are various forms of the diagrams in evidence, Mr Gowing and Mr Doyle were cross-examined by reference to a version of the two diagrams which appear at CB 1028 and 1029 and at pages 26 and 27 of Exhibit P1. The diagrams present as forms of topographical maps that cover the area where the deceased's property is located. The document at CB 1028 and page 26 of Exhibit P1 identifies, through shading or hatching, the lots held by the deceased south of Stroud Hill Road, and contains handwriting under the map "South of Stroud Hill Road". I will refer to that map as the "South map". The document at CB 1029 and page 27 of Exhibit P1 depicts lots held by the deceased, identified through shading or hatching, which are north of Stroud Hill Road and contains under the map handwriting "north of Stroud Hill Road". I will refer to that map as the "North map".
Colour versions of the North map and South map appear at CB 838-839 (and 1026-1027). They were sourced by Mr Gowing from Mr Brorson, who provided them to Mr Gowing on 22 June 2010: CB 245[14]. The colour versions contain no annotation on the actual maps themselves. The documents which I have described as the North map and South map do, however, contain handwriting. As the maps bear some importance in relation to the Will-making process, I will later in these reasons briefly address the context in which the maps were sourced from Mr Brorson.

[10]

Farming operations

From the time of the acquisition by Jim and the deceased of the initial Kennilworth lots around the 1960s, the couple operated a dairy farm on Kennilworth. That farm continued in operation through the childhood years of the parties.
In March 1979, Jim and the deceased purchased lot (a), on which lot the Dingadee Dairy operated. The plaintiff states (and I accept) that he contributed $26,000 to the purchase price of $80,000 for lot (a).
The Dingadee Dairy was operated by a share farmer, Colin Sullivan (Mr Sullivan), under a share farming agreement with Jim and the deceased, by which they received income from the dairy and also from the house on the lot. The plaintiff says, and I accept, that he forwent a share of income from that arrangement at Jim's request.
From about 1990, Stuart commenced helping at the Kennilworth Dairy and doing other farm jobs on the weekend with the plaintiff, Jim and the defendant. According to Stuart, Jim ran the Kennilworth Dairy on what he described as the "Kennilworth property", which, according to his understanding (T 175), constituted the property held by Jim and/or the deceased on the south side of Stroud Hill Road: CB 182[6], [8]. The "Dingadee property", to Stuart's understanding, constituted the landholding on the north side of Stroud Hill Road.
In 2001, the share farming agreement with Mr Sullivan for the Dingadee Dairy came to an end, and Jim then engaged workers to run the Dingadee Dairy: CB 105[153], [154].
In or about December 2006, the deceased decided to close the Kennilworth Dairy and raise beef cattle instead: CB 111[183]; 138[67], 213[11], 217[48], 263[30]; T 33, 300.35-37.
In 2006, the Australian Rail and Track Co-operative (ARTC) made a decision to remove two wooden bridges that connected the farm between land south of the railway line and land north of the railway line. ARTC advised that it was not intending to replace the bridges. The deceased decided that she would not accept this decision and sought compensation against ARTC: CB 264[41]-[42].
In about November 2009, Mr Gowing assisted the deceased to reinstate her entitlement to compensation arising from shares she had lost in Dairy Farmers Cooperative Pty Ltd as a result of the milk quota system: CB 247[21].
In May 2010, and for some months thereafter, Mr Gowing assisted the deceased in a dispute with Binnie Beef which related to cattle that were on agistment on the deceased's property: CB 246[20].
On 24 July 2010, the deceased received a compensation payment of $300,000, plus payment of her legal expenses, from ARTC as a result of her claim: CB 246[19].

[11]

Leasing of lots

In 2006, approximately a year after Jim died, the deceased informed the plaintiff that she had decided to lease "the Dingadee paddocks": CB 109[174]. The deceased indicated that she would contact Mr Dillon to arrange it. It appears from about that time arrangements were made for leasing.
Mr Dillon indicates that, in about 2008, approximately three years after Jim died, the deceased contacted him wishing to engage Dillon & Sons to lease some of the Dingadee paddocks: CB 172[21]. It seems to me that the timing of the deceased's initial contact with Mr Dillon was earlier than that, namely in or about late 2006. However, nothing of substance turns on that.
Mr Dillon met with the deceased at her home, sitting at the kitchen table, to discuss her requirements. He took topographical plans of the area with him and showed the plans to the deceased: CB 172[22]. According to Mr Dillon (CB 172[22]): 22. … I showed the plans to Gloria and said words to the effect of: "What do you want to do?" Gloria replied: "Now that the dairy is closed we don't use the Dingadee paddocks any more. Wayne is running beef cattle of [sic] Kennilworth. I want to lease the Dingadee paddocks"
Mr Dillon indicates that he did not ask the deceased to identify the Dingadee paddocks as it was obvious to him, based on his past dealings with the deceased and as a property owner in the area, that she was referring to her land on the north side of Stroud Hill Road: CB 172[23].
Mr Dillon indicates that, in her instructions to him, the deceased variously referred to the Dingadee paddocks as (CB 173[24]): … the Dingadee Dairy paddocks (which I now know to be Lot [X] in DP [XXXXXX], Lot [X] in DP [XXXXXX], Lot [X] in DP [XXXXXX], Lots [X] and [X] in DP [XXXXXX]), Yates' paddock (which I now know to be Lot [X] in DP [XXXXXX] Lot [X] in DP [XXXXXX] Lot [X] in DP [XXXXXXX][)] or Russell's paddocks (which I now know to be Lot [XX] and Lot [XX] in DP [XXXXXX]).
Mr Dillon attended the deceased at her home on at least five occasions to discuss the leasing of the Dingadee paddocks. Dillon & Sons acted for the deceased in respect of the leasing of the paddocks, however, whilst he has searched the firm's records, Mr Dillon has not been able to obtain copies of those leases: CB 173[25]-[29].
In early 2007, following the closure of the Kennilworth Dairy (in about December 2006), the deceased commenced leasing the 14 lots which I have described as the leased lots: T 36.37-39; cf CB 109-110[174]-[176].
The deceased then commenced to use the Kennilworth lots, apart from the four lots which she had leased, in the beef cattle raising operation which was managed by the defendant: CB 111[183].
There is little detail regarding those arrangements. The only formal documentation adduced on the hearing regarding the leasing arrangements was: 1. the Baker Family licence for lots (b), (c), (g), (h), (j) and part lot (o): CB 110[177], 945-948; and 2. a lease to Greg Wall and Sally Wall for three years, dated from 1 October 2020 to 30 September 2023Ior lots (d) and (e) and part of lot (a) (Wall lease): CB 110[177], 970-987. The plaintiff also referred to an email from Dillon & Sons in respect of a lease of lot (k): CB 110[177].
Under the Baker Family licence, the licensee had an obligation to maintain fencing on the property to a suitable standard to accommodate the use: CB 947 [cl 20].
Under the Wall lease, the permitted use was agistment of cattle: CB 972. Under the lease, the lessee had obligations (CB 978-979): 1. to manage the land in a proper and husband like manner and preserve and maintain the land in a proper and productive state (cl 10.1.1); 2. to maintain internal fencing on the land in good and substantial repair (cl 10.1.12); and 3. to keep all parts of the land which were cleared at the date of the lease clear of suckers, scrub, saplings, woody weeds and undergrowth (cl 10.1.14).
Mr Moxey was unable to precisely identify which lots were leased to Peter Moxey and Diane Moxey (the Moxeys): T 368. The defendant, whilst deferring to what he thought was Mr Moxey's superior knowledge, gave evidence suggesting that the area leased to the Moxeys was the three lots west of Monkerai Road, being lots (d), (a) and (e), and that the lease was for about six years: T 272.5-44. He intimated that the leased lots were not all leased separately as it was too much hassle to do so: T 281.156-120.
As I will set out further below, it is the plaintiff's case that he spent substantial time and money maintaining the leased lots over a number of years.

[15]

Application for probate and appointment of an interim administrator

On 10 September 2021, Mr Gowing renounced probate of the last Will.
Following correspondence between the parties' respective solicitors, the parties made a joint application for probate by summons dated 28 June 2022 and signed by Mr Doyle (who, although being the solicitor for the defendant, filed the document on behalf of both parties for the purposes of making the application).
The summons was supported by the executors' affidavit as I have noted.
Having regard to the plaintiff's claims in the proceedings needing to take their course, it became evident to the parties that an interim administrator would be required to assist in the administration of the estate.
On 19 December 2022, Katelin Whitley (Ms Whitley), a solicitor based in Singleton, was appointed as interim administrator of the deceased's estate for the period up to 19 June 2023: CB 1217.
The special grant of administration was in essentially a usual form, limiting Ms Whitley's role to: collecting and preserving the deceased's assets; paying liabilities of the deceased or her estate incurred in the usual course of business; establishing and operating estate bank accounts; keeping an account of all receipts and disbursements in the administration of the estate; and appointing an accountant to keep estate records and prepare tax returns.
The orders of the Court noted the specific agreement of the parties that Ms Whitley, as interim administrator, would be requested to record farm income and all leasing income and expenses relating to the land separately between identified parcels of land which were categorised as being "Russell's land", "Kevin's land" and "the disputed land": CB 1217-1218.
The orders further permitted Ms Whitley to delegate to the defendant the selling of livestock, on the basis that he would advise Ms Whitley and the plaintiff of such sale and identify the number of livestock sold and the proceeds of sale received.
The orders also noted an agreement between the parties that an amount of $125,000 would be paid from the estate towards the defendant's costs in the proceedings. It was further noted that the defendant may apply to the Court at any time to increase the amount of the payment, both parties had liberty to apply to the Court for a different costs order at the conclusion of the proceedings and both parties shall reimburse the estate for any legal costs paid from the estate in the event that a different costs order is ultimately made: CB 1218-1219.
The orders made on 19 December 2022 (specifically, Order 4) envisage that Doyle Wilson Solicitors would be acting for the parties as executors in relation to the application for probate: CB 1218.
On 2 March 2023, a formal notation was made by Hallen J to the effect that the Court could not admit the deceased's last Will, in its present form, to probate, until such time as the rectification claim was determined: CB 1223.
On that occasion, a formal order was also made pursuant to r 7.10(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that the defendant be appointed to represent the deceased's estate for the purposes of the proceedings: CB 1224. The appointment of Ms Whitley as interim administrator was also extended until further order of the Court or the issue of the grant of probate of the deceased's last Will, whichever is the earlier: CB 1224.
Further, an order was made that, in addition to the $125,000 earlier paid to the defendant on account of his costs in the proceedings, an amount of $220,000 also be paid from the estate towards the defendant's costs, on the same terms of there being liberty to either party to apply to the Court for a different costs order at the conclusion of the proceedings: CB 1224.
During the hearing, the defendant sought, by notice of motion, further payments of money on account of his costs. I dealt with that application and on 11 October 2023 made the following orders: 1. Orders that the amount of $350,000 be paid out of the estate of the late Gloria Dawn Reeves by the interim administrator to the defendant within 7 days, on the basis that the payment is a form of interim distribution out of the defendant's entitlement in the estate and, accordingly, the amount of the payment must be taken into account in the ultimate administration of the estate by either the interim administrator or whoever ultimately administers the estate and adjustments accordingly made. 2. Notes the defendant has given a direction to pay to his legal representatives and that the payment will be made to the defendant's legal representatives trust account.

[17]

Issues

As indicated above, the plaintiff's case revolved around three forms of relief, being the construction claim, the rectification claim and the estoppel claim.
Chronologically, the evidence giving rise to the estoppel claim arises prior to the evidence bearing upon the construction claim and the rectification claim. However, the construction claim and the rectification claim were the primary claims advanced by the plaintiff. On the plaintiff's case, there was no need to pursue relief in respect of the estoppel claim if he were successful on the construction claim and/or the rectification claim.
The pleading of the estoppel claim distinguished between initial representations or "promises" (allegedly made by Jim and/or the deceased to the plaintiff from about 1969 up to 2005) on the one hand, and subsequent representations or "promises" (allegedly made by the deceased to the plaintiff from about 2006 up until her death) on the other.
The context for the subsequent representations had a genesis in the death of Jim in 2005, but was more particularly consequent upon the deceased's decision to close the Kennilworth Dairy, lease the leased lots and set up a beef cattle operation.
Specifically, according to the plaintiff's further amended statement of claim dated 7 September 2023: 1. the initial representations were those which the plaintiff says his parents made to him, in December 1969 and in late 1977, that he would receive one half of the family farm when his parents both died, described as "the initial promises": CB 78H[41]; and 2. the subsequent representations were those which the plaintiff says the deceased made to him, from about 2008, that he would receive the leased lots "when the deceased died", described as "the subsequent promises": CB 78I[44].
Mr Birtles submitted that the initial promises were repeated to the plaintiff on at least eight separate occasions between 1969 and 2005 (CB 78I[43]; POS [54(l)]), and that the deceased repeated the subsequent promises to the plaintiff on at least nine occasions between 2008 and 2020: CB 78I[45]; POS [54(m)]. Exactly how those numbers were counted is not clear to me. However, as outlined below, clearly there was evidence of repetitions of the initial promises and the subsequent promises.
Having regard to the pleadings, the evidence and the way that the case was conducted at hearing, the real issues in dispute are as follows: 1. Did the deceased have a particular dictionary such that reference to "Dinga Dee" in the last Will was necessarily a reference to the (10) Dingadee lots? (Description issue) 2. What instructions were given by the deceased to Mr Gowing and Mr Doyle regarding the making of the last Will? (Instructions issue) 3. Is the proper construction of cl 7.3(a) of the last Will that the gift of "Dinga Dee" is necessarily a reference to the (10) Dingadee lots? (Construction issue) 4. Should cl 7.3(a) of the last Will be rectified pursuant to s 27 of the Succession Act 2006 (NSW) (Succession Act) so that: 1. the words "Lot [X] in DP [XXXXXX]" are replaced with the title references to the Dingadee lots (Rectification issue - lot 1 replacement); 2. the words "Dinga Dee" are replaced with ""Dingadee" (Rectification issue - Dinga Dee replacement); and 3. the words "more particularly described as Lot [X] in DP [XXXXXX]" are deleted? (Rectification issue - deletion of lot 1) 1. Did the deceased make the initial promises and subsequent promises (together, promises) to the plaintiff regarding inheritance? (Inheritance issue) 2. Were the promises mere statements of revocable intention or were they of a binding nature? (Binding effect issue) 3. Did the plaintiff rely upon the promises? (Reliance issue) 4. Did initially Jim and the deceased, and later the deceased after Jim's death, know (actually or otherwise) that the plaintiff was relying on the promises? (Knowledge issue) 5. Was the plaintiff's reliance to his detriment, or did the plaintiff benefit so greatly through his reliance on the promises such that he would not suffer any prejudice if the expectation were departed from? (Detriment issue) 6. In the event that there is detrimental reliance by the plaintiff on the promises, what is the appropriate remedy? (Relief issue)

[19]

Approach to evidence

In New South Wales, s 140 of the Evidence Act 1995 (NSW) provides: (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account - (a) the nature of the cause of action or defence, and (b) the nature of the subject‐matter of the proceeding, and (c) the gravity of the matters alleged.
In GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857, Kiefel CJ, Gageler (as his Honour then was) and Jagot JJ, in the context of considering whether there should be a stay of proceedings, addressed comments to the issue of how courts grapple with conducting a civil trial fairly, including the assessment of evidence which involves the recollection of events which occurred long in the past. Their Honours stated (footnotes omitted): 57. Section 140(2)(c) of the Evidence Act reflects the position of the common law that the gravity of the fact sought to be proved is relevant to "the degree of persuasion of the mind according to the balance of probabilities". By this approach, the common law, in accepting but one standard of proof in civil cases (the balance of probabilities), ensures that "the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved". 58. The common law incorporates other principles in recognition of the fact that, in the adversarial system, cases are always decided within the evidentiary framework the parties have chosen and are often decided on incomplete evidence. The legal maxim that "all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted" acknowledges "the problem that in deciding issues of fact on the civil standard of proof, the court is concerned not just with the question 'what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision'". 59. Common law courts have developed techniques addressing the problems in civil trials associated with the recollection of events which occurred long in the past. For example, the warning which Longman v R said may be required in a criminal trial involving events in the distant past has a civil law equivalent. Watson v Foxman is frequently cited because of its continuing importance in identifying that ordinary human experience exposes that human memory is "fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time".
The Court scrutinises very carefully a claim against the estate of a deceased person. It is not that the Court looks on the plaintiff's case with suspicion and as prima facie fraudulent, but it scrutinises the evidence very carefully to see whether it is true or untrue: Plunkett v Bull (1915) 19 CLR 544 at 548-549 per Isaacs J; [1915] HCA 14.
The frailty of human recollection is well-known. In Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, Gleeson CJ, Gummow and Kirby JJ stated as follows (footnotes omitted): 30. It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana"): "… I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour." 31. Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.
Thus, where possible, evidence should be approached and weighed having regard to objective surrounding facts which are either undisputed or established by contemporaneous documents and the inherent probabilities of life as they bear upon the events: Horn v GA & RG Horn Pty Ltd [2022] NSWSC 1519 at [672].
It may also be of assistance to assess and weigh the evidence, not only by reference to its immediate context, but also in the context of the total evidentiary mosaic in the case: Wild v Meduri [2023] NSWSC 113 (Wild v Meduri) at [336] per Hallen J.
A particular difficulty in this case is that there are very little contemporaneous documents that bear upon the conversations and promises said to have occurred as between the plaintiff and his parents, and in particular with the deceased.
In light of that, my approach has been to assess the evidence of the plaintiff having particular regard to such contemporaneous documents that exist, testing in cross-examination, any prior inconsistent statements, evidence of other witnesses addressing conversations with the deceased and the inherent probabilities of life.
As I note below, I was assisted by the cross-examination in the proceedings and, in particular, by the very capable cross-examination by Ms Fendekian. Ultimately, albeit ironically, through that capable cross-examination, there was a body of evidence (in particular, from the plaintiff and his two sons, Andrew and Stuart) which was helpful in persuading me that the promises on which the plaintiff's estoppel case relies were in fact made by the deceased.

[21]

Plaintiff

The plaintiff was cross-examined over three days (T 26-36, 41-64, 70-149, 152-167). He, as Ms Fendekian readily acknowledged, is a man with impressive academic credentials. Even the defendant, who was not enamoured of his brother, acknowledged that it was clear that the plaintiff "was going onto higher education because he was a brilliant student" and he applied himself "to his studies": CB 260[7]. Some witnesses have a 'memory like a sieve', unable to hold all the content of much of what is observed or learned. The plaintiff generally impressed me as someone who had the substance (if not necessarily the precise detail) of many of the events he recounted relatively well-embedded in his memory.
The plaintiff was, in my assessment, attentive to the questions, measured and careful without being overly cautious. He, generally speaking, did not engage in debate, nor unnecessarily volunteer information.
The plaintiff's evidence includes numerous accounts of alleged conversations, some over 50 years ago, with persons who are now dead. Ms Fendekian submitted that the key conversations on which he relies are not corroborated by any other witness and contended that uncorroborated evidence of this kind is to be approached with considerable caution, citing Wild v Meduri at [313]-[322] (DCS [142]). She also noted (at DCS [32]) that, in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) at [22], Leggatt J (as his Lordship then was) cautioned that: Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.
Specifically, Ms Fendekian raised several matters bearing upon his recollection.
First, Ms Fendekian submitted that the plaintiff under cross-examination exhibited a high level of confidence in his recollection of what his parents allegedly said to him in various conversations, yet in several instances failed to reliably recall what, if anything, he said in response. She cited examples at DCS [33]-[34(a)] (lack of response criticism).
Secondly, Ms Fendekian criticised the plaintiff's intransigence of insisting that he had a clear recollection of some parts of conversations but other evidence showed his recollection was unreliable (mistake criticism): DCS [33]-[34(b)]. I will address this matter first and deal with the lack of response criticism after that.

[23]

Lack of response criticism

The lack of response criticism, Ms Fendekian submitted, speaks to the fallibility of the plaintiff's memory, and the unreality of his insistence that he has a clear recollection of other parts of the same conversation.
I have considered the submission. However, whilst accepting the plaintiff's recollection was not perfect, I nonetheless consider that it was substantially correct and reliable.
The tenor of the cross-examination in relation to the lack of response criticism was that it was unusual that the plaintiff could recall what his parents had said but he made no response to their statements - the likely explanation or inference being that the plaintiff had no real genuine recollection of what occurred.
A brief example will illustrate this. The plaintiff was questioned about a conversation with his parents, said to have taken place in early 1990, regarding the prospect of them purchasing further property so that the landholding would be big enough to, eventually, allow each of the plaintiff and defendant to run their own separate farms: CB 100[122]. At T 99-100, the plaintiff's cross-examination proceeded thus: Q. But why would your father have said, "We need to make sure the place is big enough so that you can each run your own separate farms", why would he have said that do you think? A. Again, it's, it made sense. Q. What did you say? A. I don't recall what I said. Q. You don't recall what you said? A. No. Q. Right. Because it was a long time ago? A. Not because it was a long time ago. It was not something that required me to, I didn't regard it as something that required me to make a response. It was, I regarded it as a statement of fact by him. Q. Because your mother then says, apparently, "That's right. Each place needs to be big enough so that you can each make a go of it separately"? A. Yes. Q. So what did you say in response to this? A. I didn't respond. Q. You didn't respond? A. No. Q. You didn't say anything? You didn't agree? A. No. Q. You didn't disagree? A. I mean I didn't agree, didn't disagree, no. Q. You just sat there? A. I would have probably - again, I don't recall what I did - but I know I didn't make a response. I didn't regard it as necessary to make a response. It was them stating what they stated. It was what they wanted to do. Q. But you didn't express a view about wanting to run your own separate farm? A. That, that obviously was a desirable outcome, but I didn't see the need to make a response to those statements.
A number of observations may be made about the lack of response criticism.
One observation is that the plaintiff did not claim he had perfect recall on all occasions. He indicated that he could recall conversations with clarity but not precision: T 101.41-102.43.
A second observation is that the fact that a witness cannot recall precise words used, and the specific occasion on which words were used, does not mean that the person's memory of the substance or "gist" of what was said must be rejected: Gan v Xie [2023] NSWCA 163 at [119] per White JA (Simpson and Basten AJJA agreeing at [126] and [127], respectively). Nor does it mean that the recollection is necessarily unreliable.
A third observation is that there were reasons which arguably make explicable the plaintiff's lack of response. In this regard it is appropriate to cite a few examples of the evidence and refer also to Mr Birtles submissions on the lack of response criticism.
In the mistake criticism example cited above (when the plaintiff, Stuart and Jim were spraying woody weeds along Carowiry Creek on lot (d)), the plaintiff gave evidence that Jim made a statement: "Keep going. What we are doing is worthwhile. This will all be yours one day."
Ms Fendekian probed the plaintiff about this: T 107.28-109.40. The cross-examination was in part (T 109.24-40): Q. So that's not what I'm interested in. What I'm interested in is what the conversation was and what you remember. A. I remember my father saying those words and I remember we kept going. Q. But you don't remember what, if anything, Stuart said? A. No. Q. And you don't remember what, if anything, you said? A. No. Q. I put it to you that you don't remember with any clarity that conversation at all? A. I do remember that conversation. Q. I put it to you that your father never made the representation, "This will all be yours one day", as you set out there in paragraph 125? A. He made that statement.
Ms Fendekian expressed (non-verbally) some incredulity regarding the plaintiff's lack of response.
The plaintiff was also non-responsive to Jim's statement regarding the closing of the Dingadee Dairy (T 115.40-41).
A related example included a conversation between the plaintiff and the deceased wherein the deceased made a statement to which there was no direct response. The plaintiff recounted a statement by the deceased, made in December 2008, that "[t]he leased areas will be yours": CB 111[184]. He was cross-examined about this, which relevantly included the following (T 131.19-41): Q. You didn't respond in any way to your mother's actual comment that the leased areas would be yours? A. No. Q. Do you think she might have thought you probably didn't want them, didn't express any enthusiasm or gratitude or appreciation or anything at all in response to that comment? A. No, that didn't occur to me that she would react that way. Q. As I understand your evidence, you ignored the comment and just kept talking about the maintenance works that you've been doing, is that your evidence? A. Yes, I, I kept talking about the maintenance work that I was doing. Q. And you ignored your mother's comment? A. It registered on, on, it certainly-- Q. You didn't acknowledge it to her in any way? A. Other than just continuing to talk about what I was doing. Q. I put it to you that the representation that the leased areas will be yours was not made in those terms as you've set out there in paragraph 184? A. It was made.
Ms Fendekian, whilst accepting that the plaintiff's lack of response might to some extent be explained by his personality, doubted that explanation and indicated that the plaintiff was capable of animated response on occasions (referencing his response to the postdoctoral fellowship opportunity: CB 87[39]). She thus intimated that the plaintiff's lack of response to statements by the deceased had some explanation other than a conservative personality, namely a lack of true recollection: T 427.46-428.35.
Mr Birtles had a number of responses to the lack of response criticism.
First, Mr Birtles submitted that the important parts of the conversations were what was communicated to the plaintiff; what he said back (if anything) was less important to him. He contended that the conversations occurred at critical junctures of the plaintiff's life, when he was making decisions about what he should do with his education, his career and living arrangements, and he remembered those conversations because they were important to him: T 404.35-41, 405.3-6.
Secondly, Mr Birtles submitted, in response to a query from me, that part of the relationship between the parents and the sons is that the plaintiff and the defendant did what they were told to do. He submitted that the defendant had given evidence that he just did what he was told (see e.g. T 270.8, 279.30-31): T 404.44-405.2.
Thirdly, in response to another query by me, Mr Birtles accepted that it may simply have been part of the plaintiff's personality: T 405.8-10.
Human relationships are extraordinarily varied. The dynamic of any interaction between two people will be influenced by many factors, including personality, upbringing, the nature of any occasion and the presence or absence of others. Accepting that there are some social or relational norms which might inform and explain how people respond to each other in discussion, it is common experience that there may be many reasons why people do not respond to matters that are said.
A classic example in the realm of farming proprietary estoppel cases is the decision of Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776 (Thorner v Major). In that case, the claimant, Mr Thorner, was a Somerset farmer who, for nearly 30 years, did substantial work without pay on the farm of his father's cousin, the deceased. The primary judge found that, from 1990 until his death in 2005, the deceased encouraged the claimant to believe that he would inherit the farm and that the claimant acted in reliance upon this assurance. On appeal the decision was overturned. On further appeal to the House of Lords the decision was reinstated.
The appeal to the House of Lords focused upon various issues. However, one of the issues was the requirement of certainty in the promise said to found the estoppel.
Lord Hoffmann observed a distinctive feature of the case, as had been remarked in the Court of Appeal, was that the representation of inheritance was never made expressly but was "a matter of implication and inference from indirect statements and conduct", commenting at [2]: It consisted of such matters as handing over to [the claimant]… an insurance policy bonus notice with the words "that's for my death duties" and other oblique remarks on subsequent occasions which indicated that [the deceased] intended [the claimant] to inherit the farm.
The fact that the deceased had actually intended the claimant to inherit the farm was irrelevant. The question was whether his words and acts would reasonably have conveyed to the claimant an assurance that he would do so. The fact that the deceased spoke in oblique and allusive terms did not matter if it was reasonable for the claimant, given his knowledge of the deceased and the background circumstances, to have understood him to mean not merely that his present intention was to leave the claimant the farm but that he definitely would do so: Thorner v Major at [3] per Lord Hoffmann. Indeed, it was noted that there was a close and ongoing daily relationship between the parties: Thorner v Major at [8].
The deceased was described as taciturn and in the habit of saying very little, and when he did, it was by oblique remarks. Even though clear and unequivocal statements played little or no part in communications between the two men, they were well able to understand one another: Thorner v Major at [23]-[24], [26] per Lord Rodger of Earlsferry. The primary judge had received significant evidence that they were taciturn and undemonstrative men: Thorner v Major at [59] per Lord Walker of Gestingthorpe, [80] per Lord Neuberger of Abbotsbury.
In this case, a particular aspect of how the plaintiff presented in giving evidence was that, at times, (in my assessment) his evidence appeared somewhat (though not completely) devoid of emotion with flat affect. However, I did not perceive that as necessarily being untoward. I suspect that part of how the plaintiff presented was at least explicable by personality. He struck me at times as being reserved, task focused and very ordered in thinking. When asked about his achievements, he was self-effacing (T 153.39-44): Q. Your PhD was submitted without amendment? A. Correct. Q. Which is quite remarkable and impressive from what I understand, do you agree? A. That's for others to judge.
Particularly in light of the defendant's indication that, at least for his part, he just did what he was told, I did not consider that it was necessarily unusual that the plaintiff would not respond, or not directly respond, to his parents in a particular way.
Ms Fendekian's reference to the plaintiff's animated response to the postdoctoral fellowship opportunity was an isolated incident. The context was different. He was speaking to his university professor, not to his parents.
In assessing the plaintiff's evidence about conversations with his parents, and Ms Fendekian's criticisms of the plaintiff's recollection, I'm mindful of the fact that there are other witnesses whose evidence bears upon the likelihood of the promises being made.
As I note below, the defendant himself was "very much aware of" the plaintiff's inheritance expectations. Each of Andrew and Stuart also deposed to conversations with the deceased in which she indicated intentions to gift the plaintiff property, in particular the leased lots.
Leaving aside submissions as to reliance and "countervailing benefits", there was no real dispute that the plaintiff had forgone opportunities to study medicine at Sydney University and to do postdoctoral work at Florida State University.
There was also no real dispute that the plaintiff had done some degree of maintenance work on the leased lots. Indeed, the defendant's position was not so much that he had not done work, but rather that he did not have authority to do it.
I make further comments on the plaintiff's evidence below. However, I generally regarded him as a truthful and substantially reliable witness.

[24]

Stuart

Stuart was cross-examined for a little over an hour on the morning of the fourth day of the hearing. Like his brother Andrew, Stuart impressed me as a careful, thoughtful and reliable witness. Ms Fendekian put to him generally that his recollection of conversations deposed to in his affidavit did not occur in the terms to which he deposed. He rejected that contention: T 235. She then tested Stuart in detail on the conversations: T 235-252.
In closing, Mr Birtles submitted that Stuart had a good recollection of the matters about which he was cross-examined: T 404.12-13.
Ms Fendekian advanced, meanwhile, that Stuart's evidence of alleged events and conversations from many years ago, particularly as to the content and location of conversations, should also be approached with caution. She cited examples from the 1990s, three months after Jim's death in 2005, 2008, 2010, 2014 and 2020: DCS [35]-[36]. I accept that caution is required. Nonetheless, I am persuaded that his recollection was substantially correct in all material respects.
Ms Fendekian cited a conversation that Stuart had with the deceased in 2009 (at CB 185[30]) as an example of him downplaying the deceased's financial literacy. She referred to instances of statements by Mr Gowing, Mr Doyle, Mr Moxey and the defendant to refute any suggestion that the deceased was not capable of managing her own financial affairs: DCS [37]. The example does not cause me to doubt Stuart's evidence. Stuart was reciting a conversation he had with the deceased regarding investments and a share buyback. He was not asserting that she lacked ability to manage her own financial affairs. An ability to manage one's own financial affairs does not mean that one understands or seeks to understand details about the niceties of certain investments. None of the examples given by Ms Fendekian demonstrates precisely the deceased's understanding of financial investments, as distinct from her ability to give instructions, which I do not doubt.

[26]

Defendant

The defendant presented as an entirely different character to the plaintiff.
On occasion, he volunteered information without being questioned about it: e.g. T 273.35-274.22. He also volunteered information that was non-responsive to questions, or at least he diverted readily to providing other unrelated information: T 279.25-41, 280.30-46.
The defendant volunteered on occasion that he just did what he was told (by his parents) and had no choice: T 270.9-14; 279.30-31.
There were certain aspects of the defendant's evidence which I accepted, such as in relation to the beef cattle operation which I refer to below.
Ms Fendekian submitted that the defendant gave his evidence with candour: DCS [43]. It is correct that the defendant's evidence was given forthrightly. Candour usually connotes honesty and sincerity. However, there were aspects of the defendant's evidence that did not have that hallmark and which I do not accept.
The defendant asserted that the plaintiff's relationship with the deceased was strained, stating (CB 267[62]): Gloria's relationship with the Plaintiff and his family was strained from the time of Jim's death in February 2005. Although she was always very respectful towards the Plaintiff and his family, she said things to me that indicated she was not always happy with the way Russell acted. On many occasions Gloria said words to the following effect to me: "Your brother is just too selfish. He is untrustworthy" "Your brother is too ruthless, too ambitious." "Your brother wants to put me in a nursing home but it is not going to happen".
I do not accept the defendant's evidence that the deceased made the above statements. No other evidence in the proceedings gave cogent support to a finding that the deceased would likely have said such things about the plaintiff.
Interestingly, in parts of his evidence, the defendant did not deny that the plaintiff had inheritance expectations. When examined about the plaintiff's building of a house on lot (c), he stated (T 268.14-19): Q. And you're aware that your brother and his wife built their home on lot [XX]? A. Yes. Q. Were you aware of your brother's inheritance expectations after he built his home there? A. I was very much aware of his expectations because he made it quite clear that he was coming back to take over.
The defendant then gave the following evidence that was curious (T 268.22-32): Q. Did you consider your brother at all when you assumed you would inherit most of the farm? A. I was thinking he was going to be a threat, yeah. So did Gloria. Q. Your brother's relationship was not strained with Gloria or Jim before your father died? A. I was pretty - I think it was on pretty shaky ground. Q. Well you suggested in your affidavit that it became strained after your father died? A. Yeah, it became worse.
Later on, the defendant was cross-examined about his relationship with the plaintiff, as well as the relationship between the plaintiff and his family and the deceased, as follows (T 283.29-43): Q. You give evidence in your affidavit that you and the plaintiff did not get along either as children or adults? A. No truer words spoken. Q. You've also said in your affidavit that the relationship between your mother and your brother and his family was strained from the time of your father's death in February 2005? A. And it got worse. Q. You accept, don't you, that if you and your brother don't get along, your brother would be unlikely to visit your mother when he knew you would be at home? A. When my brother got something in his bonnet, he'd come over whether I was there or not or he would ring up. And I'll tell you another thing, abusive too.
When cross-examined further about the statements that the defendant alleged the deceased had said, he continued in the same vein (T 285.5-39): Q. Well you haven't said when the conversations occurred? A. Okay. I'll try, I'll try and get a - yeah. That's right, after Jim passed away, yeah, after Jim passed away, his wife - I was living up in the other house. His wife came over to stay with mum for a couple of, a couple of days. And then, about two, two, two, three nights afterwards, I had dinner and went back home. And about 9 o'clock, I suppose, I noticed a vehicle going up Majors Creek Road. I thought, "Well that's funny". So I rang up mum to see what was going on and a very distressed mother said to me, "Barb has left me". I said, "What?" So I immediately just jumped in the vehicle and went down to see what was going on. She was in a very distressed state. Apparently there had been some talk about putting her in a nursing home. She was in a very distressed state. And, yeah, and not good. It was not a very pleasant episode. Q. You said that was shortly after your father died? A. This was, this was about two or three days after. Yeah, it was about 9 o'clock at night. They waited until, they waited until I'd left and then they - from all accounts they preyed on her vulnerability, because they were dead determined, they were dead determined to put her in a hospital, marginalise me or get rid of me in any way possible so he could take over. And I can't be any - where's the bible? I'm under oath. I can't be any more truthful than that. And I tell you what, things got a lot damn worse too. It was, it was shocking. Q. You saw your brother as a threat? A. That and more. Q. Your mother didn't say these things about your brother at all? A. She said he was ruthless, he was selfish, and she said a few other things too, but I'm - and I tell you what, it took a lot of goading for mum to come out with that. And I tell you what, if you really want to press this argument, this conversation is going to get pretty bloody - sorry, pretty hairy. Because there's a, there's a lot of ill feeling there, a lot of ill feeling. And you'll open up a can of worms, I promise you.
The last response was said in a tone of rancour.
A little later, after questioning about the 2006 Will, the following exchange occurred (T 286.48-287.3): Q. This map-- A. I think you're digging yourself deeper, mate. Really, seriously, this is - look honestly, I warned, I'll tell you now, I warned my legal team that if we go a certain path, if we go a certain path, this is really going to get nasty. I'd pull out. Which my brother's going to look, he's going to look, he's going to look hideous. Anyway, what's this map for?
The last response was said in a tone of barely controlled hostility.
The defendant then became unnecessarily argumentative, to the point where I asked him to confine himself to answering the questions (T 287.12-42): Q. And so what your mother has done in that will on page 606 is to give you the two house blocks and then divide the balance of the land equally between you and your brother? A. If that's what the will says. If that's what the unsigned will says. Q. And she would not have done that if the relationship between her and your brother is as you've described to the Court? A. Well do you want to play the role of my mother? I mean, are you a mother? Q. I'll ask the questions. Can you answer the question yes or no, or not? A. Look, I can't answer for how mum thought and felt between me and my, and my brother, right? I mean the woman had just lost her husband. She was still finding her way. You know, show the, show the poor woman some, you know, space. And actually, you're sounding like my brother, actually. It's something he'd do. HIS HONOUR Q. If you can just confine yourself to answer-- A. Yeah, I'm sorry. I'm sorry, I'm sorry. Look, your Honour, I'm sorry, your Honour. Q. --questions and please don't-- A. But look seriously, seriously, there is really, there is really bad feeling here. And I'm trying, I'm trying to contain it. Q. Well if you can just confine yourself to answering the questions-- A. Yeah, sorry. Yeah, I'm sorry. Q. --please, without making comment.
Then, towards the end of the cross-examination when the defendant was questioned about Mr Gowing's contact with himself and the deceased about giving him information on the title details of the deceased's properties, the following exchange occurred (T 291.49-292.9): Q. Yes. It appears that Mr Gowing had previously asked Gloria for the title details of properties she owned? A. Yes. Q. And it appears that Gloria has not given Mr Gowing details of the properties she owned at this stage? A. Do you get everything on time? I certainly don't. Q. Do you agree or disagree with what I've put to you? A. Well no she still hasn't, she still hasn't got it, but I mean for heaven's sake man, she's 80 years old. This is elders abuse, Jesus.
The defendant was clearly embittered towards the plaintiff.
Whilst Ms Fendekian sought in submissions to neutralise Mr Birtle's criticisms of the defendant (at DCS [44], PCS [23], respectively), I find that the defendant's evidence was tarnished in the above respects and influenced by his views of the plaintiff. He was argumentative and volunteered information not directly responsive to some questions in the respects I have indicated above. To the extent that there is conflict in the evidence as between the plaintiff and the defendant, unless indicated otherwise, I prefer the evidence of the plaintiff.
The defendant was not asked what he meant by the plaintiff "was going to be a threat". Nor did he elaborate on it. Nonetheless, it is particularly strong language for the defendant to have used. Whatever the defendant might have thought about the plaintiff's actions or conduct, there is not a skerrick of a suggestion in any of the evidence that the deceased regarded the plaintiff as, or had any expectation that he would be, a "threat". To the extent that the defendant suggested that the deceased thought that was the case, I reject the defendant's evidence.
Further, the notion that the plaintiff's relationship was strained with Jim or the deceased is unsupported by any other witness.
I reject the defendant's evidence otherwise. Having watched the plaintiff being cross-examined across three days, I did not gain the impression that the plaintiff was given over to threatening comments or conduct. My impression was otherwise. Ironically, out of the two parties, it was the defendant (who was cross-examined for much less time, being just under two hours), rather than the plaintiff, who exhibited the antipathy set out above.
The defendant does not dispute that the plaintiff performed maintenance work on all of the leased lots. Rather, his evidence was that the plaintiff was not authorised to do it: T 282.40-50. Specifically, he alleged that the deceased "didn't give the okay" and that "[t]he first time she knew of it was when he did it": T 283.4-6. The defendant elaborated further, asserting that the clearing work that the plaintiff did was not checked with the people who leased the properties: T 283.14-27.
It is true that there is no specific evidence by the plaintiff of any conversation with the deceased by which he said he was about to start maintenance work on the leased lots. However, I accept the plaintiff's evidence that the discussions he did have with the deceased, informing her of work he had done, were not met by the deceased with anything other than ratification and encouragement for the plaintiff to continue such work. I also accept that the work carried out by him in April 2020 on lots (h), (j) and (k) was authorised by the deceased (who paid for the herbicide and diesel fuel used in conducting that work) and reject the defendant's assertion otherwise: CB 116[208], 135[53], 279[134].

[29]

Credit and reliability - other witnesses

Mr Addison was cross-examined regarding his affidavit evidence of a conversation which he had with Jim in which Jim said that the plaintiff would end up with property and that the defendant would not be able to buy Dingadee. Mr Addison indicated in cross-examination that he understood Jim was suggesting that the plaintiff might take over the dairy business at Dingadee, and that he had some concern about whether the defendant would have the capacity to purchase Dingadee: T 178. When pressed about why Jim had expressed that concern, Mr Addison indicated as follows (T 178.30-47): A. Well if I take it off the conversations that I had with him, he didn't see Wayne being willing to continue dairying, and therefore he - and, and he saw that his wife would favour Wayne in terms of Kenilworth. Does that help answer your question? I mean there were myriad - not myriad, but some - conversations about his view of Wayne. But I don't think they're anything you're terribly interested in. Q. What did you mean when you said that he'd indicated that his wife would favour Wayne? A. Well you just have to try and understand the relationship within the family. Q. Which was what? In your view from what you observed? A. Well Jim, Jim was an extraordinarily hard worker, and really brought himself up from nothing. His wife, who was a friend of my mother's and knew my wife, was not really interested in continuing dairying, or being involved with the dairy. And of course Wayne lived with them, Russell didn't. And I mean I think that was a reasonable view that he took, yeah, okay, Russell can have Dingadee and Wayne can have Kenilworth.
Mr Addison confirmed that, prior to Jim's death, all instructions to him and his firm came from Jim, they never received instructions directly from the deceased and she was never in attendance when Jim provided instructions: T 180. Mr Addison gave his evidence in a relatively clear and uncomplicated way. I accept his evidence.
Mr Shepherd had given evidence in his affidavit that, during the time that he had worked for Jim and the deceased, they had two separate farming operations, being Kennilworth and Dingadee: CB 179[19]. The only point on which Mr Shepherd was cross-examined was to clarify that his reference to "two separate farming operations" was a reference to the dairy businesses that they had on each of those parts of the farm, which he confirmed. Mr Shepherd added, in response to a further question, that it was usual that cows from Kennilworth Dairy would graze on the land north of Stroud Hill Road: T 184. Precisely what was meant by that was not further clarified. However, I note that a small part of the lots falling within the description of the Kennilworth lots, being part of lot (o) together with lot (m), lies north of Stroud Hill Road. I accept his evidence.
Mr Armstrong gave evidence which was effectively limited to the period from 1970 to 1974 when, on two or three occasions, he attended the family farm for approximately two to three weeks each time during university holidays. Recalling those occasions, Mr Armstrong made several observations, including that he did not recall the defendant assisting in the dairy or milking the cows during the periods that he stayed there: CB 204[14]. He accepted that the events were some 50 years ago and that his observation might be a poor memory: T 186. Whilst I do not doubt Mr Armstrong's evidence, I consider it of little assistance to me in determining the critical issues in the proceedings in light of the other evidence.
Ms Hewitt was cross-examined regarding a conversation she recalled having with the deceased and her mother regarding the deceased's testamentary intentions. She presented as a reliable witness and I accept her evidence, which I refer to below.
Mr Dillon was cross-examined regarding his identification of the lots in respect of which the deceased had given him instructions. Subject to the concessions that I have outlined below dealing with the descriptions issue, I accept Mr Dillon's evidence.
Ms Irwin was cross-examined regarding "Dingadee Cottage" for barely two minutes. She confirmed her affidavit evidence. I accept her evidence.
Mr McMahon clarified in cross-examination that most of his dealings with Jim and the deceased were with Jim. In Mr McMahon's words, Jim was the "prime mover" in respect of most of the dealings he had, but when it came to signing contracts and the like the deceased came in and attended upon him for that purpose. He indicated that, prior to Jim's death, he had not ever separately taken instructions from the deceased in relation to the matters in which he acted for them. His instructions in the first instance came from Jim and then from both of them when the occasion arose: T 201-202. The one qualification to that was when Mr McMahon received instructions solely from the deceased in relation to a matter concerning a car accident in which she had been involved: T 202.
Mr McMahon gave his evidence in a clear and straightforward way. I accept his evidence.
Angela was cross-examined principally in relation to the descriptions issue. The cross-examination was brief: T 209-211. She impressed me as a careful and reliable witness. I accept her evidence.
Mr Moxey was briefly cross-examined regarding the agistment of part of the Dingadee lots to the Moxeys. He was unable to identify by reference to MFI-2 which lots were agisted, it being a personal arrangement between the Moxeys and the deceased. He did not know whether there was a written document recording the terms of the agistment or for how long the land was agisted, though thought it was for approximately five to six years: T 368. He clarified, in relation to his evidence that the defendant assisted the deceased in managing the "property", that he was referring to the defendant's assistance with respect to the Kennilworth property where the deceased lived: T 369. I accept his evidence.

[30]

The evidence

There was a myriad of evidence regarding the description of the various lots in the disputed land. Some of the references to that evidence is captured in the "nickname" column in MFI-2.
The plaintiff gave evidence that the cottage located on lot (h) was referred to by his parents as "Dingadee Cottage", essentially from the time of purchase at least up until the deceased advertised the cottage for rent in 2001: CB 101[129], 104[142]-105[148].
The plaintiff indicated that at the entrance to lots (g), (h) and (i), the street address being XX Monkerai Road, there is a sign which originally read "DINGADEE" and had been in place when his parents purchased the three lots in 1993. Subsequently the sign was broken, with the remnants of the sign simply showing "GADEE" (see photographs taken on 15 September 2022: CB 1178-1180): CB 132[40].
The plaintiff gave evidence that harked back to the 1950s and 60s, when he heard his mother spell Kennilworth with two 'n's: CB 118[223]-119[225].
Stuart was tested by Ms Fendekian in relation to the spelling of Kennilworth and he disputed that his grandparents spelt it with one 'n': T 252.
The defendant, meanwhile, gave affidavit evidence that, to the best of his knowledge, Kennilworth has always been spelt with one 'n', and the original spelling of Kennilworth with two 'n's was "originally a joke that my father Jim and myself played on Gloria": CB 279[138]. He further denied that the deceased ever thought that the spelling of the Kennilworth sign into the property (i.e. at the entrance of Kennilworth) was misspelt, and said that she had never said anything to him about this or suggested that the sign should be changed: CB 279[139] (responding to CB 119[225] rather than, as stated in his affidavit, to CB 118[223]). The defendant referred to a company search for the company and the deceased's driver's licence, which both spell Kennilworth with one 'n': CB 279-280[139], 988, 1154.
In cross-examination, the defendant initially disputed that the correct spelling of Kennilworth was with two 'n's: T 265.17-18. However, he has an email address with Kennilworth spelt with two 'n's. Also, his attempts at explaining that a sign he had put up in front of the deceased's homestead, which spelt Kennilworth with two 'n's, was done "as a bit of a laugh" seemed strained and unconvincing, as did his evidence which suggested that if he had to spell Kennilworth on a form to submit to a government instrumentality, he would probably spell it one way or the other: T 264-265.
The plaintiff stated that he had never heard his parents refer to the properties on the north side of Stroud Hill Road as "Yates" and that they always referred to those properties as "Dingadee": CB 134[47].
In relation to the defendant's assertion regarding the conversation with the deceased in which she proposed to call the Dingadee Dairy lot "Dinga Dee", the plaintiff indicated that the deceased had never spoken to him about that and he had never seen any document where it was spelt with two words (other than the last Will): CB 136[57].
Mr Dillon, who purchased a property known as "West Dingadee" approximately 36 years ago (prior to the hearing, as distinct from the date of his affidavit) and had been a resident of the area since 1965 and worked in the Dingadee district as a real estate agent and licenced stock and station agent for over 42 years, indicated that he had never seen, in any document, the land or any property in the area described as "Dinga Dee" (with two words): CB 171[12].
In relation to lot (d), Mr Dillon stated in his affidavit that the lot was part of "Yates' paddock": CB 173[24]. However, it was suggested to Mr Dillon that rather than that lot being "Yates' paddock", it was in fact a property purchased from Ross Haggarty. Initially he did not think he was mistaken, however, after having been shown MFI-2, he accepted that as being correct: T 192-194. In relation to lots (c) (now owned by the plaintiff) and (b), Mr Dillon had described those in his affidavit as being "Russell's paddocks". Relevantly, it appeared that he understood that Russell owned lot (b), which, subject to the terms of the last Will, is not the case.
Ms Fendekian submitted that Mr Dillon reluctantly conceded that he did not know whether the plaintiff was in fact the current legal owner of those particular lots: DCS [41]. He did not concede that his evidence was mistaken. However, this was not a reason to cause me to doubt his evidence. His evidence was simply that the deceased described the two lots as being "Russell's paddocks" (CB 173[24]). His affidavit evidence did not address legal ownership as distinct from a description by the deceased. He assumed, when asked as to why the deceased would have referred to those lots as being "Russell's paddocks", that it was because the paddocks were side-by-side: T 194.50.
Mr Dillon was also cross-examined regarding the areas that he had marked on a map (CB 173[28], 1140) as being all of the deceased's property north of Stroud Hill Road. He had indicated that the deceased referred to each of those areas as "Dingadee", although, when questioned further, accepted that occasionally she had called the paddocks other names as well: T 195-196. In re-examination, Mr Dillon indicated that, in relation to an answer that the last sentence in paragraph 28 of his affidavit was not strictly correct (that the deceased referred to each of the areas as "Dingadee"), he meant that the deceased referred to those paddocks to him as part of the Dingadee paddocks but on occasions she had called one particular paddock "Yates'": T 196.
Angela gave evidence in relation to her involvement with the deceased, particularly in her younger years. She assisted the deceased to clean the cottage (identified as being on lot (h)) which she described as "Dingadee Cottage", and indicated that she had had no less than 50 conversations with the deceased in which the deceased referred to that cottage as "Dingadee Cottage" and had never heard the deceased refer to it as "Yates Cottage". She also indicated that the defendant referred to the cottage as "Dingadee cottage" and did not ever hear the defendant refer to the cottage as "Yates cottage": CB 200[14]. In cross-examination, she indicated that everyone in her family referred to the cottage as "Dingadee Cottage", and that she had never heard the deceased refer to it as anything other than "Dingadee Cottage": T 211. She had also never heard the deceased refer to parts of the property as "Yates": T 211. Angela was also asked about the spelling of "Kennilworth" and confirmed that she had always seen it spelt with two 'n's: T 210. I accept her evidence.
Ms Irwin gave evidence that, in the mid to late 1990s, she had many discussions with the deceased in relation to the cottage located on lot (h), which she indicated the deceased referred to as "Dingadee Cottage": CB 190[7]-[8].
She indicated that she had had at least 20 to 30 conversations with the deceased in which she referred to the cottage in that manner and had never heard the deceased call it anything other than "Dingadee Cottage". In particular, Ms Irwin had never heard the deceased call the cottage "Yates Cottage", nor refer to the land which was purchased from Bert Yates as "Yates": CB 191[11]-[12]. Ms Irwin was briefly cross-examined by Ms Fendekian: T 198-199. She confirmed her affidavit evidence. I accept her evidence.
Andrew indicated that in his family he had never heard areas of land being referred to by lots or DP numbers. Rather, it was always by landmark or property name: T 213. He disputed that lots were mentioned by reference to the persons from whom they had been acquired and never heard the properties referred to as "Yates'", for example: T 213.
Andrew was also questioned and tested by Ms Fendekian regarding the conversation which, he said, occurred with the deceased in about 2011 on the Kennilworth property: CB 154-155[27]-[28]; T 218-220. It was suggested to Andrew that the deceased might have misunderstood his comment about building "a house down here eventually" (being on the Kennilworth property). He disputed that suggestion, indicating that he had been pointing to the ridge slightly past where the deceased lived, as they were standing in her eastern garden at the time: T 219. Andrew indicated that he understood the deceased's comment in reference to "the other side of the road" (being Stroud Hill Road) as referring to the "Dingadee property": T 220. I accept his evidence.
To Stuart's understanding, Jim and the deceased referred to "Kennilworth" and "Dingadee" as separate farms. He noted that there was a Kennilworth herd of cattle and a separate Dingadee herd of cattle: CB 183[11], 1134 (limited to his understanding).
Stuart indicated that the cottage on lot (h) was always referred to by the deceased as "Dingadee Cottage": CB 183[13].
Andrew was also questioned regarding the spelling of "Kennilworth". He confirmed that he usually saw it spelt with two 'n's, and the only time that he saw it spelt with one 'n' was by reference to a sign on Majors Creek Road: T 221.
Mr McMahon, whilst acknowledging that there were not many occasions where he was required to receive instructions directly from the deceased, agreed with the suggestion in cross-examination that, if the deceased wished to refer to parcels of land within her property, she would sometimes refer to them by reference to the name of the previous owner of the land from whom they had been acquired: T 203.
Mr Addison had marked on a map (CB 144[19], 1133) an area which he identified as being owned by Jim and the deceased and which they referred to as "Dingadee", being essentially the area which comprised what I have earlier described as being the leased lots. I say "essentially" because the marking on the map is a little ambiguous as to whether part of lot (o), which is north of Stroud Hill Road, falls within or outside of his marking. In any event, when challenged as to whether he really meant that the marked area was what Jim referred to as "Dingadee", Mr Addison initially asserted that that was not the case and that the whole family referred to it as "Dingadee". However, he then qualified that by indicating that he could not say what the defendant had called the area: T 180. When pressed as to whether the deceased referred to the area as "Dingadee", Mr Addison confirmed that he had heard her refer to it as "Dingadee", at least on occasions when she had come into the office, but not, as indicated above, in the context of her giving any formal instructions: T 180-181.
In relation to the spelling of "Kennilworth", Ms Fendekian cross-examined a number of the witnesses in relation to documentary material which shows the spelling of "Kennilworth" with one 'n'. That material included: 1. the probate notice in respect of the application for probate of Jim's Will, which was sent for publication on 9 March 2005, showing his address as "Kenilworth, Dungog": CB 592; 2. the company statement, issued 20 April 2006, which shows the name of the company as including "Kenilworth" with one 'n', as well as the principal place of business and the address of the deceased (in her capacity as director and secretary) on each occasion with "Kenilworth" spelt with one 'n': CB 608; and 3. the deceased's driver's licence, with an expiry date of 9 December 2020, showing her address as "Kenilworth" in Dungog: CB 988.

[31]

Findings

Different witnesses generally had different experiences in relation to how the deceased referred to particular parcels of land.
I reject the defendant's evidence that, in or around 2010, the deceased decided to describe lot (a) as "Dinga Dee". There is no evidence corroborating that. Both the plaintiff and Mr Dillon had never seen in any document the land or any property in the area described that way.
I find that the deceased referred to lots (g), (h), and (i) as both "Dingadee" and, at least occasionally, "Yates".
Overall, I am persuaded that the deceased predominantly referred to the cottage on lot (h) as "Dingadee Cottage", although I accept that there may have been some occasions on which she referred to the cottage as being "Yates Cottage".
The relevance of the description of property focuses upon how the deceased described her property and, in particular, how she described it for the purposes of instructions given for her last Will.
Ultimately, I am not satisfied that the deceased had such a fixed dictionary of phraseology that would lead to the unimpeachable outcome that the deceased's use of the word "Dingadee" would necessarily imply a reference to the (10) Dingadee lots, relevantly, for the purposes of her last Will.
The spelling of "Kennilworth" was more vexed. There was a myriad of evidence bearing upon the spelling of it. Perhaps the most compelling evidence for it being spelt with a single 'n' is the deceased's driver's licence.
The plaintiff contended that the setting out of the deceased's address in the last Will being "Kenilworth, Majors Lane, Stroud Road, Dungog" (CB 873) was incorrect, and that the correct address description is "Kennilworth, [XX] Majors Creek North Road, Stroud Hill NSW 2420" (CB 118[222]-[223]).
The defendant was cross-examined about this issue. He asserted that the way that the address had been written in the last Will was a "version" of it, but appeared to accept that if the deceased was asked to state her address she would state it as being "[XX] Majors Creek North Road, Stroud Hill": T 263.1-.37.
Ultimately, it does not really matter. No case for rectification was advanced in respect of the spelling of "Kennilworth" in the last Will. Neither Mr Gowing nor Mr Doyle gave evidence regarding the deceased's spelling of "Kennilworth" in her instructions for the last Will. Thus, even if the deceased had a preference for spelling "Kennilworth" with two 'n's, it is not a matter in respect of which I need to make a finding.

[32]

Some events leading to the making of the last Will

On 8 March 2005, approximately a month after Jim's death, Mr McMahon had a conference with the deceased during which he took some preliminary instructions from her regarding making a new Will: CB 590-591.
It is evident that, at the time of that conference, Mr McMahon had advised the deceased in relation to the matters that needed to be attended to in order to obtain probate of Jim's Will. In particular, he had a conversation with her in which he asked whether she knew which land titles were in Jim's own name. She replied "[n]o, I wouldn't know that" and, to assist in establishing title to the land, Mr McMahon indicated that he would work on the basis of some title deeds held in his firm and at the bank, and requested the deceased to bring in some council rate notices: T 200.
Mr McMahon confirmed in cross-examination that, on that occasion, the deceased seemed unprepared to make a final decision about how she wanted to dispose of her estate. Accordingly, he suggested to her that, if she was not ready to make a final decision then, she might consider doing what he described as a "holding pattern will" leaving half of her estate (or perhaps her property) to each of the plaintiff and the defendant. However, the deceased did not wish to make a Will at that time and so that avenue was not progressed: T 206.45-207.8.
Following the conference on 8 March 2005, Mr McMahon had a telephone conversation with the deceased on 8 April 2005: CB 164[38], 593-594. At that stage, she had not yet spoken to the plaintiff and the defendant in relation to her Will.
Mr McMahon subsequently made enquiries with Westpac and Dungog Shire Council to ascertain all of the landholdings of Jim and the deceased by reference to lot and DP numbers. The deceased did not provide instructions to him by reference to lot and DP numbers other than in the form of the rate notices (which it appears she did provide).
In January 2006, Mr McMahon received instructions from the deceased in relation to her Will (being the 2006 Will): CB 164[44].
On 9 February 2006, it appears that the deceased attended upon Mr McMahon to sign the 2006 Will. Although Mr McMahon does not have a signed copy of the 2006 Will, the draft that he retained on his computer is, he indicates, consistent with the instructions received from the deceased and recorded in his handwritten file notes: CB 166[55]-[57].

[33]

The engagement of Mr Gowing

In June 2009, the deceased, apparently on a recommendation by Mr Badgery, contacted Mr Gowing and inquired whether he would be willing to take on her accounting work which, at that stage, involved some issues regarding dairy industry deregulation compensation: CB 244[4].
Mr Gowing first met the deceased and the defendant on 24 June 2009, at which point he was asked to assume responsibility for the deceased's accounting work: T 296.
On 25 June 2009, Mr Gowing provided the deceased with a form of retainer letter (CB 753-755), which she subsequently signed.
From the time of his engagement up until the deceased's death, Mr Gowing advised and assisted her by preparing financial statements and tax returns.
One of Mr Gowing's first tasks was information gathering: T 296. In the context of Mr Gowing taking on the work, he sought to get an understanding of details of the properties which the deceased and Jim had purchased, including the dates of purchase and purchase price, to assist him in advising in relation to capital gains tax.
It appears that, initially, the deceased was unable to give Mr Gowing particular details about those matters.
In December 2009, Mr Gowing wrote to the deceased's then solicitor, Felix Prentice from WJ Enright & Prentice (which law practice had encompassed or subsumed the firm McMahon & McMahon) of Dungog: CB 245[9]. Mr McMahon had acted for Jim and the deceased in relation to various matters and, in particular, in relation to the purchase of property in the period from the late 1970s until 2006: CB 161[20]. Mr McMahon acknowledged that most of his dealings were with Jim: CB 161[20].
Mr Gowing also sought to obtain information from the deceased's previous accountant, Addisons, in relation to dairy deregulation (CB 245[10]) and, as I understand it, also in relation to the purchase of the lots which form part of the deceased's estate.
On 2 March 2010, Mr Prentice sent to Mr Gowing a valuation report that had been prepared by Mr Brorson in respect of four lots: CB 245[11], 803, 575-587. The valuation had been prepared for assessing the fair market value of properties said to form part of the "Kennilworth" agricultural holding (CB 822) as at the date of Jim's death on 4 February 2005. The valuation was in respect of lots (k), (p) and (v) being three of the above-mentioned 11 Kennilworth lots. Another lot bearing title reference D/XXXXXX, said to be part of the Kennilworth agricultural holding, was included as part of that valuation. That particular lot appears to be identifiable as being lot (q): see CB 575, 577, 1112, 1268 (having an area of 86.45 ha).
On 3 March 2010, Mr Gowing emailed the valuation to the deceased for her information, noting that it would help in identifying the properties but not with the cost base at the time of purchase: CB 245[12], 831.
In March 2010, there was subsequent correspondence by Mr Gowing with various persons in which he lamented that he only had a very limited picture of the deceased's landholdings. The deceased had told him that the aggregate area of her landholdings was close to 2000 acres, however he only appeared to have awareness of a portion of the holdings and was concerned as to how he could adequately deal with CGT issues: e.g. CB 834.
On 12 March 2010, there was also an initial conversation between Mr Gowing and the deceased (without Mr Doyle) about "the benefits of a testamentary trust": T304.1-12, 315.42-43.

[35]

Mr Gowing's evidence

On 4 November 2021, Mr Gowing signed a statement comprising seven pages and two annexures being, respectively, colour copies of the North map and South Map and the annotated copies of the South map and North map (4 November 2021 statement): CB 1019-1029. Mr Gowing's 4 November 2021 statement was in response to a request from the plaintiff's solicitors, dated 19 October 2021, to provide a copy of the Will file and a statement setting out certain details regarding the making of the last Will.
In the proceedings, Mr Gowing affirmed two affidavits being, respectively, affidavits dated 29 September 2022 (CB 242-256) and 2 November 2022 (CB 301-304).
Relevantly, Mr Gowing stated in his affidavit (CB 250-252): 39. On the agreed date Andrew [Doyle] and I drove separately to Dungog and met at the corner of the property "Kenilworth" opposite Russell's home. We both drove up to Gloria's house. I introduced Gloria to Andrew at that time. They had not met before then. We went into her residence and sat around the kitchen table where I explained my professional relationship with Andrew and provided an overview of Gloria's situation and assets and absence of debt. 40. Andrew then gave Gloria advice concerning Wills including appointing suitable executors. He also spoke about preparing an Enduring Power of Attorney and Appointment of Enduring Guardian forms. 41. After Andrew gave his advice Gloria then gave Andrew instructions to prepare a Will, Enduring Power of Attorney and Appointment of Enduring Guardian. I was present when she gave him those instructions. There was no one else other than Andrew and me present. Gloria volunteered early on that she wanted Wayne to be able to continue living in the homestead we were sitting in. She said words to the effect: "Wayne has only ever lived here and I want him to be able to stay here." 42. When Gloria gave Andrew her instructions, they were clear and precise. I understood from her deliberate responses that Gloria had previously formed her testamentary intentions. After they discussed Gloria's liquid assets and personal effects, Gloria and Andrew had a discussion regarding the real property gifts in the will to the following effect: Andrew: "Ok so what do you want to do with your property?" Gloria: "Most of it for Wayne, but I want to square up Russell's boundaries so I'll need to give some of that land to Russell and the rest to Wayne." 43. During this conversation, Gloria and Andrew were looking at an enlarged A3 photocopy of the Exhibit referred to in paragraph 17. Before the meeting I had photocopied a number of the maps being pages 24 and 25 of the Exhibit being A4 size paper onto A3 size paper. I brought with me to the meeting a number of these A3 photocopies but left the remainder in my hard copy file at the office. I am unable to find this file now. Accordingly I am uncertain of the dates of the visits to "Kenilworth" and event sequences which records would have been included in this file. 44. I cannot recall the exact words that Gloria said to Andrew when she gave him instructions regarding the Will. However, her instructions to Andrew were precise and clear. She referred to boundaries and lots around Russell's house block and the lots by the names that are set out in the maps at pages 24 and 25 of the Exhibit. 45. I observed that Andrew took the name of the lots relating to "Dingadee" and "Neilsons" and the lot and DP description from the map "North of Stroud Hill Road", a copy of which is at page 25 of the Exhibit. 46. I cannot recall whether Gloria spelt "Dingadee" to Andrew as "Dingadee" or "Dinga Dee".
In cross-examination, Mr Gowing indicated that the notes made on the North map and South map were made by him on an occasion, the timing of which he was not able to say precisely, where he was at the deceased's home attending upon her at the kitchen table and where only he and the deceased were present: T 307.17-31. When asked again about whether he was quite sure that it was only himself and the deceased present at the conference at which he took the notes, he was not directly responsive (T 308.48-309.1): Q. And you're quite sure that it was only you and Gloria Reeves who were present at the conference in which you made these notes? A. As I recall I specifically remember going over the map and her giving reference to the names and addresses.
However, he was not then pressed on who was present. Whilst Mr Gowing was later asked regarding how many occasions he attended upon the deceased (T 316.1-2), I did not understand Mr Gowing as qualifying his earlier answer that only he and the deceased were present on the initial occasion: T 307.30-31.
Mr Gowing accepted that the purpose of his writing the notes on the maps was so that he had a record of the acquisition date and cost base for future accounting purposes for the lots, being the start of his compilation of information of historical material that he would need: T 308.43-46, 319.40-320.4. However, he disputed that the conference was specifically for the purposes of obtaining information about the historical cost base: T 307.45-50.
When Mr Gowing's cross-examination resumed the following day (15 September 2023), he gave the following evidence (T 315.22-316.23): Q. You're not able to identify to the Court any document which records the date on which you attended on Mrs Reeves to write out the notes which appear on those maps? A. No, I'm unable to, I'm sorry. Q. You're not likely to have been out to see Mrs Reeves on two separate occasions between Tuesday 22 June 2010 and Monday 28 June 2010, are you? A. The dates again? Q. Tuesday 22 June 2010 and Monday 28 June 2010? A. I don't believe there were any visits to Gloria that close together. There may have been, specifically to proceed with - about a week. Yeah, possibly. Q. But it's unlikely, to your recollection? A. Well, it was an active file on my desk, and in sequence. I'd set about a course of getting Andrew [Doyle] on the, on the - in front of Gloria, working around the issues of doing so without Wayne being aware of our attendance. So it would've been a priority in my diary to make all that happen. Q. You first spoke to her about her will on 12 March? A. Yep. Q. Your evidence is that you went out to see her in June or July? A. Yep. Q. And the will was executed on 22 October? A. Yep. Q. It's unlikely, isn't it, that you saw her twice between 22 June and 28 June? A. No, it's not. It's certainly possible. I honestly don't remember. There, there were numerous meetings bunched together with the project of being able to get new wills in place and coordinate the arrangements for Andrew and myself to attend at a timeframe when specifically at Gloria's request, Wayne was not home; he was at university. Q. In your affidavit, you gave evidence that you visited Mrs Reeves on her farm at Kenilworth and took with you a photocopy of the coloured maps, but you said you could not recall the exact conversation that you had with her about each lot? A. Yep. I think it - it was a black and white map I think I had with her when I wrote those things on it. It wasn't a coloured one. I probably had the coloured one with me, but I had photocopies of black and white, which were the ones that I wrote on with her. Q. But you agree you don't have a clear recollection of the conversation you had with Mrs Reeves on the day you took the handwritten notes? A. I have a clear recollection of sitting down at the kitchen table with a cup of tea and asking her about what she could recall that would help complete the, the puzzle of the properties which had been acquired, given that the map didn't have boundaries drawn on it, et cetera. So she, she enlightened me to help me to better interpret the map.
Mr Gowing was also cross-examined about his 4 November 2021 statement. He regarded it as then setting out as fully and completely as possible his recollection of how the title details for the properties in cl 7.3 of the last Will were obtained: T 323.16-19.
In questioning regarding his reference to "my enquiries and advice" from the deceased in paragraph 20 of his 4 November 2021 statement, Mr Gowing said (at T 318.7-18): Q. The ordinary reading of the first sentence is that you had two sources of information: from Gloria, and through your enquiries, correct? A. That's what - if that's what it says. But there is no other source of information derived - from which I derived information from what I wrote on those notes. So I - for example, the location of the homestead on the lot was - to me, was a mystery, a bit of a mystery in terms of - I still had difficulty reading the map in terms of the railway line, the road, and where things are on the maps. So when I first received it from Brorson, I had a look at the maps and thought "Okay, that makes some sense." The contour lines totally confused my interpretation because it's a very steep bit of country. So the, the only source of information I had, the only source of information I had which resulted in me writing those contemporaneously on those maps was from Gloria.
The cross-examination probed forms of expression regarding Mr Gowing's enquiries as used in his 4 November 2021 statement. He said (at T 318.42-319.38): Q. Are you able to say what the words "through my enquiries", what you were referring to in that paragraph? A. No. No. I don't understand the nuances. But at the end of the day, the only - having made enquiries through Felix Prentice, who obviously didn't have very much to say - and nor should he have, because I didn't have written consent for him to give - to volunteer information to me about her affairs - he obviously confirmed that he acted, he - that he had acted for her in the past and had knowledge of, of the - of her affairs. Q. Within paragraph 20, there are two concepts. One is that Gloria named the various lots, setting out details such as who they were acquired from and when. That's the first concept. The second concept is what she wrote on the map, which you refer to as the identifying names? A. Yes. Q. Isn't it the case that you asked Mrs Reeves for details of who the lots were acquired from? A. It's more likely she volunteered the names. I was looking for dates. Q. You asked Mrs Reeves‑‑ A. And dollars. Q. ‑‑for details of the acquisition date and price? A. Yep, that's what I needed. Q. And she volunteered some information about that, as well as the person from whom she, or she and her husband, had purchased each lot? A. Yep. Yep. Q. You interpreted her response as identifying names for each lot? A. They were the names referred to various paddocks, et cetera, in the course of running the farm. "Let's take those cows down to Berry's block", or whatever. Yes. Q. Do you accept that when you're having a conversation with a client, the client will say some words, you will listen to the words and interpret what they mean? A. Surely. Q. Do you accept that your interpretation of what a client says is not necessarily always what the client intended to communicate to you? A. By definition, yes. Q. Isn't it possible that when Mrs Reeves told you about the person from whom she and her husband acquired each lot, you misinterpreted the information communicated to you as names for the lots of general application? A. Absolutely - absolutely possible.
Further, at paragraph 21 of his 4 November 2021 statement, Mr Gowing stated (CB 1022): 21. This plan was present when Gloria was giving instructions to Andrew [Doyle] about preparation of her Will. I believed that Andrew obtained the title references for "Dingadee" from the plan which shows it as [X]/[XXXXXX].
In cross-examination he stated (T 323.42-48): Q. Paragraph 21. A. Thank you. That's where we would've got it from. There's nowhere else, there's no one else, nothing else on the table from which you could've got it. Q. Do you recall Mrs Reeves saying to Mr Doyle at the instructions conference that she wanted the Dingadee property to go to Russell? A. No.
A little later, Mr Gowing was asked about his independent recollection of the deceased's instructions to Mr Doyle. He stated (T 325.5-37): Q. Do you have an independent recollection of Mr Reeves [sic] instructing Mr Doyle that she wished for the Neilson's property to go to Russell? A. Even now I can't attach a name to a lot on the map without, without reference, to be honest. So, it's a bit hazy in my memory. I just, they're just names, frankly. They don't - I can't, I, if you gave me a blank map and said, "What block is that?", I couldn't tell you any one of them. Q. Do you recall Mrs Reeves at the instructions conference saying she wished to give the Kenilworth property to Wayne? A. I don't recall that. My strongest recollection is a request, as I ever heard, to square up the boundaries. And there, there was some land to be, to be set aside and made available for Russell. Q. If at the time you made your November 2021 statement you had recalled Mrs Reeves at the instructions conference looking at an enlarged A3 copy of a map you would have said so in that statement? A. If I had recalled? Q. If you had recalled it at the time you made that statement you would have set out that detail in your statement. A. Not necessarily. Q. Is there any reason why you'd leave it out? A. No. Q. Your best recollection at the time you made your November 2021 statement was simply that you believed that Mr Doyle obtained the title references for Dingadee from the plan? A. Yes. Q. You don't have an actual recollection of seeing Mr Doyle take those title references from the plan, do you? A. No.
Further, in terms of instructions, Mr Gowing gave the following evidence (T 326.20-38, 327.34-43): Q. If at the time you made your November 2021 statement you had recalled Mrs Reeves at the instructions conference saying she wished to give most of her land to Wayne you would have said so in that statement. A. It was, it was actually given in, in my mind, from my understanding of her, her intentions. Q. You don't recall that today? A. My recollection now at the time of making that statement was that her intention was that the bulk of the land will be made available to Wayne. Q. But, you don't‑‑ A. For - of the farming land, for the purposes of conducting the, continuing the business. Q. But, you don't have an independent recollection of the words that she spoke? A. Well, she said them to me at some stage. I can't recall exactly when it was. "I want most of the farm to be available for Wayne to be able to continue the business. It's all he has". … Q. Are you quite sure that Mrs Reeves didn't use the words "most of it for Wayne" when she's referring to the residue of her estate? A. No. Saying I, I'm quite - I, I do not believe that's what was her, her meaning. Q. But, it's fair to say you don't have a clear recollection of the words that she used? A. Well, it's pretty specific. "I want the, most of the farm to go to Wayne to conduct the business. That's all he has. To run, run the farming business, that's all he has".
Later, Mr Gowing also gave the following evidence (T 328.33-329.7): Q. A short time ago you gave some oral evidence about a conversation with Mrs Reeves in which Mrs Reeves referred to giving most of the land to Wayne. A. Yes. Q. If at the time you made your November 2021 statement you had recalled that conversation you would have set it out in your statement. A. No, it was evidence from the will that that's what she wanted to do. Q. Your evidence of the conversation that you had with Mrs Reeves is a reconstruction based on your understanding of the terms of Mrs Reeves's will, isn't it? A. Essentially it is. Yes. Q. There were only two conferences between you, Mrs Reeves and Mr Doyle concerning Mrs Reeves's will. Correct? A. Correct. Q. The first one where instructions were taken? A. Correct. Q. And the second one when the will was executed? A. Correct. Q. You're quite sure about that? A. Yes. With, with Gloria. Yes.
During the course of his cross-examination, Mr Gowing was confronted with an email he sent to Mr Doyle on 28 June 2010 at 7:41pm, attaching the annotated versions of the North map and South map (the 28 June 2010 email): Exhibit P1 pages 25-27. The subject line of the email was "FW: Reeves map with lots identified" and the body of the email stated as follows: This will surely help! You recorded which blocks Russell was to get. Wayne is on uni holidays so I may not be able to get Gloria on her own….JMG
By reference to the 28 June 2010 email, Mr Birtles suggested to Mr Gowing that the maps were not present at the instructions conference between himself, Mr Doyle and the deceased. He denied that as follows (T 329.40-42, 330.46-331.33): Q. These maps were not present at the first conference between you, Mr Doyle, and Mrs Reeves? A. They were. … Q. These maps were not present at the first conference with Mrs Reeves, yourself, and Mr Doyle? HIS HONOUR: Sorry, that's a proposition‑‑ WITNESS: No, they absolutely were. HIS HONOUR: All right. WITNESS: They absolutely were. I recall sitting at the kitchen table, with my knee on a chair, leaning over the kitchen table, pointing to the maps and directing Andrew's attention to that, is my best recollection. Otherwise, he had no basis of, of where anything was. BIRTLES Q. Isn't this what happened: Mrs Reeves gave Mr Doyle instructions she wished to give the properties known Dingadee and Neilson's to Russell? A. I don't recall the Dingadee, frankly. But Neilson's, yes. Q. You sent the maps by email to Mr Doyle in the period between the first conference between yourself, Mr Doyle, and Mrs Reeves, and the second conference with her, at which the will was executed? A. It must have been the second conference at which we pored over the map at the time we‑‑ Q. Is it the case that you don't recall? A. I don't recall. The sequence of events escapes me. Q. Mrs Reeves did not, in your presence, give instructions to Mr Doyle that the gift of Dingadee to Russell was to be limited to [X]/[XXXXXX]? A. She was specific in directing him - I wasn't, I wasn't paying particular attention at the time to, to the fine detail of the lots numbers, et cetera, which Andrew was taking notes on; I was distracted, reading something else at the time. But she gave him specific instructions which, at the time, I understood clearly identified those areas which she wished around Russell's house to square up the boundaries.
The events regarding the instructions for the last Will took place some time ago. Clearly, Mr Gowing's recollection of events is not perfect. The general tenor of his evidence is that he had some recollections of clarity but there were other matters in which he was unable to clearly identify dates.
The nature of cross-examination is such that, on occasions, because of the question and answer process, a witness might apparently dispute or concede some point but later qualify the answer.
Mr Gowing's evidence regarding the annotations on the North map and South map (with the exception of the words "South of Stroud Hill Road" and "North of Stroud Hill Road", which he believes were written by Mr Brorson), as I understood him, was generally to the effect that the annotations were all written by him on the one occasion from information received from the deceased, orally or with rate notices, with him sitting down with the deceased at the kitchen table and without the defendant being present: T 316.8-34, 317.21-44.
Overall, I consider that, on the balance of probabilities, Mr Gowing relevantly attended upon the deceased on three occasions.
First, on an occasion the date of which he cannot recall, Mr Gowing attended upon the deceased alone at her home at the kitchen table, without Mr Doyle being present, and took instructions regarding the properties. He made annotations on the North map and the South map on that occasion at least, though not exclusively, for assisting him in advising the deceased for tax (in particular, CGT) purposes. Whilst a possibility was raised that Mr Prentice may have provided some information for the North map and South map, I consider that the better view of all of Mr Gowing's evidence is that the information which he annotated on the North map and the South map was provided, as he says, by the deceased to him on this first occasion.
Secondly, Mr Gowing first attended upon the deceased with Mr Doyle. They drove separately to the deceased's home. This second conference was referred to during the hearing in a number of ways and I have referred to it above as the "instructions conference" for convenience.
Thirdly, Mr Gowing attended upon the deceased with Mr Doyle for the purposes of executing her last Will.
Mr Birtles submitted that Mr Gowing speculated that the map was present at the instructions conference before agreeing he did not recall: PCS [68]. I reject that submission. I regard the passages I have referred to above (T 329.40-42, 330.46-331.33), in light of his evidence as a whole, as Mr Gowing accepting he has trouble recalling the sequence of events, but being sure that the enlarged A3 copy of the North map and South map were present at the instructions conference between himself, Mr Doyle and the deceased, whenever that conference occurred.
I do not consider that the 28 June 2010 email provides any conclusive basis for finding that the maps were not present.
Mr Birtles suggested to Mr Gowing (in evidence I have extracted above) that it was possible he misinterpreted the information provided to him by the deceased. Whilst Mr Gowing considered that it was "absolutely possible" (T 319.35-38), Mr Birtles did not demonstrate what information on the North map might have been relevantly misinterpreted.
Mr Birtles submitted that the information written on the North map and South map was drawn from several sources, making Mr Gowing's account of events implausible: PCS [70]. I reject the submission.
In any event, the two properties that are the subject of cl 7.3(a) of the last Will, which are described on the North map as being "Dingadee" and "Neilsons", are prima facie, on at least on one view, correctly identified by those names. Lot (a) was purchased pre-CGT and was known at least in 1979 as "Dingadee Dairy". Indeed, the plaintiff pleads that as a fact: CB 6[19]. The fact that the dairy was also operated from other lots does not make the annotation of lot (a) as "Dingadee" necessarily inapt. Further, there is no dispute that lot (b), annotated on the North map as being "Neilsons", was purchased initially from Ben Neilson in or about 1987 and subdivided: CB 98[102]-[108]. Mr Birtles accepted in submissions that, at times, the deceased referred to lot (b) as "Neilsons": POS [54(d)]. Thus, its description as "Neilsons" is prima facie correct.
Further, another annotation on the North map, namely, lot (j) as "Bennetts", is also correct. Mr Birtles accepted that, at times, the deceased referred to lot (b) as "Neilsons", and lot (j) as "Bennetts", by separate names, because those lots are in the intermediate area between Stroud Hill Road and the Northern Railway Line: POS [54(d)].

[36]

Mr Doyle's evidence

On 24 November 2021, Mr Doyle signed a statement comprising three pages and two annexures AD1 (being a letter to the deceased and a tax invoice, both dated 27 October 2010, and a letter to Mr Gowing also dated 27 October 2010) and AD2 (being a copy of the South map and the North map) (24 November 2021 statement): CB 1044-1051. The statement was prepared in response to a letter from the plaintiff's solicitors asking him to set out how the title references referred to in cl 7.3 of the last Will were determined: T 340.
In the proceedings, Mr Doyle affirmed two affidavits being, respectively, affidavits dated 28 September 2022 (CB 231-241) and 24 August 2023 (CB 305-308).
Relevantly, Mr Doyle stated in his affidavit (CB 234-236): 13. Sometime in or about July 2010 I met Gloria at her residence at "Kenilworth", Dungog. 14. I met John Gowing at "Kenilworth". I had travelled from Sydney. 15. There was no one else present other than myself, John and Gloria during our consultation with Gloria. 16. We all walked into her residence and sat down at her kitchen table. 17. I then took instructions from her as to how she wanted to make out her Will. I made notes of my instructions. 18. I do not have a detailed independent recollection of my conversations with Gloria. However, I am able to recall some conversations I had with her. 19. I discussed with her who she wanted to appoint as her executors. I believe she said to John Gowing: "John I would like you to be an executor with Wayne and Russell." John responded: "That's okay Gloria." 20. I explained to Gloria how beneficiary controlled testamentary trusts worked in relation to the Will and why we recommended that they be included in Wills where the estate is relatively substantial. To the best of my recollection Gloria said to me words to the effect: "Yes I would like to include a testamentary trust in the Will for both Wayne and Russell." 21. At this meeting a map was produced which Gloria identified as being a map of the properties owned by her. I have no independent recollection of whether this map was produced by John Gowing or by Gloria herself. … 22. During instructions to make the Will Gloria and I had a discussion with words to the effect: Gloria: "I wish to leave to Russell Dingadee and Neilsons." Me: "Which lots are these?" 23. Gloria pointed to the map at page 4 to 5 of the Exhibit. I could see that she was pointing to the lot referred to on the map as "Dingadee" which was Lot [X] in DP[XXXXXX] and to the lot referred to on the map as "Neilsons" being Lot [XX] in DP[XXXXXX]. 24. Gloria said to me words to the effect: ''All other lots other than "Dingadee" and ''Neilsons" are to go to Wayne." 25. It was clear to me that by "Dingadee" Gloria meant only Lot [X] in DP[XXXXXX]. 26. Gloria also said to me: "I wish to give Russell "Neilsons" which is approximately 100 acres. He already owns half of it." 27. I have no independent recollection as to whether Gloria told me the spelling of "Dingadee" was "Dingadee" or "Dinga Dee".
Mr Doyle was cross-examined about his 24 November 2021 statement. He accepted that the statement set out as fully and completely as possible the steps taken by him to obtain instructions from the deceased in relation to her last Will: T 341.21-24.
He accepted that he had read Mr Gowing's 4 November 2021 statement prior to swearing his affidavit in the proceedings: T 343.
In his 24 November 2021 statement, Mr Doyle indicated that Mr Gowing had either produced or given to him prior to the instructions conference a map of the lots owned by the deceased. He could not recall when Mr Gowing had given him the maps (T 344.44-345.2), including whether they had been given to him prior to the meeting or at the meeting: T 346.28-38.
By reference to a copy of the North map (CB 1051), it was suggested to Mr Doyle that if he had reviewed the map with the deceased at the instructions conference, he would have asked the deceased to whom she wished to give lot (e). He indicated that that was not necessarily the case, and readily accepted that he was not familiar with the land north of the railway line: T 348.18-34.
Mr Doyle was asked specifically about Dingadee and Neilsons (the names noted on the North map for the areas in lots (a) and (b), respectively) and gave evidence as follows (T 352.16-28): Q. Do you have an independent recollection of Gloria telling you she wishes to leave Russell Dingadee and Neilson's? A. Yes. Q. Do you have a recollection of Mrs Reeves telling you that she wished to leave all other lots to Wayne? A. Yes. Q. You don't have any file records that record the spelling of Dingadee as two words? A. No, I don't. It's my practice thought [sic] to, to write these things down when I'm taking instructions. For example, you know, names of places, title descriptions and things like that, and, yeah, but I don't have them.
Shortly after he stated (T 352.48-353.8): Q. In your affidavit, you've consistently used one word when you're describing Dingadee? A. Yes, correct. Q. Do you accept that it's likely that you have made a mistake in clause 7.3A of the will, in spelling Dingadee as two words? A. I'm not sure. People spell - I'm not sure if, I'm not sure if I did make a mistake because I, people spell property names all sorts of ways, you know, "Why not", "Did not", you know, things like that. Dingadee is a funny, sort of, name, and I don't know if that is or not the correct spelling of it. Sorry, I don't know.
Then, by reference to the 28 June 2010 email, it was suggested to Mr Doyle that he did not have the North map and South map at the time of the instructions conference, which he disputed. He stated as follows (T 354.38-355.40): Q. I also suggest that Mr Gowing is providing with this email, a document that he had not given to you before? A. No, no, I don't agree with that. HIS HONOUR Q. Can I understand why you don't agree with that? A. My recollection is that the, the map was available at our meeting, and Mr Gowing took them, took the map with him. I'm not sure, I didn't have - does that assist? BIRTLES Q. If that was the case, why would provision of the map after the meeting help? A. As an aide memoire, if you like, to, to assist with the actual identification of the, of the lot numbers. Q. Is your best explanation to the Court that the map was provided to you after the first conference, for the purpose of assisting you to identify the lot numbers. Is that your evidence? A. No, my, my evidence was that the-- Q. I'm just asking about your recollection? A. My recollection is that the map was available there, at the first meeting. I can't recall getting this, I can't recall getting this email, but, but I have no reason to believe I didn't. And my recollection, my normal practice is I would've made notes about the, the identity of the lots that Russell was to get, including their lot numbers. Now, I may have asked John a question just to make sure that I've got it right; that is an explanation for this. HIS HONOUR Q. Sorry, do you mean by that that before you received this email, you made contact with Mr Gowing, is that right? A. I, look, I can't recall. The email would suggest that I had asked the question. But I, I can't recall, and I - I can't recall. But it also says, "You recorded which blocks Russell was to get", so I've written it down; it appears as though I've written it down. Maybe I was, I mean, maybe I was asking for some corroboration of what my, my notes were saying when I was preparing the will. BIRTLES Q. Isn't it likely that the first conference, Gloria gave you instructions that she wished to give the property known as Dingadee and Neilson's to Russell, you wrote those instructions down on your file note, you returned to the office, and then contacted Mr Gowing for assistance in obtaining the lot and [folio] identifiers? Isn't that likely? A. No, my recollection is that the map was present at the first meeting, and I took instructions at the first meeting about those particular lots. If I was reaching out to Mr Gowing, was because I didn't have the map; he'd take it with him.
After the luncheon adjournment on 15 September 2023, Mr Doyle was further cross-examined regarding differences between his 24 November 2021 statement and his 28 September 2022 affidavit, particularly regarding whether the map was produced at the meeting or whether he had no recollection of it: T 357-358.
It was further put to Mr Doyle that no information on the annotated North map and South map appears to have been used in the last Will. He disagreed with that as follows (T 359.27-38): Q. So, what I'm putting to you is that there is no information recorded in the will that is also recorded on the two annotated maps except for the word "Neilson's", the folio identifier for that block, which is lot [XX], DP [XXXXXX], and the folio identifier which is recorded in the will for Dingadee, lot [X], DP [XXXXXX]. A. Yes, that, that is the extent of, that is the extent of the identification of those two particular lots in the will. Correct. Q. And if you had already made a file note of those two lot and DP numbers at the conference you would not need a copy of the map to prepare the will. A. Well, no, I disagree with that. Because, if I didn't - if I had my notes and I had the map in front of me I would cross‑reference them and I'd be then, instead of 95, you know, 98% sure, I'd be a hundred per cent sure.
The cross-examination continued a little later as follows (T 360.3-42): Q. I put to you that at the first conference Mrs Reeves gave you instructions that she wished to give the properties known as Dingadee and Neilson's to Russell. A. Yes, and at the first conference she also identified those properties by reference to the map. Q. I put it to you that the maps were not present at the first conference? A. That's not my recollection of it. Q. I put it to you that you obtained the title particulars that you used in clause 7.3 of Gloria's will, the Dingadee property and for the Neilson's property, from the maps that Mr Gowing sent to you in the period between the first and second conferences with Mrs Reeves? A. I don't have my file notes of taking instructions, but it is normally my practice when taking instructions, particularly of particular titles, to write down the lot and folio numbers because rural properties are contained of - are often contained, particularly older properties around Gloucester and older properties like this, are often contained of multiple lots; sometimes, you know, I have seen them hundreds of lots. So one needs to be particular about which particular lot of the property that they're talking to - talking about, and which is why I took instructions about these particular lots. Q. In answer to my last proposition, you referred to your absence of file notes and your normal practice. You don't have a clear recollection of the sequence, do you? A. Well, the, the sequence is my normal practice is to take instructions and to write down instructions, and in particular to write down the numbers of the lots. And at the first conference, my recollection is that Mrs Reeves pointed to these particular lots, particular lots on the map that was there at the meeting. Q. I put it to you that the evidence that you've given is a reconstruction by reference to the documents that you've seen? A. My evidence in relation to taking instructions from the will is from my, is from my, my recollection of the events on the day. Q. I put it to you that you relied on Mr Gowing's handwritten notations on the map to identify the property known as Dingadee as lot [X]/DP[XXXXXX]? A. No. I relied on what the, what the will‑maker, Gloria Reeves, had told me that that's what, that that's what the property was, because she pointed to it on the map.
Whilst I accept that Mr Doyle cannot precisely recall whether the North map and South map were produced for the first time at the instructions conference or whether he had received them earlier, I accept his evidence that the North map and South map were present at the instructions conference.
I accept Mr Doyles' evidence that the provision of the maps as an attachment to the 28 June 2010 email does not necessarily mean that he did not have the North map and South map at the time of the instructions conference. I accept that a plausible possibility is that they were provided to him as an aide memoire to assist with the actual identification of the lot numbers.
I further accept Mr Doyle's evidence that he identified the lots for the purposes of cl 7.3(a) of the deceased's last Will by reference to the fact that the deceased pointed to the lots on the North map.

[38]

Mr Gowing's evidence

Relevantly, Mr Gowing stated in his affidavit (CB 253-254): 51. After sitting at the kitchen table Andrew [Doyle] went over the contents of the Will with her. He also went through the Enduring Power of Attorney and Appointment of Enduring Guardians. 52. Andrew did spend quite some time with Gloria explaining the Will. We were there with her for at least two hours and the process was not in any way rushed, especially as Gloria had not had a chance to review the draft Will previously. Andrew said words to the following effect: "The Will is very long but it's not as daunting for you as you might think. It is divided into three parts. Part A is the most important part because that contains your instructions regarding your appointments and distributions. Let's go through that carefully in a minute. Parts B & C are the machinery parts which make Part A work. The document is so clever in that way. Parts B & C are usually the same for most people like you" 53. Andrew paraphrased all of Part A and mentioned the relevant parts of B & C. He specifically read out the whole of clause 7.3 to her as part of that process. 54. At some stage while Andrew was explaining the Will to Gloria, Gloria said to Andrew words to the effect: "If either one of my sons Wayne or Russell wish to sell their share in their property I want it offered to the other son". 55. Andrew explained to Gloria to avoid obvious delays that he could handwrite out her instructions to which Gloria agreed. I then witnessed Andrew handwrite the instruction which he read back to Gloria in my presence. Gloria agreed that these were her instructions and she then signed them. She said words to the effect: "That's it, yes thank you that would be fairer for both of them." 56. Andrew then witnessed her signature. … 57. I then witnessed Gloria sign her Will. I then signed as witness. Andrew then signed as witness. …
Mr Gowing made a file note of the attendance, a colour version of which appears in the Court book (CB 897). It includes the following entry in handwriting: Land Dingadee + Neilsons → T/T Russell
Mr Gowing was cross-examined regarding the attendance. Relevantly, he gave the following evidence regarding cl 7.3(a) (T 336.3-26): Q. Mr Doyle paraphrased the will when explaining it, didn't he? A. He did. Q. You don't have an actual recollection of Mr Doyle reading out the whole of clause 7.3 of the will? A. He would have. I don't specifically recall it, but I'm familiar with his style and the way in which he approached the execution of will[s], of which we'd done several together, including a very similar document referrable to a will he prepared for my father a few months earlier. I can almost paraphrase his paraphrasing. And if 7.3 is the clause which deals with the distribution of property, the[n] he most certainly would've gone through it in detail. Q. Mr Doyle would have summarised it by saying that the land known as Neilson's, consisting of approximately 100 acres not already owned by Russell, and the land known as Dingadee is to go to a testamentary trust, of which Russell is the primary beneficiary? A. He would have the choice as to whether it would go in the testamentary trust or whether he would take it in his own possession. Q. But, otherwise, do you agree with my summary? A. I don't recall the reference to Dingadee. Q. You don't have a clear recollection of the words that he used? A. No.

[39]

Mr Doyle's evidence

Relevantly, Mr Doyle stated in his 28 September 2022 affidavit (CB 238): 42. I sat down with Gloria and John [Gowing] at the kitchen table. 43. I then read parts of the Will to Gloria. I have no independent recollection of the exact parts that I read. I believe that I read to her clause 7.3 of the Will. 44. As the Will is a lengthy document and many of the provisions relate to executor's powers and the beneficiary controlled testamentary trust I summarised these provisions for Gloria. 45. I have no independent recollection as to reading out to Gloria her address. At no time did she indicate to me the address was wrong. 46. When reading out clause 7.3 I have no independent recollection of reading out the spelling of "Dingadee" to Gloria. Gloria did not indicate that "Dingadee" was spelt incorrectly in the Will. 47. I then said words to the effect to Gloria: "Are you happy with the Will? Do you have any questions?" Gloria then responded with words to the effect: "No. The Will is in accordance with my instructions. I am okay to sign it now." 48. I then arranged for her to sign on the bottom of each page on the line under which is written "Willmaker". Once Gloria had signed I then arranged for John Gowing to sign on each page on the line under which the word "Witness" is written. After John had signed on the last page he then wrote his full name and address and occupation on the last page of the Will. 49. After John signed I then signed on each page on the second line under which "Witness" is written. After I had signed on the last page I then wrote my full name and address and occupation on the last page of the Will. I then wrote the date on the front and back page of the Will. …
Mr Doyle was cross-examined about the occasion when the deceased's last Will was signed and, in particular, whether he read out cl 7.3. His evidence was as follows (T 362.4-363.1): Q. At paragraph 43, you give evidence of reading parts of the will to Gloria? A. Yes. Q. You say you have no independent recollection of the exact parts that you read? A. That's what I've said in the affidavit, correct. Q. And you say that you believe you read to her clause 7.3 of the will? A. Yes. I think perhaps the words - the word "however" could have been interposed there between the last sentence and the second sentence, so that it read "I have no independent recollection of the exact parts that I read. However, I believe that I read to her clause 7.3 of the will." Q. It's a 21‑page document. A. Yes. Q. You didn't read out the whole thing, do you accept that? A. No, no. I didn't read out the whole thing. Q. What's likely to have occurred is that you summarised the key terms? A. Yes. Q. You don't have an actual recollection of reading out the whole of clause 7.3 of the will, do you? A. Yeah, well, I, I am sure I read out clause 7.3 in its entirety. The clauses of the will that were most important in relation to the whole exercise were clause, were clauses - the actual - apart from the, the obtaining instructions from the executors and - obtaining - about the executors are the bequest clauses, which are clauses 6, 7, and 8, okay. And my recollection is that I read all of those clauses to - or 6.1, 7.3, and also clause 8, about the residual beneficiaries. My recollection is that I read those clauses out to her in full. Q. It's your general practice to explain the key terms of wills in detail before they're executed, is that right? A. Yes, it is, particularly with these types of wills that contain basically embedded discretionary trusts in is, and also - and it's a very lengthy document, yes. It's normally my practice, too, to offer the will‑maker the opportunity to read the whole will. It's usually the case that they say no. Q. I put it to you that you're not in a position today to say whether you read out clause 7.3 in full or just gave a detailed summary? A. I believe I read it out in full because it was vital to, vital to what my instructions were. Q. You're likely to have paraphrased 7.3(a) of the will by saying that Dingadee and Neilson's are given to a trust, of which Russell is to be the primary beneficiary? A. No, I disagree with that.
Mr Doyle did not have the North map and South map at the time of the deceased executing the last Will: T 363.3-23.
In relation to the limiting of the gifts to specific lots, Mr Doyle was cross-examined as follows (T 363.25-44): Q. And you don't say anywhere in your affidavit evidence that you took any other step on 22 October 2010 to confirm that Gloria's intention was to limit the gift of Dingadee to lot [X]/DP[XXXXXX]? A. Well, I read out clause 7.3(a), and that said lot [X], and it referred to the two particular lots. But apart from that, no, I didn't, I didn't, I didn't say anything more about that apart from when, when addressing, when addressing the fact that there appeared to be an inequitable - well, that's probably the wrong word - an imbalance in the amount of land that Russell was getting as opposed to the amount of land that Wayne was getting, and also there was an imbalance in the residual estate. I put it to Gloria that, that - well, I said to her that this is - there appears to be an imbalance here, and that this could give Russell Reeves, if he goes to see a solicitor and says, you know, "I don't think I was" - "I don't think" - "I think I was badly done by in the - in what I was given", it could give rise to a claim for maintenance from the estate because there was an imbalance, at least so far as the differences in the areas were concerned. And I was - and I - as a normal practice, I'd remind the will‑maker that this was, that this was - could've been a problem in the future, and, and she then said that no, that's how she wanted it to be.
I am satisfied that Mr Doyle read out the entirety of cl 7.3(a) of the last Will to the deceased and, in particular, referred to the lot numbers.

[40]

Should construction or rectification be determined first?

Mr Birtles accepted that the construction case was a difficult case to make out without rectification: T 7.1-2.
Mr Birtles submitted that there is a theoretical question as to whether the claims for construction or rectification should be determined first: PCS [49]. Ms Fendekian submitted that the plaintiff (by Mr Birtles) was impermissibly conflating his construction and rectification case: DCS [74].
The Court has an inherent jurisdiction to regulate its own proceedings so as to promote matters relating to convenience, expedition and efficiency in the administration of justice, which includes directing or ordering the parties to use certain procedures, if the benefits derived from the use of such procedures justifies the costs and will ensure that the trial proceeds quickly and efficiently: Idoport Pty Ltd v National Australia Bank Ltd (2000) 49 NSWLR 51; [2000] NSWSC 338 (Idoport) at [15] per Einstein J.
In New South Wales, statutory reform commencing on 1 March 2000 provided an overriding purpose into rules of Court to facilitate the just, quick and cheap resolution of the real issues in proceedings, and the Court was directed to give effect to the overriding purpose when it exercises any power given to it by the rules or when interpreting any rule: see Pt 1 r 3(1), (2) Supreme Court Rules 1970 (NSW) (now repealed), which came into effect by means of Supreme Court Rules (Amendment No. 337) 1999 (NSW) at [8(a)], [9]; see also Idoport at [14]-[36]. This was the precursor to the civil reforms introduced in 2005 with the Civil Procedure Act 2005 (NSW) (CPA), s 56(1), (2).
Traditionally, the Court does not rectify a document until it has first construed the document. However, in New South Wales, this Court has for over 40 years permitted an approach to construction and rectification claims such that it may consider a rectification claim effectively together with a construction claim and rectify a document out of an abundance of caution.
Well prior to the introduction in New South Wales of the above-mentioned civil procedure reforms, Young J (as his Honour then was) in Alcan Australia Ltd v Geraghty (Supreme Court (NSW), Young J, 8 October 1993, BC9302153, unrep) intimated that the basis for such an approach may be justified by the Court's power to regulate its processes to ensure a just, quick and cheap disposition of the real issues in proceedings. His Honour stated at 2-3: Generally speaking, the Court does not rectify a document until it has first construed it in a way that the plaintiffs say shows the real agreement made has been inexactly recorded; see eg. Bacchus Marsh Concentrated Milk Co Ltd v Joseph Nathan and Co Ltd (1919) 26 CLR 410. Care must be taken, however, not to take this general rule too far. In Standard Portland Cement Co v Good (1982) 57 ALJR 151 at 154 Lord Templeman, giving the decision of the Privy Council in an appeal from this Court, indicated that one could be entitled to rectification ex abundanti cautela, in other words one can approach the Court for rectification and say: ["]It is unclear what my contract means, but if it does not mean X then rectify it so that it does mean X because X is what we intended it to mean." If one does not take this approach, one gets in the rather strange situation of having to spend a considerable amount of money construing a document, often a process which can only be done with the assistance of expensive solicitors and counsel, when one can see quite plainly all the time what the parties meant. Although the rule, as set out in the Bacchus Marsh case is a general rule, in this day and age the modification set out by the Privy Council means that one can go straight to the question of rectification without having to make a decision on construction, if the matter is fairly arguable. However, I will deal, without deciding, with the question of construction because significant matters were raised by counsel and solicitor for the parties. Mr Heydon QC, who appeared with Mr Jackman of counsel, for the plaintiff, cited a passage from the joint judgment of Dixon CJ and Fullagar J in Fitzgerald v Masters (1956) 94 CLR 420 at 426 to 427, that: "Words may generally be supplied, omitted or corrected in an instrument, where it is clearly necessary in order to avoid absurdity or inconsistency." They also cited the words of Hershell LC in Glynn v Margetson and Co [1893] AC 351, 355, that one may in appropriate cases disregard portion of a contract on a printed form, if it was inconsistent with the prime object of the contract.
In 2015, Young AJA (as his Honour then was) returned to the issue in Re Cobcroft [2015] NSWSC 346 (Re Cobcroft), a Will construction case, and confirmed that rectification can be granted where appropriate out of abundant caution: 45. Mr Willmott cites three cases which he says are authority for the proposition that "even if a construction of (the will) would produce the same result, it will nevertheless be appropriate to order rectification". [Application] of Spooner; the Estate of David (Hodgson J, 28 July 1995, unreported); Rawack v Spicer [2002] NSWSC 849 (Campbell J) and Tantau v Macfarlane [2010] NSWSC 224 at [49] (Ward J). I should add the decision of Estate of Cross (M McLelland CJ in Eq, 9 May 1996, unreported). 46. With respect, I consider Mr Willmott has overstated the position. The question of rectification when construction could be enough was dealt with by Campbell J in the Rawack case at [25] where his Honour said: it is possible for rectification of an unclear clause in the will to be granted ex abundanti cautela, where rectification makes clear the testator's intention, even if the clause with the testator actually executed, on its proper construction, means the same as the clause that is rectified. 47. This makes it clear that the order for rectification is possible out of more abundant caution. It does not say that this is the ordinary result of a case where there is an obscure provision in the will that is capable of being construed that rectification must necessarily follow.
In Re Cobcroft, his Honour addressed the pros and cons of combining construction relief with rectification relief, including adverting to questions of the additional cost and length of proceedings associated with a rectification claim. His Honour gave the following guidance and noted that ultimately it would be a discretionary case management decision as to whether construction and rectification claims are combined in a way to be determined at the same hearing: 48. As I mentioned in Re Morgan [2015] NSWSC 194 at [5], the reason for making the rectification order is so that people searching in the future can see exactly what is meant by the will rather than have them have recourse to a judgment of the court. However, it is not good practice to combine a rectification suit with a construction suit because in a construction suit one is very limited by the rules as to when one may look to surrounding circumstances and direct evidence of intention. If one combines a rectification suit with a construction suit a whole lot of extra evidence can be admitted and can be the subject of cross-examination which leads to much longer proceedings and greater costs to the estate so there is less money to the beneficiaries. It is a matter for the discretion of the judge whether he or she will grant rectification when there is a fairly clear construction of the will. 49. In the present case, the construction is fairly clear. As Mr Wilson points out in his submissions, the test is not whether it is convenient that the will be rectified or that rectification would assist in the construction of the will, there needs to be material to suggest that the will contains an error or fails to carry out the testamentary intentions.
In this case, the question as to whether the construction and rectification claims should be combined in a way so that they were determined at the same hearing was foreclosed by earlier case management decisions which led to the hearing of all relief claimed at the same hearing, without the prospect of a separate determination of questions.
In those circumstances, I propose to take the approach of addressing the proper construction of the last Will without immediate reference to the claims for rectification and then, if necessary, to address the claims for rectification.

[41]

Construction principles

The object of construction of a Will is to give effect to what can be ascertained, having regard to admissible extrinsic evidence, the testator intended by the words he used: e.g. De Lorenzo v De Lorenzo (2020) 104 NSWLR 155; [2020] NSWCA 351 at [50] per White JA (Gleeson JA agreeing), citing Fell v Fell (1922) 31 CLR 268 at 273 per Isaacs J; [1922] HCA 55 (Fell v Fell); Perrin v Morgan [1943] AC 399 at 406 per Viscount Simon LC, 416 per Lord Thankerton.
In so construing the testator's expressed intentions, the Court does not search for what the testator subjectively intended, or meant to say or do, when making the Will: Middleton v Schofield [2022] NSWSC 1454 (Middleton v Schofield) at [17] per Robb J, citing Farrelly v Phillips (2017) 128 SASR 502; [2017] SASCFC 111 at [32] per Stanley J (with whom Kourakis CJ agreed); Carrington v Wallace [2019] NSWSC 1301 (Carrington v Wallace) at [57] per Robb J, quoting GE Dal Pont and KF Mackie, Law of Succession (2nd ed, 2018, LexisNexis Butterworths) at [8.4].
Text and context are the guides.
The nature of language and literary expression is such that the task of construction, in ascertaining the intention of the testator, is not purely a mechanical exercise: Estate of JA Gilmore, deceased [2014] NSWSC 1263 at [33] per Lindsay J.
In undertaking the construction task, the Court looks at the Will as a whole, before finally arriving at an opinion as to the meaning of the contested portion, to ascertain whether anything in any other part of the Will informs the meaning of the passage in controversy: Fell v Fell at 273-274.
The purpose of reading the Will as a whole was explained by Isaacs and Powers JJ in Sidle v Queensland Trustees Ltd (1915) 20 CLR 557 at 560-561; [1915] HCA 48. Their Honours stated: … You read the whole document through in the first place to ascertain whether it contains anything to affect the meaning of the passage in controversy. If it does not, you construe the passage by itself, having reference, of course, to the subject matter and relevant surrounding circumstances. If there is something affecting the meaning, you have to construe the controverted passage by the additional light of the other portion of the document. If authority were wanting for this, it is found in the judgment of Lord Halsbury L.C. in Higgins v. Dawson [(1902) A.C. 1, at p. 3].
The Court adopts the "armchair principle", putting itself in the position of the testator in considering all material facts and circumstances known to the testator with reference to how he is taken to have used the words in the Will: Warton v Yeo [2015] NSWCA 115 at [35] per Ward JA (as the President then was), citing Allgood v Blake (1873) LR 8 Exch 160 at 162 per Blackburn J.
Evidence of surrounding circumstances (facts and circumstances known to the testator at the time the Will was created) is directed to context: King v Perpetual Trustee Co (Ltd) (1955) 94 CLR 70 at 78 per Dixon CJ, Williams, Webb, Fullagar and Taylor JJ; [1955] HCA 70; James v Douglas [2016] NSWCA 178 (James v Douglas) at [19] per Meagher JA (Leeming and Simpson JJA at [77]-[78] agreeing). Thus, it is permissible to ascertain intention by reference to wording expressed within the Will, construed in context, as distinct from enquiring into the testator's acts, feelings and intentions expressed outside the Will: GE Dal Pont, Interpretation of Testamentary Documents (2019, LexisNexis Butterworths) (Dal Pont, Interpretation of Testamentary Documents) at 42 [2.21].
Under the general law, direct extrinsic evidence of the testator's actual intentions is limited to equivocations: Dal Pont, Interpretation of Testamentary Documents at 40 [2.17].
An equivocation arises where the testamentary language may be applied equally to each of two or more persons or things, and the Will as a whole and the available surrounding circumstances do not permit the Court to determine which of the alternatives was intended by the testator: Carrington v Wallace at [66] per Robb J.
Section 32 of the Succession Act expressly applies to proceedings to construe a Will and modifies the general law regarding what evidence is admissible: James v Douglas at [19]. It was part of the original form of the Succession Act assented to on 27 October 2006 and which commenced on 1 March 2008. It applies to Wills made on or after that date.
Section 32 is in the following terms: (1) In proceedings to construe a will, evidence (including evidence of the testator's intention) is admissible to assist in the interpretation of the language used in the will if the language makes the will or any part of the will - (a) meaningless, or (b) ambiguous on the face of the will, or (c) ambiguous in the light of the surrounding circumstances. (2) Despite subsection (1), evidence of the testator's intention is not admissible to establish any of the circumstances mentioned in subsection (1) (c). (3) Despite subsection (2), nothing in this section prevents evidence that is otherwise admissible at law from being admissible in proceedings to construe a will.
In "Will Construction" (Paper), NSW Bar Association Succession and Elder Law Committee, 22 March 2023, I stated as follows (omitting footnotes): 104. Despite being operative for 15 years, s 32 has not received a significant amount of judicial attention. The Court of Appeal in James v Douglas referred to its effect in modifying the general law, but without discussing in detail its modifying effect. 105. Perhaps the most recent and helpful discussion regarding the operation of s 32 has been by Robb J in 2019 in Carrington v Wallace and in 2022 in Middleton v Schofield. 106. The term "ambiguous" in the sense used in s 32 means that the term has two possible meanings, when the testator could only have intended to adopt one of those meanings. 107. Robb J observed in Carrington v Wallace that it is necessary to distinguish between ambiguity and mere difficulty of construction stating: 79. The terms of a particular will may give rise to intense difficulty in construction because different aspects of the wording tend to direct the mind to different possible meanings. Different lawyers, including judges, may form inconsistent opinions about the true meaning of the words in a particular will. That does not necessarily mean that the will contains an ambiguity… … 81. The point is that a will is not ambiguous by reason only that it is difficult to determine its true construction. It is important that the distinction be carefully maintained because, otherwise, extrinsic evidence, including evidence of the actual subjective intention of the testator, will be too readily admissible to determine the testator's testamentary intention, in a manner that is inconsistent with the fundamental requirement that the will be in writing, and the cardinal principle of construction that the testator's intention is to be derived from the meaning of the words used in the will. 108. His Honour noted in Middleton v Schofield that consistency of operation of ss 6, 27 and 32 Succession Act may require the Court to take some care 'o distinguish cases where the extrinsic evidence of the testator's actual intention permits meaning to be given and ambiguity to be resolved, compared to cases where "in reality, the Court is asked to give a Will a meaning that depends upon a more probable than not conclusion about the contested effect of extrinsic evidence on so elusive a subject as the real subjective intention of a deceased person". 109. It has been suggested by Dal Pont that the effect of s 32 is that evidence of surrounding circumstances is not admissible to create an ambiguity. The provision does not oust the "armchair principle" but supplements it.
Ms Fendekian submitted that the Court should consider whether any basic scheme can be discerned as to the outcome intended by the testator as to the distribution of his estate, citing inter alia Powell J (as his Honour then was) in Coorey v George (Supreme Court (NSW), Powell J, 27 February 1986, BC8601222, unrep) at 14, in a passage approved by Bryson J (as his Honour then was) in Perpetual Trustee Co Ltd v Wright (1987) 9 NSWLR 18 at 33: DCS [63(2)].
Clearly the Court will, where it can, strive to interpret the wording of the Will to give effect to such a scheme where it is revealed: see also Fairbairn v Varvaressos (2010) 78 NSWLR 577; [2010] NSWCA 234 at [19] per Campbell JA (Macfarlan and Young JJA agreeing).
Where the language is lengthy or obscure, or the effects of the literal reading and the reasoning impliedly underlying it are startlingly unlikely, the scheme of dispositions is very important. However, if the terms of the Will are perfectly clear, such search for a 'scheme' may be of little use: Muir v Winn [2009] NSWSC 857 at [24] per Bryson AJ.

[43]

The structure of the last Will

The last Will is divided into four parts, consisting of: 1. Part A - general provisions, being cll 1-12; 2. Part B - executors' instructions and discretionary powers, being cll 13 and 14; 3. Part C - administrative provisions, being cll 15-22; and 4. Part D - definitions, being cl 23.
The testamentary trust provisions are contained in cl 16.
For present purposes, the relevant provisions of the last Will are contained within Part A.
By cl 1, the deceased revoked her prior testamentary "acts".
By cl 2.1, the deceased appointed the defendant and the plaintiff, together with Mr Gowing, to be her executors.
The dispositive provisions of the last Will are set out in cll 5.1-5.4, 6.1, 7.1-7.3 and 8.1-8.3. Those clauses are in the following terms: 5. Gift of Personal Chattels 5.1. I give, free of all duties and encumbrances, my personal and household chattels as defined in the statute governing the administration of Wills and probate, but excluding any motor vehicles I may own at the date of my death, ("my Chattels") to my son KEVIN WAYNE REEVES on trust to be distributed in accordance with this clause. 5.2. It is my strong wish that my son KEVIN WAYNE REEVES distribute my Chattels in accordance with any list I may leave stored with my Will or amongst my private papers and signed by me provided however that it shall be at my son KEVIN WAYNE REEVES' sole discretion as to when my Chattels are distributed and I release my son KEVIN WAYNE REEVES from any responsibility or liability should my Chattels not be distributed during his lifetime. 5.3. If I fail to leave such a list, or to the extent that any of my Chattels are not listed or distributed, they shall devolve in accordance with the succeeding clauses of this Will. 5.4. The gifts made pursuant to this clause are not to be taken into account in the division of the remaining balance of my Estate in accordance with the clause entitled "Direction to Adjust Entitlements" in Part B of this Will. 6. Gift to Grandchildren 6.1. I give free of all duties and encumbrances, the sum of ten thousand dollars ($10,000.00) to each of my grandchildren who survive me by thirty (30) days upon each grandchild attaining the age of eighteen (18) years. 7. Distribution of Real Estate and Farming Assets 7.1. My Executors shall hold the following property on trust in accordance with Part C of this Will, and dispose of such property as outlined in this clause. 7.2. This clause is subject to the discretionary powers given to my Executors and other clauses in Part B of this Will. 7.3. Each of my sons RUSSELL ROBERT REEVES and KEVIN WAYNE REEVES who survive me by thirty (30) days, shall be the Primary Beneficiary of a trust for the property referred to in this clause. (a) My son RUSSELL ROBERT REEVES shall be the Primary Beneficiary of a trust for property consisting of the balance of the real estate in my property known as "Neilsons" consisting of approximately 100 acres, not already owned by my said son RUSSELL ROBERT REEVES, and more particularly described as Lot [XX] in DP [XXXXXX] and my property known as "Dinga Dee" more particularly described as Lot [X] in DP [XXXXXX] together with improvements thereon. (b) My son KEVIN WAYNE REEVES shall be the Primary Beneficiary of a trust for property consisting of all the livestock, motor vehicles, machinery and plant and equipment owned by me at the date of my death and all the real property owned by me at the date of my death, apart from that referred to in clause 7.3(a) of this Will together with improvements thereon. 8. Division and Distribution of Balance of Estate 8.1. My Executors shall divide the balance of my Estate not already dealt with under the preceding clauses of this Will into the following parts, sections or portions, and shall hold on trust in accordance with Part C of this Will and shall dispose of such parts, sections or portions as outlined in this clause. 8.2. This clause is subject to the discretionary powers given to my Executors and other clauses in Part B of this Will. 8.3. Each of my sons RUSSELL ROBERT REEVES and KEVIN WAYNE REEVES, who survives me by thirty (30) days, shall be the Primary Beneficiary of a trust for the property referred to in this clause. (a) My son RUSSELL ROBERT REEVES shall be the Primary Beneficiary of a trust for one-third of the balance of my Estate. (b) My son KEVIN WAYNE REEVES shall be the Primary Beneficiary of a trust for two-thirds of the balance of my Estate.
Additionally, the last Will contained cl 9 headed "Provision for my Sons" which is in the following terms: 9. Provision for my Sons 9.1. At the time of and in the making of this Will I have considered the current and future needs and requirements of my two sons for maintenance, in the event of my death and have made provision for them in this Will having regard to their respective needs and requirements for maintenance. 9.2. In making provision in this Will for my sons I have also considered the disposition of property made to them during their lives by my late husband and myself.

[44]

Finding

Clause 7.3 is (again) in the following terms: 7.3. Each of my sons RUSSELL ROBERT REEVES and KEVIN WAYNE REEVES who survive me by thirty (30) days, shall be the Primary Beneficiary of a trust for the property referred to in this clause. (a) My son RUSSELL ROBERT REEVES shall be the Primary Beneficiary of a trust for property consisting of the balance of the real estate in my property known as "Neilsons" consisting of approximately 100 acres, not already owned by my said son RUSSELL ROBERT REEVES, and more particularly described as Lot [XX] in DP [XXXXXX] and my property known as "Dinga Dee" more particularly described as Lot [X] in DP [XXXXXX] together with improvements thereon. (b) My son KEVIN WAYNE REEVES shall be the Primary Beneficiary of a trust for property consisting of all the livestock, motor vehicles, machinery and plant and equipment owned by me at the date of my death and all the real property owned by me at the date of my death, apart from that referred to in clause 7.3(a) of this Will together with improvements thereon.
The structure of dispositions by the deceased under the last Will does not give strong guidance as to the true construction of clause 7.3(a).
Little can be gleaned from the gift of personal chattels in cll 5.1-5.4 and the gift to grandchildren (which would have benefited each of Andrew, Stuart and Angela) about which I make no further comment.
The division of residue, whilst unequal, does not itself give any specific clarity to the disposition of real property in clause 7.3.
In relation to cl 9.2, there is no suggestion that the deceased or Jim had made any specific disposition of property to the plaintiff and the defendant during their lifetime.
I confess that there is a curiosity as to why the deceased would have included lot (e) as one of the lots given to the defendant in circumstances where it is effectively landlocked. Mr Doyle, whilst accepting that it was a pertinent query, frankly acknowledged that he had not addressed his mind to it or asked the deceased about access to the lots: T 360.46-361.8. Ms Fendekian submitted that lot (e) was leased and generated income, thus intimating that that was the reason why it might be of use to the defendant: T 439.35.
On a plain reading of cl 7.3(a) there are two lots described: 1. first, "Neilsons" - described in the words "the balance of the real estate in my property known as 'Neilsons' consisting of approximately 100 acres, not already owned by my said son RUSSELL ROBERT REEVES, and more particularly described as Lot [XX] in DP [XXXXXX]… together with improvements thereon"; and 2. second, "Dinga Dee" - described in the words "my property known as 'Dinga Dee' more particularly described as Lot [X] in DP [XXXXXX] together with improvements thereon".
There are essentially two compelling reasons which, to my mind, count against and ultimately foreclose the construction for which the plaintiff contends.
First, each of the properties is described by reference to a name which is followed by the words "more particularly described as…".
The appropriate method for describing landholding will depend upon various factors, including context. The factors include the form of title holding (particularly in the case of a statutory form of title system such as the Torrens system), the location of the property and local or bespoke nomenclature.
Sometimes a testator may intend to identify the subject of the gift by reputation rather than necessarily by strict title identification: e.g. Middleton v Schofield at [39]. There are cases in which the failure of a testator to describe land by reference to a certificate of title reference may create doubt but nonetheless the Court is able to identify the land which is described by a colloquial name as being the subject of the gift: e.g. IMO Leys [2000] VSC 164 at [11] per McDonald J (otherwise described as Edmonston v Friends of Henry George Inc [2000] VSC 164).
For legal purposes, it is a relatively common drafting technique, particularly in relation to land, to describe the land by reference to a formal title description such as a lot and deposited plan number: e.g. Middleton v Schofield at [120]. Indeed, courts regularly make orders which describe land by reference to a street address and then, to remove all semblance of doubt about what land is precisely the subject of the order, use the words "more particularly described (as/in)" followed by the formal title description: see e.g. Gazzo v Comptroller of Stamps (Vic) (1981) 149 CLR 227 at 230 per Gibbs CJ; [1981] HCA 73 (referring to an order of the Victorian Supreme Court).
Occasionally, cases may arise where property is said to be "more particularly described" in a schedule and further wording within the schedule creates confusion regarding the precise identification of the land or an aspect of the land: see Alan Wibberley Building Ltd v Insley [1999] 1 WLR 894 at 898-899 per Lord Hoffmann. Nonetheless, the general position is that use of the words "more particularly described (as)", followed by a distinct title reference, is a useful and appropriate drafting technique to remove doubt about what land is precisely the subject of a gift.
In this case, the effect of the words "more particularly described" in relation to each of the properties in cl 7.3(a) of the last Will is to clarify which property is being described and so exclude any residual doubt. If there were any ambiguity between the name of the property and title reference, the words "more particularly described" indicate that what follows by way of title reference is to be decisive in terms of what is given. It was a means of being more precise about, and thus controlling, what property was described by the colloquial name.
Secondly, the argument that "Dinga Dee" should be construed as the 10 lots north of Stroud Hill Road, which the deceased at times described as the "Dingadee lots", loses considerable force by the carving out and specific separate gifting of the "Neilsons" property, which under the plaintiff's argument is one of those "Dingadee lots".
I reject the plaintiff's construction of cl 7.3(a) to the extent that it asserts that the reference to "Dinga Dee" should ultimately be read as the 10 lots north of Stroud Hill Road which the deceased at times described as the "Dingadee lots".

[46]

Principles

The rectification claim is made pursuant to s 27(1) of the Succession Act. Section 27 applies to a Will whether made before, on or after 1 March 2008 (the commencement of the Succession Act) if the testator dies on or after that date: Sch 1, cl 3(3) Succession Act.
Section s 27(1) of the Succession Act provides as follows: (1) The Court may make an order to rectify a will to carry out the intentions of the testator, if the Court is satisfied the will does not carry out the testator's intentions because-- (a) a clerical error was made, or (b) the will does not give effect to the testator's instructions.
An application for rectification must be made within 12 months after the date of death of the testatrix: s 27(2) Succession Act.
The deceased died on 28 May 2021. The statement of claim which sought an order for rectification was filed on 27 May 2022: CB 1, 3. Accordingly, the rectification claim was made just within time.
In Singh v Singh [2018] NSWCA 30 (Singh v Singh), Gleeson JA (with whom Leeming JA and White JA agreed at [319] and [326], respectively) stated: 190. There are some differences between the statutory language of s 27 of the Succession Act and s 29A of the WPAA [Wills, Probate and Administration Act 1898 (NSW)]. Section 27(1) specifies two grounds on which the Court must be satisfied that the will does not carry out the testator's instructions, namely, clerical error and that the will does not give effect to the testator's instructions. By contrast, s 29A(1) of the WPAA did not specify any such grounds; s 29A provided that a court of probate had a power of rectification "if satisfied that a will is so expressed that it fails to carry out the testator's intentions". 191. In Rawack v Spicer [2002] NSWSC 849 at [26], Campbell J stated the principles governing the power of the Court under s 29A of the WPAA as follows: Before the power of rectification can be exercised, the court must be satisfied both that the will was so expressed that it fails to carry out the testator's intentions, and also what it was that the testator intended concerning the part of the will which is to be rectified. Even if the court is satisfied that a testator would not have wanted his property to go in the way that, in the events which have happened, a particular clause results in the property going, the court can rectify the will only if it is satisfied about what the testator actually intended to happen to his property in that particular event: Brian William Mortensen v State of New South Wales (New South Wales Court of Appeal, 12 December 1991, unreported); Re Estate of Max Frederick Dippert [2001] NSWSC 167 (Young J, 20 March 2001, unreported). "It is not enough for the Court to have the opinion that, if the deceased had considered the possibility, she probably would have provided in favour of [a named beneficiary]. What is required is an actual intention, which has miscarried": Trimmer v Lax (Hodgson J, 9 May 1997, unreported at 12). 192. The standard of proof required in the rectification of a will is "clear and convincing proof" on the balance of probabilities: Re Estate of Max Frederick Dippert [2001] NSWSC 167 at [34] (Young J); Rawack v Spicer at [30] and [31]. 193. The relevant intention of the testator must be examined as at the date of the will, not the date of death: Rawack v Spicer at [27]-[28]; Vescio v Bannister [[2010] NSWSC 1274] at [5]. 194. In Vescio v Bannister, Barrett J considered the meaning of the terms "instructions" and "intentions" of the testator. His Honour stated at [12]-[15]: [12] Implicit in s 27(1)(b) is an assumption that the testator gave "instructions" as to the content of the will. "Instructions" are, of their nature, communicated by one person to another with a view to compliance or obedience by that other person. It seems to follow that s 27(1)(b) cannot apply to a will composed and written by the testator personally. [13] In the present case, the will was drawn by a solicitor. There is evidence about the communication by the deceased to the solicitor of "instructions", in the sense of expression by her of her wishes as to how her estate should be disposed of by the will the solicitor was asked to prepare. The court thus has a basis for making findings as to the content of "the testator's instructions". [14] Having ascertained "the testator's instructions", the court must construe the will as executed and compare its effect, according to its proper construction, with those "instructions": ANZ Trustees Ltd v Hamlet [2010] VSC 207 at [3]; and see the course of analysis and comparison in The Public Trustee of Queensland v Smith [2008] QSC 339; [2009] 1 QdR 26. Only if some discrepancy appears can an order be made under s 27; and the only permissible order is one that causes the will to be in a form that carries out the testator's "intentions". [15] It follows that the court must also make findings about the "intentions" of the testator - necessarily, of course, the "intentions" existing when the will was made. It is those "intentions" that any rectifying order must reflect. Although the legislation does not expressly say so, it must, I think, be inferred that the "intentions" of the testator correspond, as to content, with "the testator's instructions". I say this because, in the ordinary course, a testator's intention is that his will should implement the instructions he gives for its preparation. It is with that intention that s 27(1)(b) is concerned. This seems to have been assumed in both Re Hawkes [2005] VSC 93 (at [17]) and Lawler v Herd [2010] QSC 281. 195. In Lockrey v Ferris [2011] NSWSC 179 at [73], Hallen AsJ helpfully identified three questions posed by s 27 of the Succession Act. First, what were the testator's actual intentions as regard to dispositions in respect of which rectification is sought? Second, is the will expressed so that it fails to carry out those intentions? Third, is the will expressed as it is in consequence of, either a clerical error, or a failure on the part of someone to whom the testator gave instructions in connection with the will, to comply with those instructions?
Further, in Bear v Bear; Jordan v Bear [2022] NSWSC 1687, I noted: 222. The power of rectification is permissive: Estate of Aspasia Kandros [2019] NSWSC 757 at [59] per Hallen J. 223. The reference to the testatrix's intentions is essentially directed at mistakes in expressing the testatrix's intention rather than matters relating to lack of vision or perception or knowledge: see Estate of Kandros at [65] citing, inter-alia, Re Swain (Dawn) [2008] NSWSC 1343 at [25]-[27] per Young CJ in Eq (as his Honour then was). 224. The Court in this regard must make findings about the intentions of the deceased being the actual intention not what the intention probably would have been had the will-maker thought about the matter: Estate of Kandros at [61]. 225. Although the standard of proof for rectification is on the balance of probabilities, it is understood that clear and convincing proof is required: Lockrey v Ferris [2011] NSWSC 179 at [70] per Hallen AsJ (as his Honour then was) citing, inter alia, Re Estate of Dippert [2001] NSWSC 167 at [34] per Young J (as his Honour then was).
In addressing the "clerical error" part of the United Kingdom equivalent rectification provision, Lord Neuberger of Abbotsbury PSC in Marley v Rawlings [2015] AC 129; [2014] UKSC 2 (with whom Lord Clarke of Stone-cum-Ebony, Lord Sumption, and Lord Carnwath JJSC agreed; Lord Hodge JSC also agreed though confining himself to some observations on how Scots law might have dealt with the problem if it were the governing law: at [87]) stated at [71] that the best judicial summary of the effect of the cases then so far decided on s 20(1)(a) of the Administration of Justice Act 1982 (UK) was given by Blackburne J in Bell v Georgiou [2002] EWHC 1080 (Ch); [2002] WTLR 1105 at [8]: The essence of the matter is that a clerical error occurs when someone, who may be the testator himself, or his solicitor, or a clerk or a typist, writes something which he did not intend to insert or omits something which he intended to insert . . . The remedy is only available if it can be established not only that the will fails to carry out the testator's instructions but also what those instructions were.
The full version of that paragraph is as follows: 8. A clerical error is: An error made in the process of recording the intended words of the testator in the drafting or transcription of his will ×" See Wordingham v Royal Exchange Trust Co Limited [1992] Ch 412 at 419. The essence of the matter is that a clerical error occurs where someone, who may be the testator himself, or his solicitor, or a clerk or typist, writes something which he did not intend to insert or omits something which he intended to insert. This is to be contrasted with a failure to understand the testator's instructions where what is involved is a misunderstanding or breakdown in communication between the testator and his solicitor, or between the testator and the person who is writing out the will. See Hawkins On The Construction of Wills, Fifth Edition, at paragraph 1-10. The remedy is only available if it can be established not only that the will fails to carry out the testator's instructions but also what those instructions were. It will not be available where the mistake occurs, inter alia, because the testator never had any intention relevant to the events which actually occurred or he failed to appreciate the legal effect of the words used in his will. Moreover, as was made clear in Re Segelman (decd) by Chadwick J (at 184): ×although the standard of proof required in a claim for rectification made under section 20(1) of the Act of 1982 is that the court should be satisfied on the balance of probability, the probability that a will which a testator has executed in circumstances of some formality reflects his intentions is usually of such weight that convincing evidence to the contrary is necessary." This passage was referred to with approval by Sir Christopher Slade in Walker v Geo Hewson Medlicott & Son (a firm) [1999] 1AER 685 at 690. The "contrary" to which the passage refers is that the testator intended his will to contain a provision different from what it actually contains.
Section 20(1) of the Administration of Justice Act 1982 (UK) provides as follows: If a court is satisfied that a will is so expressed that it fails to carry out the testator's intentions, in consequence - (a) of a clerical error; or (b) of a failure to understand his instructions, it may order that the will shall be rectified so as to carry out his intentions.
Whilst the United Kingdom provision has a different second limb basis for rectification, the United Kingdom caselaw, in so far as it deals with the clerical error limb, has been cited and applied in Australia: e.g. GE Dal Pont, Law of Succession (3rd ed, 2021, LexisNexis) (Dal Pont, Law of Succession) at 80-81 [2.65]; see generally Daniel J Carr, "Rectification of testamentary writings in Scotland, England and Wales, and Australia" (2023) 17 J Eq 181 at 194-195.
In the United Kingdom, it has been said that the adjective "clerical" targets the nature of the error, not the nature of the person who made it: Dal Pont, Law of Succession at 80-81 [2.65], citing Re Williams (deceased) [1985] 1 All ER 964 at 969 per Nicholls J.
However, because of the differences in the statutory provision, one needs to be careful not to completely adopt the English authorities without some degree of care. For example, as I have observed, the nature of the second limb in s 27(1)(b) ("the will does not give effect to the testator's instructions") differs from the United Kingdom provision ("of a failure to understand his instructions"). In Vescio v Bannister (Estate of the late Betty Tait) [2010] NSWSC 1274, Barrett J doubted that s 27(1)(b) could apply to a Will composed and written by the testator personally, stating at [12]: Implicit in s 27(1)(b) is an assumption that the testator gave "instructions" as to the content of the will. "Instructions" are, of their nature, communicated by one person to another with a view to compliance or obedience by that other person. It seems to follow that s 27(1)(b) cannot apply to a will composed and written by the testator personally.
Mr Birtles submitted that earlier English authorities interpreting "clerical error" broadly have been followed in Australia, citing Re Will of McCowen [2013] NSWSC 1000; (2013) 9 ASTLR 337 (Re Will of McCowen) at [15], per Young AJ: POS [38].
Young AJ's comments in Re Will of McCowen are interesting. His Honour stated there: 13. There are two questions to be addressed under the first limb: (a) Do the facts show that there was a "clerical error"? (b) Must the "clerical error" be the sole or dominant cause of the error? 14. The alleged "clerical error" is that the paralegal misread the solicitor's notes as to her instructions when preparing the draft. 15. In England, the term "clerical error" in this branch of the law has been widely interpreted. The term not only covers errors in the process of recording the intended words of the testator but also extends to situations where the person drafting the will has not appreciated the significance or effect of the introduction (or deletion) of a particular provision: Wordingham v Royal Exchange Trust Co Ltd [1992] Ch 412, In re Segelman [1996] Ch 171 and Marley v Rawlings [2011] 1 WLR 2146. However, executing the wrong will is not within the term (Marley's case) nor is the failure of the drafter to understand the testator's instructions: In re Segelman, Pengelly v Pengelly [2008] Ch 375 and see Vescio v Bannister [2010] NSWSC 1274. 16. In my view the present problem comes within the concept of "clerical error". 17. Question (b) posed above is more difficult. It arises as a result of the word "because" in s 27(1). 18. In the present case, the error came about (a) through the clerical error, (b) because the solicitor failed to ensure that the testator only executed the will after it was approved by a qualified person and (c) because the will was not explained to the testator, the paralegal merely asked him to read it, which is usually insufficient. 19. Indeed, the facts of this case show a most unsatisfactory system in this law office for performing the important task of making wills. 20. I have not found any previous decision on the point. However, it seems to me that remedial legislation should be liberally construed and that so long as the clerical error is the principal reason as to why the will does not carry out the testator's intentions, the first limb is satisfied.
Section 27(1) of the Succession Act contains the conjunction "because". The word "because", in context, connotes a basis for something occurring "for the reason that; due to the fact": Macquarie Dictionary, online ed.
I accept that s 27(1)(a) of the Succession Act requires that there be some connection between the clerical error and the failure that the Will does not carry out the testator's intentions.
However, I have to confess that, for my part, I would doubt that the second question posed by his Honour in Re Will of McCowen at [13] is an apt question and that the indication that the clerical error is the "principal" or "sole or dominant" reason as to why the Will does not carry out the testator's intentions is a requirement of the statutory provision.
The statutory power of rectification is not qualified in those terms. As a matter of statutory construction, it is inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words: Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 at [55] per Gummow ACJ, Kirby, Hayne and Heydon JJ, citing inter alia Owners of "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404 at 421 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ; [1994] HCA 54 .
The notion of there being a requirement that the error be the "principal" or "sole or dominant" reason as to why the Will does not carry out the testator's intentions has not been adopted in other cases.
In Lockrey v Ferris [2011] NSWSC 179, Hallen AsJ (as his Honour then was) simply used the words "in consequence of" at [73] in describing the application of s 27(1) of the Succession Act. Thus, his Honour stated (my emphasis): Thus, the three questions posed by the section are, first, what were the testator's actual intentions with regard to dispositions in respect of which rectification is sought; second, is the will expressed so that it fails to carry out those intentions; and, third, is the will expressed as it is in consequence of either a clerical error, or a failure on the part of someone to whom the testator gave instructions in connection with the will, to comply with those instructions?
The astute observer will note that the conjunction "in consequence of" is used in the United Kingdom equivalent legislation (section 20(1) of the Administration of Justice Act 1982 (UK), which I have outlined above) in the equivalent place where the word "because" is used in s 27(1) of the Succession Act.
Strictly, it seems to me that there is no need, in applying the provisions of s 27(1), to use a word other than the word "because", being the word found in the statute's text. Nonetheless, I note that in the extract from Singh v Singh, Gleeson JA at [195] referred to Hallen AsJ's comments above, describing them as a helpful identification of the questions posed by the section (Leeming JA at [319] and White JA at [326] agreeing). His Honour thus accepted that the conjunction "in consequence of" is a "helpful" way of understanding the meaning of the word "because" in s 27(1).

[47]

Issue 4(a): Rectification issue - lot 1 replacement

In outlining the case for rectification, Mr Birtles essentially advanced a theory that "advisor initiative" led to the inclusion of folio identifiers in cl 7.3(a) of the last Will: PCS [56], [60].
The essence of Mr Birtles' argument is as follows (POS [54(a)-(e)]): 1. there was no property known as "Dinga Dee", rather the deceased intended to refer to her property known as "Dingadee"; 2. the process of Mr Doyle and Mr Gowing converting the deceased's instructions into the terms of cl 7 of the last Will miscarried in a way not made clear by the affidavit evidence. If there was not a failure to follow the deceased's instructions, there was a clerical error in translating the guiding instructions (that the plaintiff receive "Dingadee" and "Neilsons") into the words contained in cl 7.3(a) of the last Will; 3. the deceased did not intend the gift of the land known as "Dingadee" to be limited to Lot X DP XXXXXX (lot (a)), which was the original Dingadee Dairy site; 4. the deceased intended to give the plaintiff the land known as "Dingadee", which was the land owned by her north of Stroud Hill Road, and intended to give to the defendant the land known as "Kennilworth" to the south of Stroud Hill Road; and 5. there is an abundance of armchair evidence to support the plaintiff's contentions as to the deceased's intentions.
Mr Birtles submitted that the evidence as a whole, properly reconciled, is that the deceased gave instructions that the plaintiff was to receive "Dingadee" and "Neilsons", but there was no process by which the deceased was asked to point at a map for the purposes of identifying a lot: T 401.18-22. His explanation for the deceased distinguishing "Neilsons" from "Dingadee" is that, because Lot X in DP XXXXX was subdivided (in 1987: CB 98[108]) giving rise to two lots (being "Neilsons", lot (b), and the plaintiff's lot, lot (c)), the deceased wanted to make sure that the plaintiff got "Neilsons" (lot (b)): T 401.24-29.
Mr Birtles submitted that the deceased intended to identify the subject of the gift in part by general reputation or the deceased's own dictionary, rather than necessarily by strict title identification: T 409.9-410.34 (see e.g. Middleton v Schofield at [39]).
However, he says that if part of Mr Gowing and Mr Doyle's conversation with the deceased was about squaring up the plaintiff's boundaries, then lot (e), which is surrounded by lot (a) and the northern railway line, "sticks out like a sore thumb" and it is "just completely inexplicable that he [Mr Doyle] would not have asked about what should happen to that lot": T 401.31-35.
The evidence about squaring up boundaries references what Mr Gowing said in cross-examination, namely, that his strongest recollection of the deceased's instructions was that she wished to "square up the boundaries" around the plaintiff's house: T 325.14-16, 331.30-32.
However, Mr Birtles also submitted (at T 390.30-33): BIRTLES: One of the conversations that Mr Gowing refers to is squaring off Russell's boundaries. That can only be a reference to Nielson's. It would not make sense for it to refer to lot [X] of [XXXXXX] [lot (a)], which is the other side of the railway line and which excludes lot [X]/[XXXXXX] [lot (e)].
I do not think that it is "completely inexplicable" that Mr Doyle would not have asked about lot (e). He accepted that he was not familiar with the deceased's landholdings.
Mr Birtles accepted that he could not point to any evidence which suggested that the deceased's instructions to Mr Doyle and Mr Gowing were that the leased lots were to go to the plaintiff: T 403.19-21.
Mr Birtles acknowledged that, if I accepted the evidence of Mr Gowing and Mr Doyle that the deceased pointed at a part of the map, it left "little room for the construction part of the case", and I infer also little room for the rectification claim: T 388.26-40.
Ultimately, Mr Birtles submitted that, between 22 and 28 June 2010, Mr Gowing went out to see the deceased alone for the purpose of obtaining information about the acquisition date and cost base for her properties: T 398.45-47.
As indicated above, I accept Mr Gowing's evidence that the annotations appearing on the North map and South map were provided, as he says, by the deceased to him on an occasion on which he met the deceased without Mr Doyle being present.
The notion that the North map and South map were prepared for the purposes of assisting Mr Gowing for tax and accounting considerations is in part correct. However, contrary to the submissions or case theory of Mr Birtles, that of itself does not mean that the North map and South map were not present or provided at the instructions conference and that Mr Gowing and Mr Doyle had incomplete information: PCS [62]; T 388, 390.39-43.
I find that the North map and South map were present at the instructions conference and, relevantly, the deceased pointed out to Mr Doyle the lots being "Dingadee" and "Neilsons".
I further find that the deceased's instructions, in the above respect clarified by her act of pointing to the lots, were to give to the plaintiff the two lots "more particularly described" in cl 7.3(a) of her last Will as follows: … my property known as "Neilsons" consisting of approximately 100 acres, not already owned by my said son RUSSELL ROBERT REEVES, and more particularly described as Lot [XX] in DP [XXXXXX] and my property known as "Dinga Dee" more particularly described as Lot [X] in DP [XXXXXX]…
Mr Birtles submitted that it would perhaps not have been as apparent to a lay person that the words "more particularly described as", in terms of identifying land, have the effect of refining or being more precise or controlling what was described: T 394.47-395.2.
In light of my finding that the deceased particularly identified the lots which she wished to gift to the plaintiff by pointing to them on the maps, there is no need for me to speculate further about that matter. However, I seriously doubt that the deceased would not have understood the words "more particularly described" as confining the gifting to the two specified lots. Even if one assumes that the deceased did not know the precise lot numbers for each of the 21 lots that she held, to my mind it is unlikely that: 1. the deceased was unaware that only two lots were specified; and 2. the deceased would not have realised that the reference to a single lot number (being Lot X DP XXXXXX) could not possibly have been sufficient to convey title to 10 or more lots, had she intended to encompass numerous lots under the description "Dinga Dee".
I reject the submission that the deceased sought by her last Will to divide the collective farm as a whole by reference to the two dairies. By 2010 the two dairies did not exist as such: T 397.28-37.
I reject the submission that the deceased sought to divide the land by reference to what was known as "Dingadee" (in the sense of being 10 or more lots) against what was left for the defendant: T 397.39-41.
In light of the deceased's express instructions, there is no scope for the so-called "abundance of armchair evidence" regarding the deceased's intentions on other occasions separate from the instructions for the last Will (as given in the instructions conference and confirmed on the occasion of the execution of the last Will).
In light of the above, I reject the claim for rectification of the last Will as sought.

[50]

Proprietary estoppel by encouragement

The precise nature of the equitable estoppel relied upon was not identified by the plaintiff's pleading. However, the plaintiff's opening submissions made it clear that what is pressed is a proprietary estoppel claim, specifically estoppel by encouragement: POS [40]-[43], referring to Daniel v Athans [2022] NSWSC 1712 (Daniel) at [24] and [25] per Robb J, and Thorner v Major at [8] per Lord Hoffmann, and at [56]-[58] per Lord Walker of Gestingthorpe.
Mr Birtles submitted that the measure of relief usually reflects the value of the promise, citing Priestley v Priestley [2017] NSWCA 155 (Priestley v Priestley) at [160], [164] per Emmett AJA: POS [53].
Traditionally, proprietary estoppel has been used to refer to one or other, or both, of two established forms of equitable estoppel, being the doctrines descended from Dillwyn v Llewelyn (1862) 4 De GF & J 517; 45 ER 1285 and Ramsden v Dyson (1866) LR 1 HL 129. In simple terms, the doctrine associated with Dillwyn v Llewelyn is otherwise known as estoppel by encouragement, and the estoppel descended from Ramsden v Dyson is otherwise known as estoppel by acquiescence or standing by: see generally JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow and Lehane's Equity Doctrine & Remedies (5th ed, 2014, LexisNexis Butterworths) (MGL) at 519 [17-065].
Estoppel by encouragement is founded in an assumption as to the future acquisition of ownership of property which has been induced by a representation or promise upon which there has been detrimental reliance by the plaintiff: see Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220 (Q v E Co) at [15] per Meagher JA (Leeming and Payne JJA agreeing).
In an often-cited passage in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7, Brennan J described the requirements for establishing equitable estoppel in the following terms (at 428-429): In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise. For the purposes of the second element, a defendant who has not actively induced the plaintiff to adopt an assumption or expectation will nevertheless be held to have done so if the assumption or expectation can be fulfilled only by a transfer of the defendant's property, a diminution of his rights or an increase in his obligations and he, knowing that the plaintiff's reliance on the assumption or expectation may cause detriment to the plaintiff if it is not fulfilled, fails to deny to the plaintiff the correctness of the assumption or expectation on which the plaintiff is conducting his affairs.

[52]

Reliance

In relation to reliance, Mr Birtles referred to Gillett v Holt [2001] Ch 210 (Gillett v Holt) at 227-228 per Robert Walker LJ and Priestley v Priestley at [135]-[137], and noted that the question of reliance is to be determined from the whole of the evidence, on the balance of probabilities (citing Moore v Aubusson [2020] NSWSC 1466 at [402] per Ward CJ in Eq (as the President then was)): POS [44]-[48]. Ms Fendekian referred to Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 (Sidhu v Van Dyke) at [58] per French CJ, Kiefel (as her Honour then was), Bell and Keane JJ, and at [90]-[93] per Gageler J (as the Chief Justice then was): DCS [133]-[134].
In relation to the principles of reliance, in Shymko v Lach [2022] NSWSC 1096 I stated as follows: 558. The appeal to the High Court in Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 in particular focused upon the question of reliance. 559. The majority described one of the questions arising in the appeal as concerning the sufficiency of proof of detrimental reliance required to give rise to a sound claim for relief based on equitable estoppel: at [2]. 560. The majority said in relation to reliance (at [58]): "In point of principle, to speak of deploying a presumption of reliance in the context of equitable estoppel is to fail to recognise that it is the conduct of the representee induced by the representor which is the very foundation for equitable intervention. Reliance is a fact to be found; it is not to be imputed on the basis of evidence which falls short of proof of the fact. It is actual reliance by the promisee, and the state of affairs so created, which answers the concern that equitable estoppel not be allowed to outflank Jorden v Money by dispensing with the need for consideration if a promise is to be enforceable as a contract. It is not the breach of promise, but the promisor's responsibility for the detrimental reliance by the promisee, which makes it unconscionable for the promisor to resile from his or her promise. In Giumelli v Giumelli, Gleeson CJ, McHugh, Gummow and Callinan JJ approved the statement of McPherson J in Riches v Hogben that: 'It is not the existence of an unperformed promise that invites the intervention of equity but the conduct of the plaintiff in acting upon the expectation to which it gives rise.'" (footnotes omitted) … 562. Gageler J who agreed with the joint reasons stated at [90]-[91] as follows: "90. Paraphrasing Dixon J in Thompson v Palmer, the respondent bore the onus of establishing that she believed the appellant's representations and that, on the faith of that belief, she took a course of action or inaction which would turn out to be to her detriment were the appellant to be permitted to depart from those representations. The respondent did not need to establish that the belief to which she was induced by the appellant's representations was the sole or predominant cause of the course of action or inaction she took but, in the language of Rich, Dixon and Evatt JJ in Newbon v City Mutual Life Assurance Society Ltd, she did need to establish that the belief was a "contributing cause". 91. To establish that the belief to which she was induced by the appellant's representations was a contributing cause to the course of action or inaction which she took, the respondent needed to establish more than that she had the belief and took the belief into account when she acted or refrained from acting. She needed to establish that having the belief and taking the belief into account made a difference to her taking the course of action or inaction: that she would not have so acted or refrained from acting if she did not have the belief." 563. His Honour then stated at [93] that the question of causation is ordinarily framed in the following terms: "The question of causation is therefore ordinarily appropriately framed, as it was implicitly framed by the primary judge in the present case, as being: 'Despite any other contributing factors, would the party seeking to establish the estoppel have adopted a different course (of either action or refraining from action) to that which [the party] did had the relevant assumption not been induced?'" (footnote omitted) … 565. Often the question of reliance can be difficult to factually assess. 566. Anna Lawson in her article "The things we do for love: detrimental reliance in the family home" (1996) 16 Legal Studies 218 at 230-231 made the following observation: "The detrimental reliance requirement of constructive trusts and proprietary estoppel seems to cause few problems when applied to dealings between strangers. However, when the parties concerned are not strangers, but have lived together in a relationship akin to marriage, it is almost impossible to determine whether or not there was any detrimental reliance on that assurance. During the course of such relationships, the parties will inevitably change their positions in all sorts of ways and for all sorts of reasons. Allegations of detrimental reliance require judges to decide which of these changes of position would be factually disadvantageous to a claimant, should an assurance of ownership subsequently be denied, and to decide which of them were motivated by beliefs arising from that assurance. Not surprisingly, the results arrived at in the reported cases appear to be arbitrary and unrealistic." (footnote omitted) …

[53]

Considering the "counterfactual position"

The party relying on the estoppel must establish that it would have acted differently in the absence of the relevant encouragement: Q v E Co at [88], citing Sidhu v Van Dyke at [66], [67], [69] per French CJ, Kiefel, Bell and Keane JJ and [91] per Gageler J.
As estoppel by encouragement serves to vindicate the expectations of the representee against a party who seeks unconscionably to resile from an expectation he or she has created, it is necessary to consider the "counterfactual position" of how the representee would have acted differently in the absence of the relevant encouragement. The extent to which it is unconscionable of the deceased's estate to seek to resile from the position expressed in the deceased's assurances to the plaintiff may be gauged by reflecting on the plaintiff's likely response if told from the outset that the promises were not intended to be binding, or warned that the deceased gave no undertaking or assurance as to the plaintiff's inheritance of the farms: Q v E Co at [89], [91], citing inter alia Sidhu v Van Dyke at [77] and Priestley v Priestley at [124].
In Q v E Co, Meagher JA quoted at [89] the influential unreported judgment of Hoffmann LJ in Walton v Walton (CA, 14 April 1994) when his Lordship stated: one does not test reliance by asking what the plaintiff would have done if [the promise] had never been made. One asks what he would have done if, the promise having been made, he had been told that it would not be kept.
Care needs to be given to framing the counterfactual position. Options open to the representee might not necessarily be limited to a binary choice: Q v E Co at [106].
It is not necessary for the representee to articulate precisely what he would (counterfactually) have done: Priestley v Priestley at [147]. Accordingly, the fact that the representee's evidence as to what he would have done is only raised as a possibility, and is qualified by adverse concessions as to the desirability of such a choice, does not necessarily preclude a finding of reliance: Q v E Co at [106].
Sometimes, a plaintiff's evidence of what he or she would have done if told the promises were not intended to be binding or warned that the deceased gave no undertaking or assurance as to the outcome of the promises (such as the plaintiff's inheritance of a farm or part thereof) is equivocal: Q v E Co at [96].
Some degree of caution is justified in assessing such evidence because it is hypothetical, and may be self-serving: Q v E Co at [116].
In D Capital 2 Pty Ltd v Western [2022] NSWSC 1064; (2022) 20 BPR 42,919, I addressed the admissibility of evidence of what a party would have done in a hypothetical situation. I stated: 411. Evidence of what a witness or party would have done if been made aware of certain facts or advice had been given is essentially opinion evidence as to what the witness or party would have done in a hypothetical situation. The admissibility of such evidence has been described as entrenched although the caselaw gives judges great caution as to the weight to be given to any such evidence: Roach v Page (No.37) [2004] NSWSC 1048 (Roach) per Sperling J at [276]. 412. Sperling J in Roach commented at [275]-[277] as follows: "275 Mr Roach gave evidence of what he would have done if the correct advice had been given. He said, in his witness statement (Exhibit G), that he would have caused Winnote to apply, first, for an exploration licence and then, after assay of the deposit, a mining lease over the most favourable location. Later, in his oral evidence, he said he would have applied in his own name, allowing Winnote to exploit the resource on the same terms as had been negotiated for Winnote with Mr Sadler in relation to the real property lease. 276 This shift demonstrates the inherent unreliability of direct evidence as to what a person would have done. Evidence of this kind is not evidence of the ordinary kind. It is not evidence of what the witness did or observed. It is really the witness' opinion as to what he or she would have done in a hypothetical situation. The admissibility of such evidence is entrenched. That, however, leaves the question of weight. As was said in Dominelli Ford (Hurstville) Pty Ltd v Karnot Auto Spares Pty Ltd (1992) 38 FCR 471, 483 (per Beaumont, Foster and Hill JJ) such evidence "might well be regarded as carrying little weight". Where the witness is a party with an interest in the proceedings, the court is generally in a better position to opine reliably on the question, by reference to context and probability, than is the witness. 277 In view of the inconsistency in Mr Roach's evidence as to what he would have done, I give no weight at all to his evidence on this topic." 413. Essentially the weight of the "would have done evidence" is to be assessed by reference to context and the surrounding circumstances, probability and other objective evidence: see Roach per Sperling J at [276]; Stealth Enterprises Pty Ltd t/as The Gentlemen's Club v Calliden Insurance Limited [2017] NSWCA 71 per Sackville JA at [87]-[97], Meagher JA at [59]; Ward JA at [76]; Rosenberg v Percival (2001) 205 CLR 434; [2001] HCA 18 at [14]-[16] (Gleeson CJ); [26]-[47] (McHugh J).
Thus, the weight of the "hypothetical" evidence is to be assessed by reference to context and the surrounding circumstances, probability and other objective evidence.

[56]

Detriment

In relation to detriment, Mr Birtles cited Gillett v Holt at 232 per Robert Walker LJ, Sidhu v Van Dyke at 529 per French CJ, Kiefel, Bell and Keane JJ, and Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560; [2014] HCA 14 (Hills) at [150] per Gageler J: POS [49]-[51].
In Q v E Co, Meagher JA (Leeming and Payne JJA agreeing) addressed detriment in the following terms: 123. Equitable estoppels, including proprietary estoppels, share with estoppel in pais the "basal" or "fundamental" purpose of protecting against detriment: Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 418-419 (Brennan J); [1988] HCA 7; Sidhu at [79]-[82]. In this context detriment is the prejudice or disadvantage that the party attempting to set up the estoppel would suffer by reason of his or her change of position in reliance on the encouraged expectation, if it were to be departed from: Grundt v Great Boulder Pty Gold Mines Ltd (1939) 59 CLR 641 at 674-675 (Dixon J); [1937] HCA 58. 124. However, the requirement of detriment in proprietary estoppel is to be understood neither narrowly nor technically: Donis v Donis (2007) 19 VR 577; [2007] VSCA 89 at [20]; Heydon, Leeming and Turner, Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (LexisNexis Butterworths, 5th ed, 2015) at [17-125]. As Nettle JA said in Donis at [20], citing Gillett v Holt [2001] Ch 210 at 232: The requirement must be approached as part of a broad inquiry as to whether departure from a promise would be unconscionable in all the circumstances. 125. Thus, detriment sufficient to support an estoppel by encouragement need not involve expenditure of money on the property the subject of the estoppel or otherwise, or be capable of financial quantification: Walsh v Walsh [2012] NSWCA 57 at [14]. It is well recognised that detriment in the relevant sense may flow from having significantly changed the course of one's life: see Riches v Hogben [1985] 2 Qd R 292, where the detriment was constituted by the plaintiff selling his possessions, giving up a house in England, and bringing his family to Australia in reliance on an expectation that the defendant, his mother, would provide a house in his name if he and his family migrated; and Delaforce, where, when settling proceedings in the Family Court, and in reliance on a promise that the deceased would bequeath a property to her, the plaintiff gave up a claim to an amount of $50,000 and did not seek an order that she should have title to the property after the death of her former husband.
In the joint judgment in Sidhu v Van Dyke, their Honours addressed detriment at [84] as follows (footnote omitted): If the respondent had been induced to make a relatively small, readily quantifiable monetary outlay on the faith of the appellant's assurances, then it might not be unconscionable for the appellant to resile from his promises to the respondent on condition that he reimburse her for her outlay. But this case is one to which the observations of Nettle JA in Donis v Donis are apposite: [H]ere, the detriment suffered is of a kind and extent that involves life-changing decisions with irreversible consequences of a profoundly personal nature ... beyond the measure of money and such that the equity raised by the promisor's conduct can only be accounted for by substantial fulfilment of the assumption upon which the respondent's actions were based.
In Maxwell v Maxwell [2022] NSWSC 1028, Ward P made reference to the above comments of the joint judgment in Sidhu v Van Dyke, although on the facts of that case her Honour did not accept that there had been detrimental reliance in the sense of a life-changing decision in reliance upon the assumption (at [252]).

[57]

Relief - including proportionality and the significance of "countervailing benefits"

In relation to relief, Mr Birtles extracted a number of principles drawn from the decision of Robb J in Lewis v Stewart [2018] NSWSC 1186 at [219], in turn being an edited germane version of the principles stated by Handley AJA in Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84 (Delaforce) at [53]-[78]. Mr Birtles' summary is as follows (POS [52]): 1. The expectation basis of the equity favours the view that the prima facie entitlement is to satisfaction of the relevant expectation. 2. The quality of the assurances which gave rise to the claimant's expectations is an important factor. 3. Relief in estoppel cases is not limited to reversing the detriment suffered by the party establishing the estoppel, but rather by fulfilling the expectation (citing Giumelli v Giumelli (1999) 196 CLR 101 at 120 and 125; [1999] HCA 10 (Giumelli v Giumelli)). 4. Relief very much depends on the facts such that the Court must look at the circumstances in each case to decide in what way the equity can be satisfied. 5. Subsequent events may reduce or enlarge the plaintiff's equity. 6. Relief may be limited where enforcement of the plaintiff's expectation would be out of all proportion to the detriment. 7. The Court should, prima facie, enforce a reasonable expectation which the party bound created or encouraged, citing Giumelli v Giumelli at 123, quoting with approval the statement from Deane J in Commonwealth v Verwayen (1990) 170 CLR 394 (Verwayen) at 443; [1990] HCA 39.
In Q v E Co, Meagher JA posed the following question at [131]: Where a person has significantly changed the course of his or her life in reliance on an expectation, how far must it be proven that those changes were ultimately to his or her financial disadvantage, all things considered?
To enliven the question of relief, there must be detriment that is sufficiently substantial, real or material to bind the conscience of the party said to be estopped: Q v E Co at [127].
There may be cases in which an estoppel is established but the disproportion between detriment and expectation is so great that conscience does not require the party estopped to make good the assurance: Q v E Co at [127], citing Sidhu v Van Dyke at [85] and Giumelli v Giumelli at [40]-[48].
In relation to proportionality and the significance of "countervailing benefits", Meagher JA stated as follows in Q v E Co: The significance of "countervailing benefits" 154. As Dixon J explained in the passage of Grundt cited above at [123], the assessment of detriment requires that a comparison be made between the positions the sons currently occupy and those they would have occupied had they not changed their positions in reliance on the holding/inheritance expectation. There will be an estoppel if the sons would suffer prejudice or disadvantage by reason of their changes of position if Q were to depart from that expectation. The fact that each has received and retains a quarter share in E Co is plainly a matter to be taken into account in assessing whether they would be prejudiced or disadvantaged in that event. 155. There is nothing contrary to Giumelli or Sidhu in having regard to the benefits which accrued to a party attempting to set up an estoppel. The suggestion that doing so reflects English rather than Australian law - as it was put, "positive" rather than "negative" proportionality - confuses two questions, namely whether there is detriment and whether, where there is, the ordinary or usual remedy will be to require the party estopped to make good the encouraged expectation. It is possible to conceive of cases in which a party relying on an expectation will have benefitted so greatly through his or her reliance that he or she would suffer no prejudice or disadvantage if the expectation were departed from. In such a case conscience would be unlikely to require that the party who created the expectation make it good, in whole or part. 156. The authorities concerned with "life-changing" decisions do not suggest otherwise. In each of them there is an examination of the change of position which is directed to determining whether those decisions would be liable to operate as a source of prejudice, if the relevant expectations were departed from: see Giumelli at [21]-[27]; Donis at [48]-[60]; Sidhu at [76]-[77]; Gillett at 234-235; Riches at 301. 157. What is foreclosed by authority is attempting to quantify all forms of advantage and disadvantage when making a comparison between the relying party's position in fact and their position as it might have been in the absence of reliance on the encouraged expectation. In oral argument Q's counsel accepted that that exercise does not require any precise calculation, and that it may involve evaluative judgments as to the possibility of more favourable outcomes in the counterfactual. However, he submitted that "the conditions of B and C here are stark" and that the way the case was put required the primary judge to engage in some form of evaluative process, as the Chief Justice did in Ashton v Pratt… 158. Thus, the question becomes whether this was a case in which there were opportunities forgone by B and C through reliance which cannot readily be valued but which nevertheless cannot be rejected as carrying only a fanciful or unrealistic prospect that the party encouraged would have been better off. As Allsop P observed in Delaforce at [5]: The importance of keeping a party to a representation or encouragement previously made is all the stronger where, as here, the encouragement or representation has been relied upon by a party to abandon a course of conduct that could possibly have led to a different outcome. This can be described in the language of loss of a chance that is not fanciful or unrealistic, or in the language of proceeding thereafter on the basis of a new or changed convention or conventional basis... For instance, if, as here, in reliance upon a representation or encouragement, a court case is abandoned and the representation or encouragement is later sought to be resiled from, the party to whom the representation or encouragement was made and in whom the expectation was raised is left in the position not only of the loss of the entitlement to pursue his or her rights in the case in the past, but also is likely to be in the position of being unable to demonstrate what would, or even may, have happened in the case, it being an alternative, complex and now hypothetical body of human conduct. That the party encouraged cannot show that he or she would have been better off in the posited alternative reality is not fatal to the making out of the estoppel. Indeed, the inability to prove such things reveals a central aspect of the detriment: being left, now, in that position. Of course, if it is self-evident or can be clearly demonstrated that the case was fanciful or otherwise doomed to fail, there may be no real detriment; but that was not the case here. See also Giumelli at [27]; Gillett at 235; Walsh at [26].
Particular care is needed in identifying what may be taken into account. In Q v E Co, it was the respondent sons' case that they joined and worked in the new family business relying on the expectation induced by the appellant (Q) that he would make certain farms available to the new family business, hold them for his sons during his lifetime, and leave them or the proceeds of their sale to the sons on his death (referred to as the "holding/inheritance expectation"). The appellant identified seven benefits said to have accrued to the fourth respondent (B) and fifth respondent (C) by reason of their reliance on the holding/inheritance expectation, and estimated their total value at approximately $1.8 million for B and $1.55 million for C. The appellant submitted that the primary judge could not be satisfied, having regard to their enjoyment of the "countervailing benefits", that B and C would suffer substantial detriment by Q's departure from that expectation. However, the Court of Appeal held that in relation to the first, second and fifth of the "benefits", in so far as they included the value of an unrealised ongoing "opportunity" presented by B and C's involvement in the family business, that should not be taken into account in any exercise directed to determining whether the sons suffered detriment by their reliance on the holding/inheritance expectation. Those unrealised opportunities simply did not form part of the sons' changes of position on the basis of that expectation: Q v E Co at [139]-[140].

[59]

Plaintiff's evidence - the initial promises and instances of their repetition

The first occasion of the initial promises occurred in December 1969.
Following the receipt of an offer to study medicine at the University of Sydney, the plaintiff had a discussion with his parents during which the deceased said to him (CB 84[29]): "We don't want you going to Sydney. We don't know anybody down there. What happens if you get sick? Your place is here on the farm. Half of it will be yours one day. You should go to university in Newcastle instead. You'll be much closer and be able to stay at home to help on the farm."
The plaintiff gave the following evidence (which I accept) at CB 84-85[30]: Following the conversation with my Mother, I decided to decline the offer to study medicine in Sydney. If the promise had not been made by my Mother I would have accepted the offer. In making that decision I relied upon my Mother's promise to me that I would receive one half of the farm. I believed and expected that one half of the farm consisted of the land, livestock, motor vehicles, machinery, plant and equipment owned by my parents.
Medicine was not offered at the University of Newcastle in 1970 and, as a consequence of the plaintiff's decision, he declined the opportunity to study medicine and studied science at the University of Newcastle instead: CB 84-85[30]-[31].
In December 1977, there were four conversations which, together with the 1969 conversation set out above, were said to be part of the initial promises. Conveniently, Mr Birtles extracted the essence of the initial promises as follows at PCS [155]-[158] (which I have re-numbered as 1-4): [1.] On either the first or the second Sunday in December 1977, the Plaintiff and his father discussed the offer which had been [made] to the Plaintiff of a postdoctoral fellowship at Florida State University. During this conversation, Russell's father said to him "You have worked so hard to help build up the farm. Half of it is going to be yours. We want you to stay. We need you here. Your future is on the farm." [CB 88-89[46]]. [2.] Also in December 1977, a few days after the conversation with his father, the Plaintiff had another conversation with his parents, during which his mother said to him "We've worked so hard to build up the farm and half of it is to be yours." During this conversation the Plaintiff's father said to him "Your mother is right." [CB 89[47]]. [3.] On either the second or third Sunday in December 1977, the Plaintiff's father said to him "Your mother and I want to buy more land when it comes on the market and turn this place into a really top dairy. It could become the top farm in the district and half of it will be yours." [CB 89[48]]. [4.] In a further conversation between the Plaintiff and his father in mid to late December 1977, the Plaintiff's father said to him "You have worked so hard to help build up the farm. Half of it is going to be yours. This is your future." [CB 89-90[49]].
Mr Birtles submitted that the initial promises had also been repeated on a number of occasions after December 1977, and extracted what he submitted was the plaintiff's key evidence regarding the repetition of the initial promises at PCS [159]-[169] (which I have re-numbered as 1-11): [1.] In late 1978 or early 1979, the Plaintiff had a conversation with his father about his parents purchasing [lot (a)], during which his father said to him words to the effect of "If we purchase Dingadee Dairy there will be two dairies - one for you and one for Wayne." [CB 92[63]]. [2.] On 26 April 1980, the Plaintiff's mother said to him "We want you to build your home and life on the farm. You know that half of it will be yours one day." [CB 94[76]]. [3.] In the Christmas period in 1980, the Plaintiff's mother said to him "Your home is on the farm. You can do your Apace work from here. You know that one half of the farm will be yours one day." [CB 95[86]]. [4.] In late April or early May 1981, a few days after Stuart's birth, the Plaintiff's mother said to the Plaintiff "Now listen, that boy needs to be brought up on the farm. He will inherit your half one day." [CB 96[90]]. [5.] In the Easter Period in 1986, the Plaintiff's father said to him "Your home is here on the farm and half of this will be yours." [CB 97[97]]. [6.] In early 1987, the Plaintiff's father said to him "Half of the farm will be yours one day and for it to be practical we need to continue to buy adjoining land." [CB 97[100]]. [7.] In early 1990, the Plaintiff's father said to him "You and Wayne will inherit half each and we need to make sure this place is big enough so that you can each run your own separate farms." During this conversation, the Plaintiff's mother said to him "That's right. Each place needs to be big enough so that you can each make a go of it separately." [CB 100[122]]. [8.] In the early 1990's, whilst the Plaintiff and his son, Stuart, were working with the Plaintiff's father spraying woody weeds on [lot (d)], the Plaintiff's father said to the Plaintiff and Stuart "Keep going. What we are doing is worthwhile. This will all be yours one day." [CB 101[125]]. [9.] In around 1996, the Plaintiff's father said to him "Russ, you, Stuart, Andrew and Angela have done a wonderful job here. It will be yours one day." [CB 102[131]]. [10.] In late 2001, the Plaintiff's father said to him "I want you and the boys to take on the dairy on Dingadee. I can't do it anymore and it will be yours one day." [CB 106[155]]. [11.] In mid-February 2005, the Plaintiff's mother said to him "Your father and I have always promised you that half of the farm will be yours and I will keep that promise." [CB 108[169]].
As can be seen from the above, the plaintiff's evidence, which I accept at least as to the gist or essence of the promises and the occasions, is that the initial promises were repeated in various forms on a number of occasions.

[63]

Andrew

Andrew deposed to a conversation with Jim when he was about 15 years old (i.e. at some point in about November 2000-November 2001), in which they were stopped at the shed below Dingadee Cottage in lot (h) and Jim stated "[y]ou know I want your father [to] have this paddock one day": CB 153[16].
In late 2005, approximately eight months after Jim died, Andrew deposed to a conversation with the deceased in her living room to the following effect (CB 154[21]): During the conversation I said: "What do you want to see happen with things in the future?" Mama replied: "Pappa and I had to work very hard to get everything we have. I am a very fair person and when I am gone everything will be divided evenly between your father and Wayne. I will not have this family torn apart with arguments about this. I just hope you boys can also make a future here too and you will appreciate everything we have done."
Andrew was tested at some length regarding this conversation. It was suggested to him that, for a number of reasons, he might not remember the conversation very clearly and that it was possible that he might have reconstructed the conversation. He disputed that suggestion, indicating that he recalled the conversation very clearly: T 217. I am satisfied the conversation occurred substantially as deposed to by Andrew.
From the time that the deceased commenced leasing out the leased lots, Andrew confirmed that, when he worked on the farm each weekend, the work he performed included maintaining the leased areas with the plaintiff and Stuart: CB 154[22]. I accept his evidence.
In or about 2011, Andrew visited the deceased at her home and had a conversation with her in the garden (CB 154[27]) in words to the following effect (CB 155[28]): 28. I said to Mama: "Sam [Andrew's wife] and I are looking to buy a house and set-up a garden. Do you reckon I could I have some cuttings from your roses at some stage?" She said: "Well, how long do you think you will live up there? Do you think you will be able to move back?" I said: "I don't know but I would love to build a house down here eventually. What do you think of that spot up there above the house?" [I pointed to a location on the Kennilworth property]. Mama said: "Yes well, you'd have to ask Wayne, this side of the road is his. But the other side of the road eventually will be your father's. Hopefully your father will let you build something over there if you can. That would be nice." I understood that Mama was referring to Stroud Hill Road, the main road from Dungog to Stroud. When she said "the other side of the road" I understood Mama to be referring to the Dingadee property.
Andrew was challenged regarding his recollection of this conversation. However, I am comfortably satisfied that the conversation was essentially as Andrew deposed to.
In context, having regard to the location of the conversation, I infer that the deceased was intimating that the defendant would inherit the property south of Stroud Hill Road, being the "Kennilworth lots", and the plaintiff would inherit the property north of Stroud Hill Road, being what I have described as the "Dingadee lots". That inference accords with Andrew's understanding of his discussion with the deceased: CB 155[28].

[64]

Stuart

In about May 2005, about three months after Jim died, Stuart visited the deceased at her home one weekend and had a cup of tea with her at the kitchen table, during which he is said to have had a conversation with her to the following effect (CB 184[22]): "What happens now in relation to the farm in the future now that Pappa is gone?" Mama said to me: "Your Father and Wayne have always helped us keep things running. We would not have been able to do it without them. It was always your grandfather's wish that his two boys would get 50/50 each and I plan to honour this in his memory."
Ms Fendekian tested Stuart in relation to his recollection of this conversation with the deceased: T 235-237. I accept his evidence.
From the time that the deceased leased property in what Stuart described as the "Dingadee paddocks" (i.e. from about 2006), he indicated that his work on the farm focused on assisting his father to maintain the leased paddocks, which mainly included fixing fences and weed control: CB 185[24]. I note that, in 2008, Stuart had returned to live with his parents as his mother had been diagnosed with cancer and he wanted to be with her. He visited the deceased approximately two to three times per week: CB 185[25].
In about 2008, Stuart had conversations with the deceased which he deposed to in the following terms (CB 185[27]-[28]): 27. In or about 2008 during a visit to Mama she said to me: "I understand you have been doing work on your father's part of the property. I am proud of all the work you are doing at Dingadee." 28. On another occasion during a visit to Mama at her home in 2008 she said to me: "I am pleased your father is doing a lot of work on the leased paddocks. Because of what he is doing I am leaving the leased area to him."
Stuart denied in cross-examination that the deceased's statement regarding the work he had been doing on "your father's part of the property" was a reference to work on Amberley Park (i.e. lot (c)). He indicated that she was referring to work that the plaintiff, Andrew and he had been doing "all through Dingadee". The evidence was as follows (T 237.45-238.25): Q. In paragraph 27, where you refer to your grandmother's statement about all the work that's been done on your father's part of the property, that could easily have been a reference to Amberley Park, couldn't it? A. No. Q. Did your grandmother say anything more? A. My recollection from that conversation was she was referring to work that both my father and I and my brother had been doing like all through Dingadee and it stuck in my mind because it was the first time that she'd sort of mentioned specific areas of what she planned or saying, "Your father's part of the property." Q. That she was saying what, sorry? A. That it was the first time she mentioned a specific area as "Your father's part of the property." It was the first time I'd heard that term from her. Q. Did you ask her to clarify what she meant? A. I did in - it was either one of those two conversations I said to her something along the lines of, "Is that approximately half your estate" and she said, "I think so yes." Q. In response to your grandmother's comment about having done work on your father's part of the property, you responded with, "Is that half the estate"? A. No. In the - I think it was the second. I think it was that second conversation, where she said, "Because of what he's doing, I'm leaving the leased areas to him." Q. You're now telling the Court that in answer to that you said what exactly? A. I said, "Is that approximately half of your estate", referring back to the previous conversation I'd had with her a couple of years prior and she said, "Yes, I think so."
Stuart denied that he was making the evidence up: T 238. I unreservedly accept his evidence.
Ms Fendekian also pressed Stuart in relation to the second conversation he deposed to having with the deceased in 2008 (CB 185[28]): T 239. I accept his evidence.
Stuart indicated that in 2010, whilst visiting the farm, the plaintiff, the deceased and he drove around the "Dingadee property" and stopped on an area he identified as being lot (h). He indicated that the plaintiff showed the deceased the work they had completed (including slashing weeds, removing old fences and picking up rocks) and stated that the deceased said to him (CB 186[32]): "Your father is doing a great job looking after his part".
Ms Fendekian tested Stuart in relation to this evidence: T 239-245. He explained, by reference to MFI-2, the events of the journey and confirmed that the site was lot (h). I am comfortably satisfied that Stuart had a reliable recollection and I accept his evidence.
In approximately 2014, Stuart indicated that the deceased was less mobile and did not travel around the farm. Nonetheless, during his visits to the deceased, she asked him about the leased areas. He deposed to the following conversation (CB 186[34]): … She said: "How are the improvements going on the leased area?'' I said: "We have been clearing it up. It's looking great. Mama said: "I am proud of your father's efforts to maintain these leased areas. I can't pay your father for this work but Dingadee will be his once I am gone."
Ms Fendekian tested Stuart in relation to the conversation: T 245-248. He disputed the suggestion that he liked to ensure that he always communicated to the deceased what works he was doing on the leased areas, instead indicating that the deceased would ask: T 246. Whilst Ms Fendekian put to Stuart that the conversation did not happen in the terms he deposed to, he rejected that as incorrect: T 248. I accept his evidence.
In 2018, Stuart indicated that he and his father attended to removing cattle carcasses from lot (h). He stated that he had a conversation with the deceased at her home about this work, and she was glad that he and his father had "sorted out those carcasses over at Dingadee": CB 186[37].
In 2020, Stuart had a conversation with the deceased whilst visiting her at her home, in which she said (CB 187[38]): "Your father got some poison recently to use on Dingadee. How is it going? I am happy he is doing that work; it will be good when it is his."
Stuart was also tested in relation to this evidence: T 248-250. He clarified that the area he and his father had been spraying was the far right-hand side (or the "top end") of lot (h): T 249. I accept his evidence.
Finally, Stuart indicated that, later in 2020, he was spraying weeds on lot (h) with his father and Andrew and, when he next saw the deceased, he informed her of the work they were doing, to which she said (CB 187[39]): "Yes, I know where that is. It's up on the hill [past] Dingadee cottage. I would like to be buried up there one day as it's a great viewpoint overlooking the farm. It's comforting to know that your father will take good care of that area once I am gone as it will belong to him".
Again, Ms Fendekian tested Stuart in cross-examination regarding this conversation: T 250-252. He disputed that there was ambiguity in relation to the area that would belong to his father, and indicated that there was a burial site on a ridge at the top of lot (h). He stated "[t]here's an existing burial site up there, so it was quite clear where it was" (T 251.35-42), and adhered to that evidence on testing: T 251.44-252.14. I accept his evidence.

[65]

Ms Hewitt

Leaving aside the niceties of the expression "estate" as distinct from the "farm", Ms Hewitt deposed to a conversation with the deceased in the presence of Ms Hewitt's mother, not long after Jim died, in the deceased's kitchen as follows (CB 147-148[12]-[13]): 12. My mother said: "My estate shall be split equally between my children." Aunty Gloria said: "Mine will be the same- 50/50. " 13. I recall the substance of the conversation and the words spoken as my mother's testamentary intention was relevant to me and not something I recall her talking about prior to this conversation.
Ms Hewitt accepted the conversation occurred in 2005: T 188.30-31. She was asked to assume that the deceased had made a Will in 2006 that was not a "50/50 split" between the plaintiff and the defendant.
On the basis of that assumption, Ms Hewitt's cross-examination included the following (T 189.1-16): Q. So on the basis of that assumption, or with that assumption in mind, do you think it's possible that your recollection of the conversation that you heard back in 2005 between your mother and Gloria might be mistaken? A. No, I, I remember the conversation. But as to what Aunty Gloria may have had in her will after that time, I mean I've never seen her will. Any of her wills. Q. The part of the conversation that would have been most interesting to you, I imagine, would be what your mother had said about her estate? A. Yes. Q. Can you be sure that you remember with any clarity what Gloria said in response? A. Yeah. May I just say, the conversation arose because they were recollecting what their father had done to them, which back in the day their brother received, I believe, the stock and substantial other things, and the girls received very little. And that was how the conversation came about.
Ms Hewitt was questioned whether the deceased was simply being agreeable with her mother, to which she accepted that that was a possibility and agreed that the deceased did not go into any more details about her intentions. However, she ultimately held to her evidence (T 190.11-13): Q. Well I want to put it to you that your recollection of the conversation in 2005 as set out in paragraph 12 is not correct. What do you say about that? A. Well I know what was said, and I believe it is correct.
I accept Ms Hewitt's evidence that the conversation occurred as she deposed to.

[69]

The nature of the alleged statements is contrary to the contents of the deceased's earlier 2006 Will and the last Will

If, as I accept, the deceased made the subsequent promises, it begs the question as to why the deceased only gifted two specific lots to the plaintiff in circumstances where she had made promises of more extensive gifting leading up to the time of making the last Will.
The question becomes more acute in circumstances in which, having made the last Will as she did by gifting the plaintiff only two specific lots, the deceased (on the evidence of the plaintiff, Stuart and Andrew) continued to make statements to the effect of promising the plaintiff the leased lots, and gave encouragement to the plaintiff to maintain those lots.
The plaintiff accepted that the deceased was, in his opinion, an honest person: T 34.7-9.
Why would the deceased, an apparently honest person, make statements of testamentary intention to the plaintiff, particularly after making her last Will, which were contrary to the terms of the last Will (as I have construed it)?
There is some evidence that reveals the deceased's immediate thinking behind the testamentary disposition of her real property in the last Will.
In his second affidavit sworn on 24 August 2023 (approximately three weeks before the commencement of the hearing), Mr Doyle, upon reflecting on his recollection of events, indicated that he was prompted on re-reading the last Will (and in particular cl 9) to recall part of the conversation he had with the deceased while taking instructions: CB 307[6]. His evidence included the following (CB 307-308[8]-[10]): 8. In this particular case it appeared to me upon taking instructions from Gloria in July 2010 that the bequest to Kevin Wayne Reeves ("Wayne") exceeded in value the bequest to Russell Reeves ("Russell") and I said to Gloria words to the effect: "It appears that there is a greater proportion of your estate being bequeathed to Wayne. Do you have a reason for this because Russell may receive advice, if he felt he was not provided for adequately in the Will, to make a claim against your estate". 9. Gloria said to me words to the effect: "Russell has a house, property and a good job whereas Wayne has nothing. He just works on the farm." 10. I do not recall having a conversation with Gloria regarding property that had been gifted or sold to Russell during the life of her late husband or Gloria.
Mr Doyle, in the context of being cross-examined about whether he had taken steps to confirm the deceased's intention was to limit the gift of "Dingadee" to lot (a), responded by confirming that he had read out cl 7.3(a) to the deceased and raised with her the fact that there was an imbalance as to the differences in the areas concerned: T 363.25-44.
He was then cross-examined about the above conversation deposed to in his 24 August 2023 affidavit and the wording of cll 9.1 and 9.2.
Specifically, Mr Doyle gave the following evidence (T 365.22-31): Q. But you're not able to tell the Court or give the Court any evidence of express instructions in relation that Mrs Reeves gave you, in relation to the matters in clause 9.2? A. Well, yes, she said that she wanted the will, as it was, with Wayne to get what he got, which is the balance of the property, apart from those two lots, and, and the, and the two-thirds share of the residue. They were my instructions. Having, having told her of the possibility of Russell potentially making a claim, she said, "No, Russell's got property. Wayne hasn't got any property, he's just a farm worker, and that's why I'm doing it", words to the effect.
His evidence in cross-examination relatively accords with his affidavit evidence.
I accept Mr Doyle's evidence regarding this issue. Whilst he questioned the deceased as to the disproportionality of the gifting of her real property, it is evident that there was no more elaborate testing by him as to whether what the deceased was doing was inappropriate or contrary to any other matters restraining her ability to dispose of her estate as she chose and, in particular, contrary to any alleged promises of inheritance she had made.
Accepting, as I do, that the deceased did make promises to the plaintiff, it is not easy to completely rationalise why the deceased did not give effect to the promises in her last Will. However, that is not an insurmountable obstacle to relief. At least two observations can be made regarding the apparent inconsistency.
First, the nature of claims against the estates of deceased persons is such that the Court will necessarily not have the deceased available to be examined about her motives and, in that sense, the Court has an incomplete picture of the deceased's rationale for acting as she did.
Secondly, in her submissions on rectification, Ms Fendekian submitted that the deceased had a long-held view that the viability of the Kennilworth operation depended upon access to lots north of Stroud Hill Road: DCS [110]-[111(a),(c),(d)]. If it is the case that the deceased held that view, then it might be that the deceased, albeit conscious of promises that she had made to the plaintiff, was also conscious of ensuring that the defendant had sufficient land and access to have a viable farming operation, initially in 2005 (see file note of 8 March 2005: CB 590-591) and relevantly when making her last Will (see file note of 22 October 2010 with the notation "Bennets [sic] for access to Yates": CB 897). In that regard, she might well have considered that the lesser of two evils was to decline to make good the promises to the plaintiff, in order to ensure that the defendant (from her perspective) had enough land and access to the Kennilworth lots. I do not need to form any concluded view regarding that. It simply suffices to indicate that there are potential explanations as to why the deceased acted in the way that she did.

[70]

Finding

Overall, having scrutinised the plaintiff's evidence and the evidence of the other witnesses, and having considered the total evidentiary mosaic, I accept the plaintiff's evidence regarding the deceased's initial promises and subsequent promises of inheritance.
Insofar as the promises had been made by the deceased, and Jim prior to his death, there is evidence, which I accept, that the deceased intended shortly after Jim's death that she would assume responsibility for, and keep, those promises: CB 108[169].
The initial promises, namely, that the plaintiff would in effect receive half the farm, were not ultimately articulated in terms of precision. Thus, none of the initial promises specified particular lots.
What Jim and the deceased, and more particularly the deceased, intended as to the division of "half the farm" when making the initial promises was never made precisely clear in the evidence, other than by reference to "separate farms": CB 100[122]. However, I do not regard that as being fatal to a characterisation of the promises being "clear" or "unambiguous". Nor do I regard it as being fatal to the requirement that the promises be intended to have sufficient seriousness to have binding consequences.
What can be said is that there was a realisation in the plaintiff's parents, as expressed to him from an early stage, that the promises of "half of the farm" were not intended to be some theoretical pledge of inheritance but something of ultimately realistic use to the plaintiff. In the deceased's presence, Jim expressed to the plaintiff, at least in early 1987, that for half of the farm to be of practical use, they needed to continue to buy adjoining land. On this occasion, the deceased discouraged the plaintiff from purchasing elsewhere and indicated that they would find a spot for him on the farm: CB 97[100].
In addition, it is evident that the plaintiff's parents, in the search for further land, expressed to the plaintiff in early 1990 that the accumulation of landholding was important for the viability of farming operations for the plaintiff and the defendant. The plaintiff's evidence, which I accept, is that (CB 100[122]): At a Saturday night family dinner at our place in early 1990 my Father said: "We need to keep our ears and eyes open for more land. You and Wayne will inherent [sic] half each and we need to make sure the place is big enough so that you can each run your own separate farms." My Mother then said: "That's right. Each place needs to be big enough so that you can each make a go of it separately".
Thus, in respect of the initial promises, although a precise division of landholding was never specified, there is sufficient material in the evidentiary mosaic to reject the notion that the deceased and, until his death, Jim would have intended the plaintiff and the defendant to have been effectively joint co-owners of the entirety of the land, forcing them to effectively operate any farming operations and hold land together.
However, clearly enough, the promises appear to have been subjected to the exigencies of farm management decisions made by Jim and the deceased, including: 1. the purchase in 1979, and subsequent closing, of Dingadee Dairy; 2. the closing of the Kennilworth Dairy in about December 2006 and the setting up of a beef cattle operation on Kennilworth; and 3. the leasing of the leased lots from 2007.
The plaintiff did not contend that any of those management decisions were impermissible steps taken by his parents (in the sense of being in conflict with the promises made to him).
In practical terms, what might have been lacking in the initial promises in terms of precision, namely, what constituted "half the farm", was arguably met and solved by a readily quantifiable promise in the form of the "leased areas". An example of this was the conversation that the plaintiff had with the deceased in mid-2012, where he made a complaint that the deceased was spending "all the money" on the Kennilworth side of the road and nothing on his "side", being the area north of Stroud Hill Road. In that conversation, the deceased recognised not merely a physical separation of land but also that the plaintiff and the defendant were to operate separately without interfering with one another, stating (CB 115[201]): "Wayne has big plans for this area over here [Kennilworth]. Please don't interfere with what he wants to do. The leased area will be yours and it's good that you are looking after that area".
Ultimately, I consider that the estoppel requirement of a promise with sufficient clarity and seriousness is met by the deceased's promise that the plaintiff would receive the leased areas or lots.
I am less convinced as to a claim that the relevant promise included half of the livestock, motor vehicles, machinery, plant and equipment owned by Jim and the deceased initially, and then subsequently, by the deceased.
The initial promises did not deign to provide clarity regarding livestock, motor vehicles, machinery, plant and equipment.
Mr Birtles submitted that the concept of a farm including not merely land but also plant and equipment, machinery and livestock derives some support from early conversations in which Jim had said to the plaintiff, in the discussion in which the deceased was present, "[i]f we purchase Dingadee Dairy there will be two dairies - one for you and one for Wayne" (CB 92[63]): T 396.29-39.
Mr Birtles referred to the plaintiff's evidence that his expectation, right up until the date of the deceased's death, continued to be that he would receive one half of the farm including plant and equipment, machinery and livestock, and that the leased lots would form part of his share of the farm. Mr Birtles noted that following the closure of the dairies, the plaintiff continued to use the deceased's machinery to maintain the leased lots. However, there was a point of time at which he was not able to continue to do so, as the keys had been removed from the machinery (by the defendant). Mr Birtles accepted that the plaintiff did not have use of the deceased's machinery after 2012, and acknowledged that the case for the plaintiff to receive a share of those things might not be as strong because of the changed circumstances: T 421.32-40, 421.46-48.
As management decisions were made by the deceased, a promise of the leased lots did not self-evidently extend to those items.
In the end, the plaintiff no longer pursued a claim for the machinery, plant and equipment or livestock as part of the estoppel case: T 425.15-17.
Importantly, the subsequent promises of the deceased to which I have referred and accept were made, were in context references to the whole of the "leased lots" (CB 116[207]), otherwise described as being the "leased areas" (CB 111[184], 115[201]) or leased "land" (CB 115[202], [203]).
In defending the estoppel claim, neither the defendant nor Ms Fendekian sought to make out a case that the subsequent promises related to anything other than the whole of the 10 Dingadee lots, as well as the 4 Kennilworth leased lots (i.e. the 10 Dingadee lots plus lots (k), (l) and (m), and part of lot (o)), as distinct from a subset of those lots.

[71]

Issue 6: Binding effect issue

Ms Fendekian submitted that the plaintiff needs to satisfy the Court that the alleged statements (assuming they are found to have been made) amount to more than a mere statement of present (revocable) intention and are tantamount to a promise: DCS [139]. She submitted that the plaintiff's account of the conversations falls short of establishing anything more than a statement of present revocable intention, citing Young CJ in Eq (as his Honour then was) in Barnes v Alderton [2008] NSWSC 107; (2008) 13 BPR 25,281 at [58]: DCS [143]-[144].
In cases of estoppel by encouragement, particularly where the promise is of inheritance, a factual question arises as to whether the representation or promise is merely a statement of present (revocable) testamentary intention or is instead tantamount to a promise.
In Kramer, Ward P stated (at [133]-[137]) as follows: 133. In Flinn v Flinn (at [75]) Brooking JA said that: Most people, I suppose, know that the maker of a will can revoke it at any time before death. How is a promise to make a will to be understood? Surely it will ordinarily be regarded by the promisee as a promise, not merely to make a will which can be revoked at any time before death, but to make a gift by means of an instrument which will take effect upon the donor's death. In other words, the promise of a gift by will is ordinarily to be understood as meaning just that - an effective gift by will, taking effect on death, not an ineffective, because revoked, disposition. Of course it all depends on the circumstances. ... 134. In Delaforce v Simpson-Cook at [36] Handley JA made reference to the observation by Robert Walker LJ in Gillett v Holt at 227-228: …the inherent revocability of testamentary dispositions (even if well understood by the parties …) is irrelevant to a promise or assurance that 'all this will be yours' … Even when the promise or assurance is in terms linked to the making of a will … the circumstances may make clear that the assurance is more than mere statement of present (revocable) intention, and is tantamount to a promise. 135. In the context of a case premised on estoppel by encouragement, the factual question in this regard is whether the representation or conduct amounted to more than a mere statement of present (revocable) testamentary intention and was instead "tantamount to a promise" (in Estoppel by Conduct and Election at [16-031], the author notes that "[a]lthough testamentary promises are normally revocable, they become irrevocable if they are reasonably understood as being binding"). 136. It has been said that it is not enough "to hope, or even to have a confident expectation, that the person who has given the assurance will eventually do the right thing" (see Cobbe at [65] per Lord Walker, quoted with approval by Meagher JA in DHJPM at [57]). 137. In Barnes v Alderton [2008] NSWSC 107 (Barnes v Alderton) Young CJ in Eq (as his Honour then was) noted at [51] that where one has a situation that the detriment is incurred in circumstances where the person incurring the detriment knows that the other person may change their mind, there is no relevant representation.
Sometimes, evidence on this issue is addressed with evidence on the issue of whether the representor made the representation or promise at all. However, often the factual material which bears upon this question is also relevant to the question of the representor's knowledge of whether (relevantly) the promise is being relied upon.
The context of the initial promises and the subsequent promises satisfy me that the deceased's words and acts would reasonably have conveyed to the plaintiff that her promises were intended to have binding effect. The context for the promises included the plaintiff having to make significant life decisions about career choices and where he would establish his permanent family home, as well as the plaintiff committing significant time and money over many years to the operation of the farms.
As noted above, the meaning and effect of a representation must be determined objectively according to the impact that whatever is said may be expected to have on a reasonable representee in the position and with the known characteristics of the actual representee.
Little evidence was adduced as to particular characteristics of the plaintiff at the time of the initial promises in 1969. His circumstances included the following: (a) he was about 18 years old and, for the prior 11 years (from about 7 years old), he had worked on the farm and helped with the dairy; (b) he was involved in the manual work and Jim took the time to teach him about the farming operations; (c) on weekends he forwent the playing of sport at Jim's request to help on the farm; and (d) he was a bright student who had received an offer to study medicine at the University of Sydney: CB 83[24]-84[29]. It is evident that he was immersed in the life of the farm, intelligent and conscientious, but eager to embark upon a career in medicine.
Other than as indicated above, the evidence did not disclose any emerging traits of the plaintiff in the next seven to eight years until 1977. The known characteristics of the plaintiff noted above endured through his twenties. His circumstances at the time of the promises in 1977 included those mentioned above and the following: (a) he had declined the offer to study medicine (based (he says) on the promise of the deceased that he would receive half the farm: CB 84-85[30]); (b) from March 1970 until September 1977, he was a student at the University of Newcastle, boarding in Mayfield during the week, and returning home to the farm each weekend and for the university holiday periods to assist with the Kennilworth Dairy operations by performing various farming tasks, without remuneration; (c) he had completed his Bachelor of Science degree with honours, been awarded a scholarship for his PhD studies and submitted his PhD thesis which had been accepted without amendment in October 1977; and (d) he had received an offer of a postdoctoral fellowship at Florida State University: CB 85[33]-87[39].
It should not be readily thought that the initial promises made in 1969 and 1977, when the plaintiff was making formative study and career decisions, were mere revocable statements intended to have no enduring consequences.
The detailed evidence of the 1969 and 1977 initial promises makes it clear that the context of the plaintiff forgoing the opportunity to study medicine and forgoing the opportunity of a postdoctoral fellowship were serious events. The deceased was regarded by the plaintiff as an honest person: T 34.7-9. The plaintiff was a hard-working and intelligent young adult.
The simple terms of the plaintiff's conversations with his parents ought not belie the seriousness of the content of their discussions. There is nothing to seriously suggest that the plaintiff's parents were persons given to making statements about their property and testamentary intentions lightly.
The significance of what the plaintiff was being asked to forgo in 1969 and 1977, at the time that the promises were made, speaks to the likelihood and tenor of the promises being real and not illusory, enduring and not fleeting. It would have been cruel (see e.g. Kramer at [166] referencing Robb J's finding at first instance) for Jim and the deceased's statements to have been revocable, unless they were openly expressed to be so. It must have been clear to the plaintiff's parents that his forgoing of the opportunities to study medicine and to take up the postdoctoral fellowship were decisions which would have lasting consequences for him.
The 1977 discussions were not an isolated event. There were about four or five discussions, spanning much of the period of December 1977 and early January 1978, in which the postdoctoral fellowship offer was being considered and wrestled with by the plaintiff. His decision was being informed by strong encouragement and pleas of his parents to stay and make his life on the farm. The conversations were transparently frank.
I recount below the palpable relief of the deceased and Jim when the plaintiff informed them of his decision to stay, which he expressly said was based on the promise of receiving half of the farm one day, enabling him to have some security of his future and allowing him to explore research options locally.
I find that, objectively, the impact of the deceased and Jim's promises would have conveyed to a reasonable representee in the position and with the known characteristics of the plaintiff that they were intended to have binding effect.
It would have been disingenuous for the deceased and Jim to have remained silent on those occasions if they had not intended the promises to be binding, or to have failed to warn the plaintiff that they, or their survivor, could give no undertaking or assurance as to the plaintiff's inheritance of half of the farm.
The fact that the initial promises and the subsequent promises were repeated on various occasions reinforces the likelihood of the promises being intended at the outset, and intended at each repetition, to be binding. The context in which the promises were repeated were situations apt to buttress the binding nature of the promises by reference to the plaintiff establishing his permanent family home on the farm, the work being done by the plaintiff in building up the farms and the efforts of the parents to acquire land to ensure that there would be separate farms to leave respectively to their two children.
The estoppel case was presented holistically and part of the context of the subsequent promises is not merely the making of the promises but the fact that the initial promises had already been acted upon. Much of the context of the subsequent promises involved the plaintiff showing work he had done to the deceased and her encouraging him to continue such work based on the promise of inheritance. That context speaks to and underpins the binding nature of the promises.
The conversation, which I recounted above, in which the plaintiff said to the deceased that she was spending "all the money" on the Kennilworth side of the road and nothing on his "side", being the area north of Stroud Hill Road (CB 115[201]), is relevant not merely to the notion that the deceased envisaged an importance of there being two farms and of the plaintiff and the defendant operating separately without interfering with one another, but also to the seriousness of what was being stated and its binding nature. Specifically, that the deceased wished to reassure the plaintiff that, despite the imbalance in expenditure between the two sides of the farm, he would inherit what was promised.
I find that, objectively, the impact of the deceased's subsequent promises would have conveyed to a reasonable representee in the position and with the known characteristics of the plaintiff that they were intended to have binding effect. The subsequent promises were, I find, not mere statements of present intention of provision but an assurance of provision.
Lastly, on this issue, Ms Fendekian referred to a conversation that the plaintiff had with the defendant after the deceased's death, during which he expressed some concern that the solicitor who prepared the last Will might not even know that he existed: T 34.7-9, 27.6-29; DCS [145]-[146]. That conversation does not support Ms Fendekian's submission that the plaintiff may have believed that he was not mentioned in the last Will. I do not consider that the plaintiff's concern (about whether the solicitor with whom the deceased had made her last Will knew of his existence) negates any suggestion that any of the promises made to him were understood by him to be irrevocable.

[73]

Plaintiff's evidence - reliance upon the initial promises

From approximately 1958 through to March 1970, the plaintiff worked on the farm (then the Kennilworth Dairy) assisting Jim on weekdays before and after schooling, on weekends and during school holidays: CB 83[25]-[26].
As referred to above, the plaintiff declined the offer to study medicine at the University of Sydney in December 1969 and instead pursued a degree in science at the University of Newcastle so that he could be close to the farm: CB 84-85[29]-[31]. Subsequently in early January 1978, he decided to decline the offer of a postdoctoral fellowship at Florida State University for the same reason: CB 87[39]-90[51].
The plaintiff undertook various farming tasks (including milking, slashing, animal husbandry and spraying of weeds) from March 1970 until September 1977, while he was a student at the University of Newcastle: CB 85-86[33].
The plaintiff continued to undertake various farming tasks (including operating farm machinery, slashing, animal husbandry, spraying of weeds and repairs and maintenance of fencing) from September 1977 (when he had completed his PhD) until June 1979, for which he was paid a minimum wage of approximately $300 per week: CB 90[54].
In late 1978 or early 1979, the opportunity to purchase lot (a) arose. The plaintiff offered to contribute about $26,000 to the purchase (which was all he had at the time), for which his father indicated that he would get a percentage of the income generated by the dairy as well as the house on the block which could be rented out: CB 92[61]-[62].
Lot (a) was purchased in March 1979 with the plaintiff contributing all of his savings of $26,000: CB 92[64].
Following the purchase of Dingadee Dairy, some of the work for which the plaintiff says he was unremunerated (which evidence I accept) included the following: 1. he was not paid for the work he did from June 1979 until January 1980, returning to the family farm each weekend and during university holidays: CB 93[70]; and 2. he was similarly not paid for work carried out from January 1980 until June 1987 on average one weekend every two months and further during Christmas, New Year, Easter and school holiday periods: CB 96[92].
When purchased, Dingadee Dairy was an operating share farm with an existing herd of cattle. The plaintiff's parents entered into a share farming agreement with Mr Sullivan and received income from both the dairy and the rented house on the dairy: CB 93[66].
Shortly after the plaintiff's parents took possession of Dingadee Dairy, Jim requested the plaintiff to forgo his share of its profits. The conversation was as follows (CB 93[67]): "It would be a big help if you don't take your share of the profit so we can buy other Lots which are likely to come up. It will help pay off the overdraft so that we are ready to purchase other Lots when they come up." I replied: "Okay. That's fine. I understand".
In early 1986, the plaintiff and Barbara were living at Richmond, and were considering purchasing land in the Hawkesbury Valley or the Blue Mountains area to build a home for their family (which by that stage included both Stuart and Andrew): CB 97[96]. Whilst visiting his parents over the Easter period in 1986, the plaintiff had a conversation with them to the following effect (CB 97[97]): "Barbara and I have been looking for land so we can build a home. We like the Hawkesbury Valley or Blue Mountains. We want the boys to have space growing up like I did". My Father replied: "You don't need to buy land down there. Your home is here on the farm and half of this will be yours. You can build a house here".
The plaintiff indicates that he decided not to proceed with purchasing land in those areas because of the promise made to him by his parents that he would inherit one half of the family farm: CB 97[98].
Then, in early 1987 when the plaintiff and Barbara were considering purchasing property in the Fosterton area, the plaintiff had a similar conversation with his parents and decided not to proceed with his proposed purchase based on the promise of inheritance: CB 97[100]-98[101].
Subsequently in around September 1987, the opportunity came up for Jim, the deceased and the plaintiff to purchase a sizeable piece of adjoining property north of Stroud Hill Road, being Lot X in DP XXXXX. The land was purchased and, in the period from December 1987 to December 1988, the plaintiff spent approximately 400 hours improving the Lot by removing rocks, fallen trees and weeds, ploughing the land and planting ryegrass and clover: CB 98[106]-[109].
In September 1988, Lot X was subdivided into Lots XX and XX, being respectively lots (b) and (c), with his parents retaining lot (b) and the plaintiff and Barbara taking lot (c). They built a house on lot (c), which they named "Amberley Park": CB 99[113].
From 1987 to 1995, the plaintiff's parents paid to him and Barbara a total amount of $60,050 for the use of lot (c) as part of the Dingadee Dairy operation, which he asserted was a reduced rent for use of the lot, and from 1995 his parents paid him the sum of $200.00 per annum, which he described as a "peppercorn rent", for the use of the lot (c) for the Kennilworth Dairy: CB 100[119], 126[5], 102[133]. The plaintiff asserted that he agreed to the reduced rent because of the initial promises made by his parents.
Between June 1989 and 2006, the plaintiff assisted with the Kennilworth and Dingadee dairy operations by, without remuneration, spending four to five hours per week performing tasks, including: (a) filling in for farm employees when they took leave; (b) operating and maintaining farm machinery; (c) slashing and pasture improvement; (d) spraying of woody weeds (blackberry, lantana, etc.); (e) animal husbandry; (f) repairs and maintenance of fencing; (g) negotiating financial compensation for power line easements; (h) moving cattle from the dry run area closer in to the dairy; and (i) milking cows and working in the dairy: CB 100[123], 90[54]. From about 1993, Stuart and Andrew assisted with those tasks: CB 100[124].
In the period from March 1993 through to December 1998, the plaintiff set out in his affidavit considerable detail of work that he performed on a number of the Dingadee lots, including: 1. in the period from March 1993 to December 1994, he spent approximately 100 hours improving lot (h) by removing broken fences, rocks and fallen trees, erecting new fences and slashing: CB 101[128]; 2. in the period from December 1994 to December 1995, he spent approximately 150 hours with Stuart and Andrew clearing rocks from an area that had been deep-ripped by a bulldozer, and breaking the soil with a rotary hoe to enable the growing of vegetables (which he shared with his parents): CB 102[131]; and 3. in the period from January 1996 to December 1998, he spent approximately 400 hours improving lots (a), (d), (e) and (f) by removing blackberry, lantana and privet, slashing, establishing creek crossings and removing derelict buildings: CB 102[134].
After the purchase of lots (g) - (i) they were incorporated into Dingadee Dairy, and the internal fences were adjusted. The half of the area closest in location to the dairying bails on Dingadee was used as pasture paddock for the lactating cows, and the other half was used to graze the dry cows: CB 101[127].
Between approximately November 1995 and June 1999, the plaintiff recounts conversations with Jim in which his father requested him to undertake certain tasks in respect of lots (d) and (h). The plaintiff (often with his son Andrew) completed that work in accordance with his father's requests: CB 103[138]-105[147].
From 1999, the plaintiff (with his sons) increased his work on the farm as his father suffered pain and had difficulty with movement in his knee. This work included assisting with manual tasks such as milking cows, feeding cows, rearing young calves and tending to sick cattle, amounting to approximately 10 hours of additional assistance per week: CB 103[136].
In late 2001, following a dinner discussion with his parents in which the initial promises were repeated and Jim expressed his wish for the plaintiff and his sons to take over the Dingadee Dairy, the plaintiff subsequently obtained and showed his parents a brochure on a tractor (in order to start the operation) and says that his father did not raise the issue again: CB 106[155]-[156]. However, in 2002, Jim and the deceased closed the Dingadee Dairy: CB 106[157].
I found this a somewhat curious aspect of the evidence. It seemed odd that Jim would have raised with the plaintiff the possibility of him taking on the dairy but, when the plaintiff took some steps to do just that, Jim closed the dairy. I asked the plaintiff about this. He gave an explanation which, to my mind, made some sense of Jim's decision. He indicated that the dairy industry was in a state of restructure at that time and there was uncertainty around deregulation, and accordingly it was no longer profitable to continue to operate the Dingadee Dairy. The plaintiff went on to indicate that, in a practical operational sense, the land that had been used for the Dingadee Dairy operation was then used in conjunction with the Kennilworth land to operate the Kennilworth Dairy: T 115.
From January 2002 to December 2002, the plaintiff spent approximately 200 hours improving lots (a), (d), (e) and (f) by removing broken fences, slashing, removing blackberry, lantana and privet and maintaining creek crossings: CB 105[152].
From August 2002 to February 2003, the plaintiff spent approximately 300 hours improving lot (j) by removing privet, blackberry, lantana and black wattle trees, removing broken barbed wire fences, establishing creek crossings, chisel ploughing the land and planting ryegrass and clover: CB 105[150].
In mid-February 2005, following Jim's sudden death, the plaintiff had morning tea with the deceased and they discussed the requirements of the day-to-day farming operations, particularly the twice daily milking operation and how they would be managed going forward. The conversation was to the following effect (CB 108-109[169]): "I am very grateful for everything you are doing Russ. I know you will have to get back to your Apace work, but it would be good if you could keep doing the milking with [Mr Shepherd] and help him with the other jobs for as long as you can." My Mother then said: "Your father and I have always promised you that half of the farm will be yours and I will keep that promise." I replied: "Mum, I'll continue to help full time for as long as I can."
From the time of his father's death until May 2005, the plaintiff continued to spend, without remuneration, around 10 hours a day working full-time on the farm, which involved conducting the twice daily milking operation and other associated farm operations with Mr Shepherd. The plaintiff states that he did this believing that he would inherit one half of the family farm: CB 109[170].
Whilst the plaintiff was cross-examined to the effect that he would have assisted his mother in any event following Jim's death, I do not consider that his willingness to assist the deceased can be so easily disentangled from any reliance on the initial promises. The plaintiff's evidence was that he worked with Mr Shepherd during at least that three-month period until May 2005 because he would inherit half the family farm: CB 109[170]. I accept that his motivation for doing so was not exclusively tied to being a dutiful son, nor does the law require that.
Between February 2005 and when the Kennilworth Dairy closed (in about December 2006, as noted above), the plaintiff assisted with dairying operations on Kennilworth on at least 20 occasions at the deceased's request: CB 111-112[186].
From around 2006, the plaintiff commenced maintaining the leased lots. He says that the deceased did not maintain those areas nor arrange for others to maintain them. With the exception of a set of portable prefabricated steel cattle yards, she also did not make any capital improvements to the leased lots: CB 111[181].
The plaintiff gave detailed evidence of work he conducted from around 2006 when he started to maintain the leased lots: CB 111[181]-[184].
The plaintiff indicated in evidence, which was limited to his perception, that the deceased's representations regarding the leased lots represented a practical division of the deceased's estate into two areas, each being large enough to have an economically viable farm for each of himself and the defendant: CB 111[185].
In the period from June 2006 to May 2007, the plaintiff arranged for fencing contractors to complete subdivision fencing to enable the improved management of lots (j), (m) and (o), which are part of the leased lots. The fencing costs of $14,392 were paid by Apace, on his behalf: CB 111[182], 640, 739-742. However, those costs were treated as a loan by Apace to the plaintiff and the sum was repaid by deductions from his salary over a period of years: CB 111[182]; T 162.18-163.14.

[74]

Plaintiff's evidence - reliance upon the subsequent promises

From time to time, the plaintiff attended upon his mother and drove her to the leased lots, where he showed her the maintenance work he was doing.
For example, in or around December 2008, the plaintiff drove the deceased around the leased lots and showed her the maintenance work he was doing, which work included clearing blackberry, lantana, tobacco bush and privet from along the banks of Cherry Tree Creek in lot (j): CB 111[184].
Following Jim's death, the plaintiff continued to carry out maintenance work, which included slashing, removing animal carcasses and cleaning up after storm damage, in respect of lots (j) and (b) and part of the Kennilworth lots, being lots (k) and (o): CB 114[195]. This work was completed both by himself and on occasion with his sons and a casual labourer.
In September and October 2017, the plaintiff arranged for earthmoving contractors to remove debris and clean up the site on lot (a) where a large service shed had been destroyed in a windstorm, and for electrical contractors to reconnect power: CB 114[196]-[197].
In April 2020 the plaintiff and his sons, together with a casual labourer, attended to the spraying and removal of woody weeds (including blackberry, lantana, privet and tobacco bush) on lots (h), (j) and (k): CB 116[208].
In the period from 2012 to 2021, the plaintiff paid casual labourers an average of $500 per year to assist him with the maintenance of the leased lots: CB 114[198]. In the period from 2006 to 2021, the plaintiff also spent at least 200 hours a year maintaining the leased lots, which work included: slashing; woody weed control; rock removal; repairs, removal and maintenance of fencing; removal of animal carcasses; establishment and maintenance of creek crossings; and cleaning up after storms and floods: CB 114-115[199].
From 2006 until 2012, the plaintiff used the deceased's machinery to maintain the leased lots on all but a few occasions. Since 2012, he has used machinery owned by Apace and engaged casual labourers to maintain the leased lots, as well as his own land: CB 115[200].
The plaintiff had given evidence that, from 2008, the deceased had maintained and made significant capital improvements to the Kennilworth land area used by her for her cattle raising operation: CB 112[188].
In mid-2012, in a context in which (as noted above) it became apparently difficult for the plaintiff to use the deceased's machinery to carry out the maintenance work, he attended at the deceased's house at Kennilworth and had a discussion with her as follows (CB 115[201]): "You are spending all the money on this side of the road and nothing over my side." I was referring to the Stroud Hill Road (and therefore Kennilworth). My Mother responded to me: "Wayne has big plans for this area over here. Please don't interfere with what he wants to do. The leased area will be yours and it's good that you are looking after that area"
Ms Fendekian cross-examined the plaintiff about this incident, raising the prospect that it might have been potentially a heated moment for him. On one view merely from the plaintiff's affidavit, the incident appeared potentially confrontational. However, my impression of the plaintiff following his being cross-examined regarding this issue (T 131-136) is not untoward. He frankly conceded that he was frustrated at the time but not angry: T 136.45-137.2. He essentially accepted the lack of expenditure "as the reality and got on with it": T 137.7.

[75]

Discussion regarding reliance

Essentially the plaintiff's case for reliance in respect of the initial promises and the subsequent promises focuses upon five categories of reliance and detriment, being: 1. farming tasks in respect of the Kennilworth and Dingadee Dairy operations; 2. forgoing educational opportunities; 3. financial contributions and sacrifices; 4. forgoing other opportunities to purchase land elsewhere; and 5. land maintenance and improvement works.
By and large, the plaintiff's case for reliance in respect of the initial promises and the subsequent promises was supported by his affidavit evidence and that of his children, in particular his sons. Generally I accept both his evidence and their evidence in respect of the works he carried out.
Ms Fendekian submitted that the alleged representations made in 1969 and in late 1977 were made at times at which the farm did not include lots north of Stroud Hill Road: DCS [148(a)-(b)].
To the extent that the farming land was added to from time to time, it is not necessary for all of those assets, or those which are the subject of relief, to have been identified at the time of detrimental reliance. That some assets encompassed by the expectation were acquired after the point of detrimental reliance would, on that view, merely inform the nature and extent of the appropriate relief: see Q v E Co at [80] per Meagher JA (Leeming and Payne JJA agreeing).
There are cases in which courts have accepted that the extent of property identified by assurances or promises referable to inheriting "the farm" is sufficiently certain in a context in which the claimant and the deceased knew that the extent of the farm was liable to fluctuate from time to time. The mutual understanding is that the inheritance would relate to the extent of the farm as it would exist at the time of the deceased's death. In such cases, the ultimate landholding provides identified property with sufficient certainty about the subject matter so as to found a proprietary estoppel: Thorner v Major at [62] per Lord Walker of Gestingthorpe.
I consider that the initial promises made by Jim and the deceased were ambulatory and came to attach to and include farm properties as they were acquired: CB 97[100], 100[122]; see e.g. Q v E Co at [71]-[80].
Viewed holistically, I find that there was continuing detrimental reliance by the plaintiff on and from the acquisition of each of the after-acquired properties: Q v E Co at [86]. The plaintiff does not need to establish "separate estoppels" in relation to the after-acquired properties.
Ms Fendekian submitted that by 26 April 1980, when the plaintiff married Barbara, his key life decisions as to his career (namely, undertaking scientific research in renewable energy technologies) and family (namely, a life together with Barbara) were settled: DCS [149].
Whilst it is true that those decisions might have been settled, I do not consider that that is an effective answer to the plaintiff's estoppel claim: Q v E Co at [84]. At least part of the reason why the plaintiff's career took the course that it did is because he elected not to pursue the study of medicine or undertake the postdoctoral fellowship. These were both decisions made at the request of his parents (including the deceased) and in reliance upon the initial promises.
Ms Fendekian submitted that the plaintiff had not stated in his evidence that he had any aspiration to be medical doctor: DCS [151]. Yet, the plaintiff stated that, if the promise had not been made by the deceased, he would have accepted the offer to study medicine in Sydney: CB 84[30], 121[247]. If what is meant by Ms Fendekian's submission is work only as a practising medical doctor, I do not accept the submission. The study of medicine may have opened a number of opportunities for the plaintiff which were not necessarily limited to work as "a medical doctor". I do not regard the plaintiff's indication that he has a strong interest in medical research (CB 121[247]) as necessarily neutralising the effects of the plaintiff's decision, based on the initial promises, not to study medicine.
Further, the fact that the plaintiff agreed with the proposition that his role at Apace (CB 91[58]) "sounds like interesting and important work" does not, per se, undermine the significance of the career choices that the plaintiff made based on the initial promises: cf DCS [151].
I have referred above to the evidence regarding the plaintiff's forgoing of educational and career opportunities under the heading of issue 6, regarding binding effect, and will not repeat what I said above in that respect.
In testing the plaintiff's evidence, Ms Fendekian posed a "counterfactual case". The counterfactual related to the plaintiff's evidence that, between June 1989 and 2006, the plaintiff assisted with the Kennilworth and Dingadee Dairy operations by spending four to five hours per week performing farming tasks without remuneration: CB 100[123]. The plaintiff, whilst accepting that he provided that assistance at least partly on the basis that it was "what any decent son would do" and was consistent with his "Christian ethic", indicated that he did so on the basis that he would one day inherit half the farm: T 160.18-161.39. He disputed the counterfactual put by Ms Fendekian that, if nothing had been said about future inheritance, he would have assisted the deceased in any event. He further indicated that, if the promises had not been made, he would have been studying medicine and would not have been on the farm: T 161.41-162.16. I accept his evidence in that regard.
I had wondered whether part of the work that was being carried out by the plaintiff on the leased lots was covered by lease or licence provisions which required the lessees or licensees to undertake maintenance work. However, apart from the couple of agreements which I have referred to above, no other lease and/or license agreements were adduced in evidence. In any event, the plaintiff indicated that it did not particularly occur to him whether legal obligations under the leases or licences required the tenants to maintain the land. He was unaware of the terms of the agreements and proceeded on the basis that the maintenance of at least boundary fences was the responsibility of the landowner: T 132.
Mr Birtles submitted that one way of viewing the plaintiff's actions in that respect was that it was evidence of his expectation, in the sense that he was acting as though he were the owner of the property and not having regard to the terms of any leases: T 418.8-15. It seems to me that there is some force in that submission.
In any event, as I have already accepted, the deceased gave the plaintiff encouragement to continue the maintenance work.
From 2006 to 2021, the plaintiff informed the deceased of the work he was carrying out and gave evidence of her positive reaction to it. I have referred to the evidence above: CB 115[202]-[203].
In August 2018, the deceased had a fall at a shopping centre, suffering two broken shoulders which led to surgery at John Hunter Hospital. As a consequence of that, the plaintiff indicates that she became effectively housebound and was no longer able to travel around the farm with the plaintiff in his four-wheel-drive vehicle: T 115[205]-[207].
From that time, the plaintiff took photos of the leased lots with his drone to show his mother and, in the period from August 2018 to 2021, he visited the deceased approximately every six months at her home to show her photos of the leased lots. He indicated that the deceased said to him (CB 116[207]): "You have done a good job Russ. It will be yours".
As referred to above, in April 2020 the plaintiff, his sons and a casual labourer attended to the spraying and removal of woody weeds on three lots within the leased area, being lots (h), (j) and (k). Shortly afterwards he visited the deceased at her home and showed her photographs of the maintenance work, to which she said (CB 116[209]): "I am so proud of the work that you and the boys have done. Your area is looking great Russ".
Whilst conceptually it is possible that some people might do a small degree of slashing, woody weed control and removal rocks and animal carcasses to assist a parent as a "decent thing to do", the plaintiff's evidence (which I accept) is that, in light of the statements the deceased made to him regarding the leased lots, he believed that they would be left to him in her Will (CB 116[210]), and that he would not have continued to invest his money, time and effort in maintaining the leased lots if the deceased had not promised him that those areas would be his: CB 122[252]. This is consistent with the plaintiff's evidence on Ms Fendekian's "counterfactual" case which I have referred to above: T 160.18-161.39. The defendant did not proffer any particular reason why the plaintiff might have done those tasks absent any promise.
Overall, I find that the plaintiff did rely on the promises both by: 1. forgoing educational opportunities, entitlements to profits from the Dingadee Dairy operation and the opportunity to purchase and set up a family home elsewhere; and 2. remaining on the farm and undertaking farming tasks and maintenance/improvement works.

[76]

Issue 8: Knowledge issue

I have referred above to the principles regarding intention to create legal relations and specifically to the question addressed in Kramer of whether, in relation to a claim based on estoppel by encouragement, it is necessary to show that the deceased had actual knowledge of the plaintiff's reliance.
I am satisfied that, from the time that the initial promises were made, it was clear to both Jim and the deceased (in the sense that they actually knew), and later it was clear to the deceased after Jim died, that the plaintiff was acting in reliance on the initial promises.
First, the conversation in December 1969 which I have set out above (CB 84[29]) makes it clear that there was an actual request by the deceased to not take up the offer of studying medicine which was connected to a promise of "half" of the farm if the plaintiff stayed and helped on the farm: "We don't want you going to Sydney. We don't know anybody down there. What happens if you get sick? Your place is here on the farm. Half of it will be yours one day. You should go to university in Newcastle instead. You'll be much closer and be able to stay at home to help on the farm."
It is evident and incontestable that the deceased actually knew that the plaintiff declined the offer, stayed at or close to the farm and attended the University of Newcastle studying science instead.
Secondly, the plaintiff's forgoing of the opportunity to take up the postdoctoral fellowship at Florida State University was similarly in a context in which his parents had counselled the plaintiff against taking up the opportunity so that he could stay on the farm. It could not realistically be thought that his parents did not actually know, or clearly ought not to have known, that the plaintiff forwent a vital career opportunity in reliance upon their request that he stay and help on the farm, underpinned as it was by the promise of inheritance.
Notable parts of the evidence include the following.
The fact that the opportunity for the postdoctoral fellowship was significant to the plaintiff is made clear by his very animated response when told by Professor Walker of the offer: CB 87[39]. Indeed, accepting the different context as between discussions with his parents and discussions with the university professor, it was one of the few instances spanning over 40 years of the plaintiff exhibiting sheer delight at something.
After being informed of the offer by Professor Walker in late October 1977, the plaintiff had morning tea with his parents at the family home. The plaintiff recounts the conversation as follows (CB 87[40]): I said to them: "I have been offered a postdoctoral fellowship at Florida State University in Tallahassee. I am really excited. It is an excellent opportunity for me" My Father responded: "In America? We don't want you going over there." My Mother said: "What happens if you get sick?" My Mother then said: "You will probably meet someone over there and get married over there. You may never come back. What will happen to the farm then?" I replied: "It is an amazing opportunity for me"
In late November 1977, documents relating to the offer came through, including an application for entry to the United States of America, a work permit application and the other necessary documents for the plaintiff to accept the position at Florida State University. The plaintiff considered the potential career path from that position, which would involve progressing in various positions from Postdoctoral Fellow through to Emeritus Professor. Further, he considered the salary, superannuation and other financial benefits associated with each of the positions and was inclined to accept the offer: CB 87-88[41]-[44].
The plaintiff recounts various sets of conversations with his parents in December 1977 regarding the offer, in which they encouraged him not to take it and to stay on the farm instead. The first was with Jim on lot (s) (CB 88-89[46]): Father: "What's happening with that offer from America?" Me: "I've started filling out the paperwork. It's a really good opportunity for me to start a secure research career." Father: "I don't want you going over there. Your mother is right you know, you may never come back. You have worked so hard to help build up the farm. Half of it is going to be yours. We want you to stay. We need you here. Your future is on the farm".
The second was with both of his parents in the family home (CB 89[47]): My Mother said to me: "We've worked so hard to build up the farm and half of it is to be yours. If you go to America you will probably never come back. What will happen to it all then? Please don't go. Can't you do your research from here?" My Father immediately then said: "Your mother is right." I responded: "Mum, research is difficult and very high risk financially. The offer from America is a financially secure opportunity for me."
The third was with Jim whilst they were riding horses (CB 89[48]): My Father said to me: "Have you decided what you are going to do about that offer from America yet?" I responded: "I'm still thinking about it. It's an excellent opportunity and if I don't accept it I'll probably never get another offer like it". My Father responded: "But you have an excellent opportunity here on the farm. Your mother and I want to buy more land when it comes on the market and turn this place into a really top dairy. It could become the top farm in the district and half of it will be yours. If you go over there none of that will happen."
The plaintiff had two further similar conversations with both his parents in the period from mid to late December 1977. On one of those occasions, Jim said to the plaintiff (CB 89-90[49]): "I don't want you going over there. Your mother is right, you may never come back. You have worked so hard to help build up the farm. Half of it is going to be yours. This is your future."
The plaintiff considered his position and decided to decline the offer from Florida State University. The promise made by his parents that he would inherit one half of the farm was the reason, the plaintiff says, he declined the offer: CB 90[50].
Critically, the plaintiff explained to his parents that the reason for his forgoing of the opportunity was based on the promise that he would receive half the farm. The conversation in or around early January 1978, whilst the plaintiff was having morning tea with his parents in the family home (the gist of which I accept), was as follows (CB 90[51]): I said to my parents: "I have decided not to go to the U.S. I will consider the research options available to me here in Australia. The fact that I am going to receive one half of the farm one day enables me to have some security of my future and lets me explore research options here". My Father said: "We understand. We are just so relieved. This is good news." My Mother immediately then said: "That's wonderful Russ".
I consider the above evidence and conversation shows the plaintiff's parents actually knew, or clearly ought to have known, that the plaintiff forwent a vital career opportunity in reliance upon their promise of him receiving half the farm. The plaintiff's announcement of his decision to his parents was linked to his reliance on the promise. Tellingly, the enthusiastic relief by his parents is palpable. Jim and the deceased's responses reveal their appreciation of the plaintiff's sacrifice and the benefit to them of the plaintiff remaining on the farm.
Even the defendant indicates that his parents lauded the plaintiff's academic excellence. It cannot be seriously doubted that the plaintiff's parents, and in particular, the deceased, would have realised that the forgoing of the opportunities in Sydney and Florida was of some real and significant sacrifice.
Thirdly, the conversations between 1980 and 1987, regarding the plaintiff's opportunities to establish a permanent family home away from the farm, involved his parents repeatedly telling him that he should build his home on the farm as half of it would be his, which he ultimately did as part of a purchase and subdivision with them of what became lots (b) and (c).
Fourthly, the statement made by Jim in the early 1990s that I have referenced above (CB 101[125]) and was the subject of detailed cross-examination, in which Jim said to the plaintiff and Stuart "Keep going. What we are doing is worthwhile. This will all be yours one day", evidences that Jim actually knew, or clearly ought to have known, that the plaintiff was relying on the promises.
Fifthly, the conversation in mid-February 2005 between the plaintiff and the deceased, in which they discussed the requirements of the day-to-day farming operations (particularly the twice daily milking operation and how they would be managed going forward), clearly shows that the deceased actually knew, or ought to have known, that the plaintiff was carrying out farm work in a context in which he would otherwise be doing Apace work. The deceased herself then links that knowledge to the promises of inheritance (CB 108-109[169]) as follows: "I am very grateful for everything you are doing Russ. I know you will have to get back to your Apace work, but it would be good if you could keep doing the milking with [Mr Shepherd] and help him with the other jobs for as long as you can." … "Your father and I have always promised you that half of the farm will be yours and I will keep that promise."
Sixthly, in relation to the subsequent promises, I consider that it is clear that the deceased actually knew that the plaintiff was relying upon the promises in respect of the maintenance work that was being carried out. I have set out the evidence regarding this above, including the following (CB 115[201]): "The leased area will be yours and it's good that you are looking after that area."
Even if I am wrong in relation to the actual knowledge of the deceased, the above matters, in my view, constitute sufficient evidence to satisfy the requirements of unconscionability and such, if any, constructive knowledge that may be required to give rise to an estoppel in cases of a claim based on encouragement.
Ms Fendekian submitted that the plaintiff cannot demonstrate reliance having regard to the evidence as to the plaintiff's apparent apathy to a career as a farmer: DCS [140].
Specifically, Ms Fendekian submitted that there is scant evidence of the plaintiff responding to the deceased in a way that would be indicative of reliance on any (alleged) statements: DCS [147]. Indeed, the plaintiff's apparent apathy to a career as a farmer was said by Ms Fendekian to negate any suggestion that the deceased knew or intended that he would rely on any of the alleged promises, noting it would have been clear to the deceased that the plaintiff had no aspiration to be a farmer: DCS [140].
The passages relied upon, with some additional context, were as follows (T 77.31-33, 99.36-100.26): Q. You'd never told your mother by that point that your plan was to, that you were considering becoming a farmer? A. Well I had never told [her] that I would not. … Q. But why would your father have said, "We need to make sure the place is big enough so that you can each run your own separate farms", why would he have said that do you think? A. Again, it's, it made sense. Q. What did you say? A. I don't recall what I said. Q. You don't recall what you said? A. No. Q. Right. Because it was a long time ago? A. Not because it was a long time ago. It was not something that required me to, I didn't regard it as something that required me to make a response. It was, I regarded it as a statement of fact by him. Q. Because your mother then says, apparently, "That's right. Each place needs to be big enough so that you can each make a go of it separately"? A. Yes. Q. So what did you say in response to this? A. I didn't respond. Q. You didn't respond? A. No. Q. You didn't say anything? You didn't agree? A. No. Q. You didn't disagree? A. I mean I didn't agree, didn't disagree, no. Q. You just sat there? A. I would have probably - again, I don't recall what I did - but I know I didn't make a response. I didn't regard it as necessary to make a response. It was them stating what they stated. It was what they wanted to do. Q. But you didn't express a view about wanting to run your own separate farm? A. That, that obviously was a desirable outcome, but I didn't see the need to make a response to those statements.
I do not regard the above passages as demonstrating, in any conclusive or decisive way, the apparent apathy on the part of the plaintiff towards being a farmer, nor demonstrating that the deceased knew or intended that the plaintiff had no aspiration to be a farmer.

[77]

Issue 9: Detriment issue

In challenging the plaintiff's case for detriment, Ms Fendekian focused on a number of aspects, including: 1. a general challenge to the plaintiff's evidence; 2. a claim that the plaintiff had prospered in his life from apparent achievements and successes in his career and that those benefits should be taken into account ("countervailing benefits"); and 3. a claim that the relief sought by the plaintiff is disproportionate to his detrimental reliance ("proportionality").
I will address the general challenge to the plaintiff's evidence immediately below. I will deal with the countervailing benefits and proportionality issues under the heading of relief (issue 10).
The plaintiff asserts, and I accept, that he carried out the work I have outlined above under the heading of issue 7, dealing with reliance. The plaintiff's evidence, which I also accept, was that the work was almost completely unremunerated. That constitutes detriment.
In addition to the farming and maintenance work that he completed, which I have outlined under issue 7, there were also one-off tasks that the plaintiff performed, without remuneration, when asked to do so by his parents, including the following (CB 102-103[135]): 1. throughout the 1970s, 1980s and 1990s, he spent a total of approximately 300 hours assisting with the unloading of semi-trailer loads of lucerne hay purchased by his parents from a contract grower at Aberdeen, NSW, as supplemental feed for the dairy cows on Kennilworth Dairy and on Dingadee Dairy; 2. throughout the 1970s, 1980s and 1990s, he spent a total of approximately 100 hours assisting with the unloading of semi-trailer loads of grain (sorghum, barley, etc) purchased by his parents from commercial grain suppliers as supplemental feed for the dairy cows on Kennilworth Dairy and on Dingadee Dairy; 3. throughout the 1970s, 1980s and 1990s, he spent a total of approximately 100 hours assisting earthmoving contractors engaged by his parents to construct gravel walkways and creek crossings for the dairy cows on Kennilworth Dairy and on Dingadee Dairy; 4. throughout the 1970s, 1980s and 1990s, he spent a total of approximately 50 hours assisting to supervise earthmoving contractors engaged by his parents to make new water storage dams, clean existing water storage dams and clear areas of woody weed infestations and fallen timber on Kennilworth and on Dingadee; and 5. in the early 1980s, he spent approximately 20 hours negotiating financial compensation for his parents for power line easements on Kennilworth.
The plaintiff's case for detriment was supported by his affidavit evidence and, in my assessment, not relevantly affected by his cross-examination. I accept his evidence in respect of his forgoing of educational opportunities, profits and alternative family home opportunities. That latter evidence (of the plaintiff not proceeding to establish his family's home elsewhere in reliance on the initial promises) includes: 1. in 1980, deciding not to proceed with purchasing the "Rotherwood" property in central western NSW (CB 95[87]); 2. in early 1986, deciding not to proceed with purchasing land in the Hawkesbury Valley or Blue Mountains (CB 97[98]); and 3. in early 1987, deciding not to proceed with purchasing the "Croom Park" property in the Fosterton area (CB 98[101]).
Rather, the plaintiff and his wife decided to make their permanent family home on the family farm in 1987: CB 98[105].
I further accept the plaintiff's evidence, and that of his children (in particular his sons), in respect of the works he carried out on the farm up until the closure of the dairies and, thereafter, in respect of the maintenance of the leased lots.
Contrary to the defendant's assertion, I accept the plaintiff's evidence that his parents did not reimburse him or Barbara for the $26,000 which he contributed for the purchase of lot (a): CB 271[86], 130[33]. I accept the plaintiff's evidence that, in the period from 1987 to 1995, his parents paid him and Barbara an amount of $60,050 for use of lot (c) as part of the Dingadee Dairy operation, and that from 1987 to 2021 he received a total of $65,450 in rent or payments from his parents for the use of part of that lot: CB 126[5], 130[33].
Insofar as the defendant disputed the extent of the plaintiff's work in respect of the disputed land, I accept the plaintiff's evidence regarding the work he carried out: e.g. CB 131[35]-[36], 133[41], 134[48]-135[51].
An additional aspect of the detriment which the plaintiff claims is that (as I noted in the early part of this judgment) the deceased included in the Baker Family licence the land owned by the plaintiff, being part of lot (c) [Lot XX DP XXXXXX]. Precisely how that worked was not explored in the hearing. However, the plaintiff stated that he did not receive a share of the rent for the leased lots (except to the extent that it formed part of the total $65,450 which his parents paid to him between 1987 and 2021 for use of part of lot (c)). He stated (in evidence limited to be his state of mind) that he was willing to forgo any share of the rent because the deceased promised that he was to receive one half of the family farm: CB 110[178]. He further stated that he relied upon the deceased's statements to him (regarding inheritance of the leased lots) in permitting part of his own lot (c) to be leased by the deceased to third parties from 2006 onwards for reduced rent, and in the time and money spent by him in maintaining the leased lots. He was not directly challenged on the evidence regarding the leasing of lot (c) to third parties. I accept his evidence.
Finally, as I have noted above, the subsequent promises related to the whole of the 10 Dingadee lots, as well as the 4 Kennilworth leased lots (lots (k), (l) and (m), and part of lot (o)), as distinct from a subset of those lots.
The plaintiff's evidence, which I accept, is that he carried out maintenance work and otherwise spent money on the leased lots (CB 111[181], 111[184], 114[198]-115[200], 122[252]) - that is, the whole of them. In addition, the plaintiff gave examples of specific work carried out and money spent on particular lots within the leased lots, including lots (a), (b), (h), (j), (k), (m) and (o): CB 111[182], 114[195], 116[208]-[209].
Ms Fendekian tested the plaintiff in relation to his evidence generally and, in particular, tested to some extent the plaintiff's understanding of where he was located when he had done certain things. However, Ms Fendekian did not challenge the plaintiff to the point of asserting that he had not done at least some work in relation to each of the (14) "leased lots". Further, whilst Ms Fendekian made submissions in relation to proportionality of relief which I refer to (and address) below, the submissions did not (at least expressly) contend that the plaintiff should be denied relief because he had not done some work or spent some money on, or in relation to, one or more of particular leased lots. In any event, even if that challenge or submission had been made, I do not consider that it would be fatal to the plaintiff's case.

[78]

What the plaintiff claims

The plaintiff pleaded that: 1. as a consequence of his reliance, he suffered detriment both in respect of the initial promises and subsequent promises; 2. the deceased failed to act to avoid that detriment by not leaving the plaintiff one half of the family farm in her last Will (in respect of the initial promises) and not leaving the plaintiff the leased lots in her last Will (in respect of the subsequent promises); and 3. it was unconscionable for the deceased to depart from the promises by not making the testamentary provision which reflected them: CB 78M[57]-78N[62].
In respect of the estoppel claim, the principal relief sought by the plaintiff was framed in terms of what had been promised by the deceased under the subsequent promises, namely the leased lots. Specifically, the plaintiff sought: 1. a declaration that the executors of the deceased's estate hold on trust for the plaintiff the "Dingadee lots" and the "Kennilworth leased lots" (Prayer 3); and 2. an order that the "Dingadee Lots" and the "Kennilworth leased lots" be transferred to the plaintiff (Prayer 4).
The subject matter of the initial promises (namely, the claim for "half of the farm") was sought only as alternative relief under the description in Prayer 5 of the further amended statement of claim. This was framed as being "one half of the deceased's land, livestock, motor vehicles, machinery and plant and equipment": CB 78D[5].
In the POS, Mr Birtles submitted that the subsequent promises, if carried out, are a substantial fulfilment of the initial promises: POS [54(n)]. Early on the first day of the hearing, immediately after the luncheon adjournment, I questioned Mr Birtles about the estoppel case to understand whether it was put essentially as an "all or nothing" claim or whether there was an aspect of the relief that was somewhere in between an "all or nothing" claim: T 37.
In describing the case, Mr Birtles indicated that the subsequent promises were a variation of the initial promises but that both sets of promises could sit together. He indicated that the leased lots could be viewed as a component of half of the estate. He accepted that there may be other permutations of a remedy which may not align with the plaintiff's expectations based on the words that were used: T 38.25-39.13. Ms Fendekian's understanding of the matter was consistent with the case as pleaded, noting that the initial promises were described in terms of being "half the farm". That description of property is consistent with the plaintiff's case as pleaded but also as set out in the claims for relief, which describe the farm as not merely being one half of the deceased's land but also one half of the livestock, motor vehicles, machinery, and plant and equipment: CB 78D[5]; T 39.27-41.15. The claims for relief also include an alternative claim for equitable compensation: CB 78D[6].
At least in December 1969 and late 1977, the plaintiff's description of the initial promises made to him was in terms of half of the farm being his (i.e. bequeathed to him): CB 84[29], 89[47]. He indicates that he declined the opportunity of educational prospects to remain on the farm at his parent's request and based on those promises: CB 84[30], 90[50].
In respect of the initial promises, Mr Birtles distinguished between initial statements regarding "half the farm" and statements (albeit he described as to the same effect) that there would be two dairies, one for the plaintiff and one for the defendant: T 414.5-15.
Mr Birtles indicated that, when there were no longer two dairies, the promises (in the form of conversations between the deceased and the plaintiff) became more specific in terms of the leased lots being given to the plaintiff, which he said was a form of "half of the farm": T 403.9-12.
Ultimately I asked whether Mr Birtles proposed to nail his colours to a mast of preference in terms of outcomes: T 420.18-20.
Mr Birtles indicated that there was a cascading series of possible outcomes, the first of which was "one half of the farm" which relevantly included plant and equipment, machinery and livestock: T 420.15-16, 420.37-41, 422.1-3.
In terms of the cascading claims for relief, he indicated that the next claim would be the totality of the leased lots, being the (10) Dingadee lots and the (4) Kennilworth leased lots: T422.24-25.
Mr Birtles accepted that there is far less evidence that the plaintiff worked on the Kennilworth leased lots compared to those on the Dingadee side: T 423.5-7.
I had expressed concern about what, practically, a solution of half the farm might look like: T 397, 422. As I understood him, Mr Birtles gravitated (or perhaps consolidated) to a submission that there needed to be some practical outcome and accepted that an allocation of lots was the only practical solution (leaving aside joint ownership or subdivision which I thought did not sound like very helpful outcomes: T 422.5-10). The only alternative put forward was equitable compensation calculated as the value of what the plaintiff ought to have received: T 422.12-20.
Ultimately, the plaintiff did not pursue a claim for machinery, plant and equipment or livestock as part of the estoppel claim. Rather, Mr Birtles was instructed to put two alternatives to try to minimise the practical issues.
The first option was a claim for the 10 Dingadee lots, as well as the 4 Kennilworth leased lots (first option). Mr Birtles acknowledged that, in that scenario, there would need to be a practical solution worked out involving subdivision in relation to that part of lot (o) which lay to the north of Stroud Hill Road and was part of the leased area. He indicated that enquiries indicated it could be consolidated with the other lots to the north: T 425.17-49.
The second option he put was a claim for all of the leased areas north of Stroud Hill Road being the 10 Dingadee lots, that part of lot (o) which lay to the north of Stroud Hill Road, and lot (m) (second option): T 425.49-426.17.
Ms Fendekian correctly notes that the plaintiff has not advanced any amount said to reflect, in monetary terms, the detriment he claims to have suffered in reliance on the alleged representations, nor has the equitable compensation alternative been quantified by the plaintiff: DCS [185].
It is not clear to me that the plaintiff persisted in a claim for equitable compensation. Even if he did, I was not provided with any reasoned submissions outlining principles and evidence from which to make any assessment for such compensation.
Ms Fendekian also submitted that it is not clear whether the relief sought by the plaintiff is in addition to the gift made to him in cl 8.3 of the last Will (namely, one-third of the balance of the estate): DCS [181].
In light of the plaintiff's non-pursuit of the claim for machinery, plant and equipment or livestock as part of the estoppel claim, which items are gifted under cl 7.3(b) of the last Will to the defendant, the "balance" of the deceased's estate available to be gifted under cl 8.3 consists of the eight items comprising the CBA and Westpac deposits, accounts and MasterCard totalling $1,550,230.80, according to the revised inventory of property.
Conventionally that balance is what is known as the "residue" of the estate.
Where the estate of a deceased person is solvent the deceased person's real and personal estate shall, subject to the provisions of any Act as to charges on property of the deceased and to the provisions, if any, contained in the deceased person's Will, be applicable towards the discharge of the funeral, testamentary, and administrative expenses, debts, and liabilities, payable thereout in the order mentioned in Part 2 of the Third Schedule of the Probate and Administration Act 1898 (NSW) (PAA): s 46C(2) PAA.
Section 46C(2) of the PAA is expressly made subject to the provisions of any Act as to charges on property of the deceased. Relevantly, in relation to mortgages on the deceased's property, the effect of s 145 of the Conveyancing Act 1919 (NSW) (referred to at times as Locke King's Act provisions) is that, subject to any contrary or other intention signified by the deceased, the recipient of property the subject of a mortgage would bear the burden of the mortgage debt.
There are no specific relevant directions in the last Will regarding discharge of the deceased's funeral, testamentary and administrative expenses, debts and liabilities. There has been no suggestion by either party or counsel that the provisions of cl 8.2 of the last Will, which provides that cl 8 (dealing with the distribution of the balance of the estate) is subject to the discretionary powers given to the executors and other clauses in Part B of the last Will, give rise to any relevant direction.
There is potentially some anomaly in the evidence of the liabilities of the deceased's estate. Evidence in the proceedings reveals property title searches indicating that, as at 15 June 2022, there are mortgages to Westpac on seven of the Kennilworth lots, being lots (k), (o), (p), (q), (s), (u) and (v): CB 1099, 1107, 1109, 1111, 1113, 1114 and 1118.
However, the total liabilities of the deceased's estate, at least for the purposes of the application for administration, are disclosed in the executors' affidavit as being $4,161.63: CB 1082-1083. I note that those are all unsecured liabilities. There are no secured liabilities disclosed. It is possible, in light of the above, that the indebtedness secured by the mortgages to Westpac had been discharged by the deceased during her lifetime, but the actual mortgages themselves have not been discharged. However, beyond the above, the evidence in the proceedings does not descend into detail regarding the deceased's funeral, testamentary and administrative expenses.
The parties did not address any submissions to the effect of s 145 of the Conveyancing Act 1919 (NSW), perhaps because, despite the title searches showing mortgages, there is in fact no debt to Westpac. It suffices for me to note that, if there is any debt in respect of any of the mortgages to Westpac on seven of the Kennilworth lots (which include two lots subject to the plaintiff's claim, being lot (k) and part of lot (o)), such debt would in the first instance be borne by the party receiving that lot.
Otherwise, the residue of the deceased's estate would be liable for discharge of the deceased's funeral, testamentary and administrative expenses, debts and liabilities. If the residue of the estate were to be exhausted by such debts and expenses, then the assets specifically disposed of by cll 5.1-5.4, 6.1 and 7.3 of the last Will would become liable rateably according to value: Third Schedule, Part 2, items 2 and 6 PAA.
Accordingly, subject to any adjustments that need to be made on account of interim distributions to the defendant, the plaintiff's share of residue appears to be no more than one-third of $1,550,230.80, namely $516,743.60. I have no evidence of the expenses associated with the appointment of Ms Whitley.
In the above circumstances, all I can do is proceed on the basis that the plaintiff's claim for relief in relation to the disputed land is in addition to his entitlement under cl 8.3 of the last Will, which is apparently no more than $516,743.60.
The subsequent promises of the deceased, which I have referred to and accept were made, were in reference to the whole of the "leased lots". Ms Fendekian did not contend otherwise. Nor did Ms Fendekian seek to establish that the plaintiff had not done some work or spent some money, in detrimental reliance on the initial promises and subsequent promises, on any specific lot so as to exclude such lot from being amenable to relief in the plaintiff's claim for the leased lots. As stated above, even if that submission had been made, I do not consider that it would be fatal to the plaintiff's case.

[80]

Discussion

Ms Fendekian submitted that the work that the plaintiff had with Apace ultimately showed that the plaintiff benefited from his alternate choices, such that there was no real detriment from his decisions.
The plaintiff stated that he was aware, from his discussions with Professor Walker during his PhD studies, of the range of salaries available for the post-doctoral positions he forwent: CB 88[44].
In February 1979, the plaintiff co-founded Apace with Dr Richard (Dick) McCann: CB 91[57]. In early 1979, the plaintiff (in evidence which I accept) states that, whilst having morning tea with his parents, they had a conversation to the following effect (CB 91[59]): "I am going to work in the field of ethanol fuel and renewable energy in an organisation called Apace Research. The work I'll be doing will be of benefit to the farm. What I am doing is very high risk financially. I am only able to do this because I will receive one half of the farm one day and the security that gives me." My Father replied: "That sounds interesting".
There was some evidence of the plaintiff's salary for part of the period after June 1979, when he commenced a paid position for his proposed work with Apace. He indicates that he was paid a subsistence salary totalling approximately $10,000 for the 1980 calendar year, and approximately $28,000 for the 1981 and 1982 calendar years: CB 93[70], 94[75], 95[88].
However, the deceased was mindful that the plaintiff was sacrificing time and effort that he would otherwise spend with Apace by doing work on the farm. For example, following Jim's death, she requested him to keep milking with Mr Shepherd and encouraged him to do so with the promises: CB 108[169]. From 5 February 2005, the plaintiff took leave from Apace to work at Kennilworth Dairy full time with Mr Shepherd: CB 108[167].
As I understood it, the main financial benefit which Ms Fendekian advanced as being a countervailing benefit to be considered was that the plaintiff prospered through his work with Apace and Ethtec: DCS [140].
In answer to Ms Fendekian's submissions that the plaintiff prospered through his work with Apace and Ethtec, Mr Birtles submitted (PCS [209]-[210], [225]-[228], [281]-[284], [286]): 209. The Plaintiff's decision that he made in 1978 not to move to the United States but rather to co-found Apace was a result of discussions that he had with his parents and the promise that he would receive one half of the farm (Plaintiff affidavit sworn 15 August 2022 para 237 CB 120). 210. In late 1980, Dr. McCann withdrew from Apace and the Plaintiff was the only remaining member of Apace. The reason that the Plaintiff continued the public interest work of Apace was because of the statements made to him by his parents that he would inherit one half of the family farm, and the security that the inheritance offered him (Plaintiff affidavit sworn 15 August 2022 para 83 CB 95). The reason that the Plaintiff has been prepared to take the financial risk of co-founding and conducting the work of Apace and Ethtec is because, based on the statements made to him by his parents, he believed that he had the security of an equal share of his parents' estate (Plaintiff affidavit sworn 15 August 2022 para 238 CB 120). … 225. The Plaintiff decided not to accept the offer of a postdoctoral fellowship at Florida State University. This changed Russell's intended career path and the salary, superannuation and other financial benefits that he would have received had he accepted the postdoctoral fellowship at Florida State University (Plaintiff affidavit sworn 15 August 2022 para 43-44 CB 88). 226. Instead of accepting the offer of a postdoctoral fellowship at Florida State University, the Plaintiff decided to explore research options that were available to him in Australia. The Plaintiff co-founded Apace Research Limited, a not-for-profit scientific research organisation. The work which the Plaintiff proposed to do at Apace was a complete change of scientific field; work that was not in bioorganic chemistry, which was his PhD field, but instead work in chemical engineering. The Plaintiff intended that rural landowners (including his parents) would benefit from the work of Apace, and that he would directly assist the family farm because the family farm was to be a feedstock supplier for Apace (Plaintiff affidavit sworn 15 August 2022 para 51, 57-58 CB 90-91). 227. In 2004 the Plaintiff co-founded Ethanol Technologies Pty Limited (Ethtec) for the purpose of developing renewable ethanol fuel technology (Plaintiff affidavit sworn 15 August 2022 para 159 CB 106). Apace holds 255,556 shares in Ethtec (ex P3). The Plaintiff holds 5,000 shares in Ethtec (ex P2). The Plaintiff was cross examined about the financial statements for Ethtec to 30 June 2022 (ex D3) which at page 3 records 250,000 next to the plaintiff's name under the words "the number of ordinary shares in the company held, directly and indirectly, during the financial year by each director and their personally related entity". The plaintiff's explanation given in cross examination at T166-167 is supported by exhibits P2 and P3. 228. Exhibits P2 and P3, taken with exhibit D3, illustrate the detriment suffered by the Plaintiff in devoting his talents to the not for profit cause rather than to his own advantage - through the plaintiff's efforts far more shares in Ethtec are held by the not-for-profit organisation Apace rather than the plaintiff. … 281. The Plaintiff believes that the income which he would have received from a professional career in medicine would have substantially exceeded the financial compensation that he has received from Apace and Ethtec (Plaintiff affidavit sworn 15 August 2022 para 247 CB 121). 282. The Plaintiff has a strong interest in chemistry relating to medical science and would have accepted the offer of a post-doctoral fellowship at Florida State University in the United States in 1978, if his parents had not made the promises to him in 1977, that he would inherit one half of the family farm (Plaintiff affidavit sworn 15 August 2022 para 248 CB 121). 283. The Plaintiff believes that the income which he would have received from a professional academic research career in medical science would have substantially exceeded the financial compensation that he has received from Apace and Ethtec (Plaintiff affidavit sworn 15 August 2022 para 248 CB 121). 284. Throughout the 1980s, the Plaintiff and his wife had opportunities to purchase property and to establish a permanent home in various regions of New South Wales, and would have invested in one of those properties instead of purchasing and building their permanent home on Lot [XX] in DP [XXXXXX] if the Plaintiff's parents had not promised him that he would inherit one half of the family farm (Plaintiff affidavit sworn 15 August 2022 para 249 CB 121). … 286. The Plaintiff would not have co-founded Apace if his parents had not promised him in 1977 that he would inherit one half of the family farm (Plaintiff affidavit sworn 15 August 2022 para 250 CB 121-122).
In his initial affidavit, the plaintiff gave evidence regarding his financial circumstances as follows (CB 121): 242. I continue to be an employee of Apace and I am also a director of Ethtec. 243. My taxable income for the year ended 30 June 2021 was $37,835 and my taxable income for the year ended 30 June 2022 was $36,819. 244. My assets are as follows: (a) Amberley Park [lot (c)] estimated value at $1,800,000 (b) Superannuation with Australian Super $700,000 245. Apace provides me with a motor vehicle. I have the use of a wide range of machinery, equipment and tools owned by Apace.
The plaintiff was cross-examined regarding ETI, Ethtec and Apace. Ethtec is a for-profit company and Apace is a not-for-profit company: T 167.9-13. Apace is limited by guarantee: Exhibit D3 page 4.
In the 2000s the plaintiff co-founded Ethtec for the purpose of further developing renewable ethanol fuel technology: CB 106[159]. He gave evidence that that occurred in or about 2004 (CB 106[159]; T 156.30-41), although in cross-examination proffered that it could have been 2008 or 2006, but certainly not before 2006: T 160.30-34. The precise year is not vitally important. Nonetheless, it appears that the timing may have been closer to 2006, as on 10 July 2006 the plaintiff applied for shares in Ethtec: Exhibit P2.
By about November 2017, Ethtec was still a limited company. Consequent upon a project which Ethtec was to undertake with a Chinese company Jiangsu Jintongling Fluid Machinery Technology Company Limited (JTL) (which project was also to receive funding from Australian Renewable Energy Agency (ARENA)), Ethtec converted to a proprietary limited company. This involved a form of restructure whereby the shares held by the original shareholders of Ethtec were reissued as shares in ETI, requiring approval from Queensland courts: T 163.29-38; Exhibit D2; Exhibit D3 page 11.
The plaintiff indicated his understanding that Ethtec, as the original limited company, had approximately 309 shareholders and that as part of the above-mentioned arrangements there were to be three shareholders in ETI, being the original Ethtec shareholders, ARENA and JTL: T 163.29-38.
Specifically, on 18 January 2019, in accordance with a Scheme of Arrangement between Ethtec and its ordinary shareholders which was ratified by the Queensland Supreme Court on 11 February 2019 (Scheme), the shares that Apace held in Ethtec were transferred to ETI. On 12 March 2019 Apace received one share in ETI for each share it held in Ethtec: Exhibit P3.
The plaintiff indicated that he owned 5,000 shares in Ethtec, and that Apace owned more shares than that: T 156.30-45.
It appears that ETI has 16,042,361 issued ordinary shares fully paid: Exhibit D3 page 17; T 164.39-44. Exhibit D3 (at page 3) suggested that the plaintiff held 250,000 shares in ETI. However, it became clear in cross-examination that that was an error and the plaintiff, or at least his late wife and he, owned 5,000 shares and that Apace owned the 250,000 shares recorded in Exhibit D3: T 164.30-37, 165.1-3, 166.26-34. A holding statement issued by Link Market Services Limited suggests that, as at 15 March 2019, Apace in fact held 255,556 shares: Exhibit P3.
No company searches for Ethtec or ETI, current or otherwise, were adduced in evidence. The tenor of the evidence as a whole is suggestive that the plaintiff initially held shareholding in Ethtec which, by reason of the Scheme, became a holding of 5,000 shares in ETI, and Apace's shareholding in Ethtec became either 250,000 or 255,556 shares in ETI.
A general purpose financial report for ETI and its controlled entity Ethtec for the year ended 30 June 2022, audited as at or about 17 February 2023, was adduced in evidence: Exhibit D3.
In relation to ETI, the plaintiff (as with other directors) received a salary of $15,000 and superannuation contributions of $,1500 for the 2022 financial year: Exhibit D3 page 2; T 164.26-28.
The plaintiff accepted that his holding of ETI shares had been omitted from the asset listing in his affidavit, stating that it was an oversight: T 167.17-23. I accept that there was no deliberate attempt by the plaintiff to mislead the Court in respect of his assets.
Ms Fendekian made reference to Note 18 in the consolidated financial statements, suggesting the parent entity had total net assets and issued equity of $56,148,263: Exhibit D3 page 21. Based on that, it was suggested to the plaintiff that if his holding was 5,000 shares then he had a holding worth approximately $17,500: T 165.8-166.38 (presumably derived from 0.00031167 x $56,148,263).
There are different ways of valuing shareholdings. No attempt was made on either side to value the plaintiff's holding in ETI in any way other than as described above. Accepting, as I do, the plaintiff's evidence that he only has 5,000 shares in ETI, based on the cross-examination it does not appear that the value of the plaintiff's shareholding in ETI (at least as at 30 June 2022) was more than approximately $17,500.
There was no detailed submission as to whether the plaintiff's shareholding in ETI was some form of countervailing benefit to be considered in assessing whether the plaintiff had suffered any relevant detriment for the purposes of considering the estoppel case, or whether it was some benefit to be considered in assessing relief. However, assuming for the moment that it is to be weighed, I do not consider that the plaintiff's shareholding in ETI (accepting as I do that the total amount of the shares held is only 5,000) is of such a compelling countervailing benefit to find that the plaintiff has suffered either no detriment or to preclude relief in favour of the plaintiff.
For completeness, ultimately there did not appear to be any suggestion that the plaintiff retained shareholding in Ethtec as distinct from ETI. Certainly, Ms Fendekian did not appear to suggest that the plaintiff had any shareholding apart from the shareholding in ETI (at least as at 30 June 2022), as described above, of any significant value.

[81]

Work by the defendant

In his affidavit evidence, the defendant stated (CB 268-269[66]): As a result of working on the farm my whole life and not taking up any outside career or employment, and forgoing marriage and children so that I could assist with running the farm and with supporting Gloria, I have always expected that I would inherit most of the farm. However, this was never discussed with me by Jim or by Gloria. The only indication that she intended to do this was in 2012 when she showed me her Will made in 2010.
The defendant was cross-examined regarding this and stated as follows (T 267.32-35): Q. You've given evidence that you always expected to inherit most of the farm? A. I assumed that I was going to inherit mostly because I was doing the lion's share of the, of the work and going without pay for most of it.
He eventually quantified that statement and said that he assumed he would inherit the "lion's share" of the land, which he equated to a "decent portion" or "a good proportion of it, probably 80%, you know 70, 80%": T 268.41-269.4.
The defendant, just prior to cross-examination, gave some supplementary evidence addressing the topic of what, if any, work he did on the lots north of Stroud Hill Road: T 260. He indicated that, in the early stages after Dingadee was purchased, "the things I did personally was that we pulled down certain fences, erected new ones, cleared slashed rubbish around the creeks": T 261. As time went on, the defendant helped a builder, Ron Shelton, "erect silos, milling sheds" and "[a]t least one hay shed" over a number of years, with the help of Kevin Digby (Mr Sullivan's brother-in-law). This was in or about 1979 through to the 1980s: T 261. After that, he indicated that "once we got… the property up to a certain standard, … we did very little": T 261.
When asked to focus on work he, rather than "we", did, the defendant stated (T262.9-15): A. Well I did a certain amount of things, but I was mainly on Kenilworth. We also when the parents purchased Yates's and had Haggarty's, or Haggarty's first and then Yates's, there wasn't all that much work to be on Haggarty's. It was pretty clean. Dad didn't want any sort of fences pulled down. So we - I did a bit of slashing, but mainly the work I did when we bought Yates's was just rounding up cattle and transporting over to Kenilworth. Really the rest was up to Colin [Sullivan] and his two nephews.
Once the properties north of Stroud Hill Road were leased, the defendant stated that that was "a different thing altogether", explaining (T 262.22-32): A. When the properties were, when those properties - when the farm closed, when Dingadee Dairy closed down and we - Gloria leased out those properties, yeah, that was different because we basically let the people renting, leasing the properties do the work. Q. You didn't do any work after that time? A. Very, very little. None of us - I did - again, if I had to, if there was a problem, I would get in touch with Ray White. They would look for a contractor or they might - or Dee Braithwaite's partner, Robert Young, would do something, but basically it was left in the control of people leasing the lands. There was no, there was no - yeah.
The defendant did not advance a case that he had carried out work of any significant substance in relation to the leased lots.

[84]

Principles

In cases of equitable (or, more specifically, proprietary) estoppel, the starting point has been described as a "prima facie entitlement" to relief framed on the basis of the assumed (or expected) state of affairs: Soulos at [397]; Delaforce at [63]-[65]; Giumelli v Giumelli at [42] per Gleeson CJ, McHugh, Gummow and Callinan JJ, quoting Deane J in Verwayen at 443; Donis v Donis (2007) 19 VR 577; [2007] VSCA 89 (Donis) at [19] and [32] per Nettle JA (then sitting on the Victorian Court of Appeal) (Maxwell ACJ and Ashley JA agreeing).
This prima facie entitlement arises upon the claimant establishing sufficient detriment, being any "material disadvantage" which is "substantial" although it need not be quantifiable in the same way as an order of damages: Ashton v Pratt (CA) at [147] per Bathurst CJ, citing Gageler J in Hills at [150]; Priestley v Priestley at [18] per Macfarlan JA, [164] per Emmett AJA, McColl JA agreeing; Soulos at [381].
The character of the alleged detriment is also relevant to the issue of proportionality, as was made clear by Emmett AJA in Priestley v Priestley at [160] (omitting footnotes): There may be circumstances in which the potential damage to an allegedly estopped party is disproportionately greater than any detriment that would be sustained by the other party, to the extent that good conscience could not reasonably be seen to be precluding a departure from the assumed state of affairs if adequate compensation were made or offered by the allegedly estopped party for any detriment sustained by the other party. If a person is induced to make a relatively small, readily quantifiable monetary outlay on the faith of another person's assurances, it might not be unconscionable for the second person to resile from her or his assurances to the first person on condition that she or he reimburse the first person for the relevant outlay. However, where the detriment suffered is of a kind and extent that involves life changing decisions and irreversible consequences of a profoundly personal nature, beyond the measure of money, it may be that the equity raised by the promisor's conduct can only be accounted for by substantial fulfilment of the assumption upon which the promisee's actions were based. See also Donis at [34]; Sidhu v Van Dyke at [84] per French CJ, Kiefel, Bell and Keane JJ.
Allsop P in Delaforce stated at [4] (emphasis added): Proportionality of the claimed interest or remedy to the prejudice or detriment is undeniably a relevant consideration, and sometimes of considerable importance. It should not, however, be transformed into a necessary constitutive element of a cause of action to be pleaded or proved by the party seeking relief. To do so would elevate one consideration above others, and in particular above the importance of making good an expectation by encouragement or representation: Plimmer v The Mayor, Councillors and Citizens of the City of Wellington (1884) LR 9 App Cas 699 at 713-714; Riches v Hogben [1985] 2 Qd R 292; Giumelli (at [10] and [35]). It would tend to equate the analysis to one requiring that the party encouraged receive no more than it can prove that it suffered in detriment. This would see the equity become one of compensation for proved equivalent detriment. The equity is a broader one based on the just and conscionable satisfaction in appropriate fashion of the equity arising from the expectation created in another by encouragement or representation. As Handley AJA says, the role of proportionality is better understood, in a doctrine dealing with the legitimacy or otherwise of resiling from an encouragement or representation that has created an expectation, as assisting in an assessment whether what is claimed or contemplated to be granted is disproportionate or unjust in all the circumstances.
There is no positive requirement for a plaintiff to prove that the relief sought is proportionate, rather the concept of proportionality is a negative principle such that enforcement of the expectation must not be disproportionate: Delaforce at [77] per Handley AJA (Giles JA and Allsop P agreeing); Soulos at [399] per Ward P (Meagher and Mitchelmore JJA agreeing).
This approach appears to be in contrast to that which has been taken in the United Kingdom, which places emphasis on the positive operation of proportionality in the doctrine of proprietary estoppel: see Henry v Henry [2010] UKPC 3; 1 All ER 988 at [65] per Sir Jonathan Parker for the Board; Habberfield v Habberfield [2019] EWCA Civ 890 at [56]-[58] per Lewison LJ (Moylan and Rose LJJ agreeing); see generally Professor Ben McFarlane, The Law of Proprietary Estoppel (2nd ed, 2020, Oxford University Press) at [7.123]-[7.136].
What amounts to a "life-changing" decision may vary from case to case and it is a guide to determining whether there is significant detriment: Soulos at [382].
In Donis, such decisions included the claimant's decisions to: move into an older home in an area well removed from her family; put her and her husband's funds into improving the property and defraying mortgage payments; put her own efforts and those of her family into renovating the property; and allow herself to become pregnant and give up teaching sooner than she otherwise would have done: Donis at [33].
In Soulos, Ward P identified the claimant's life-changing decisions as including: his consent to a less favourable settlement of family law proceedings against his ex-wife at the behest of his parents, on the faith of a promise from his parents that they would assist him re-entering the property market; the payment of rent (which covered mortgage repayments); and renovations which were carried out and/or paid for by the claimant: Soulos at [383].
In Ashton v Pratt (CA), Bathurst CJ found that the claimant's alteration of her position in becoming the promisor's mistress and not returning to the escort business for a period of time was not a life-changing event amounting to any detriment which called for the enforcement of the promise: Ashton v Pratt (CA) at [143].
In Waddell v Waddell [2012] NSWCA 214 (Waddell), the claimant worked his family's farm full-time for almost three decades in the expectation (induced by the promisor, his father) that he would receive a 10 acre portion of the farm. Whilst not adopting the language of Nettle JA in Donis, Campbell JA said to similar effect at [67]: … That career choice has brought with it the consequences of being without the superannuation and other benefits that an employee would have, and being inhibited in his borrowing capacity.... It has set the course of [the claimant's] life over decades, in a way that cannot now be unscrambled….

[88]

The land area of the leased lots is (10 Dingadee lots at 301.132 ha + the area of the 3 and a part of the Kennilworth lots at 22.8641 ha =) 323.9961 ha. The value of the leased lots is ($4,953,527 + $334,097 =) $5,287,624.
Ms Fendekian submitted that, if the values attributed to the lots in the supplementary valuation report (CB 1245-1246) are applied, the relief sought (being the transfer of all 14 leased lots to the plaintiff) would be land in the value of $7,028,927: DCS [182]. It is not clear to me how that figure is calculated.
On the above figures, if the entirety of lot (o) were included, the value of the 10 Dingadee lots ($4,953,527) and the 4 Kennilworth lots ($2,346,497) would be $7,300,024.
In any event, Ms Fendekian submitted that such a result is manifestly disproportionate to any detriment even on the plaintiff's best case: DCS [182].
Ms Fendekian submitted that the disproportionality of the relief sought by the plaintiff vis a vis any detriment is reinforced when one has regard to the fact that the deceased has already gifted to the plaintiff real property valued in the amount of $2,458,620 (being lot (a) at $1,893,600 + lot (b) at $565,020, based on the revised figures of Mr Ellis at CB 1245) as per cl 7.3 of the last Will, plus one-third of the residue estate (as per cl 8.3 of the last Will): DCS [184].
It seems to me that Ms Fendekian's submission in this regard does not accord with the applicable legal principles. In Kramer, Ward P re-emphasised that "[t]he authorities on relief for a proprietary estoppel… make clear that the starting point is the prima facie position that the expectation be made good", and rejected the appellant's contention that the legacy under the Will would have been sufficient to assuage the deceased's conscience as it assumed a starting position of asking whether there should be further provision aside from the existing legacy, which approached the issue from the incorrect perspective: Kramer at [243] per Ward P (Leeming and Kirk JJA agreeing).
The fact that the deceased gifted lots (a) and (b), totalling $2,458,620, to the plaintiff under the last Will does not to my mind ameliorate or have the effect of extinguishing the plaintiff's claim to relief to be granted the additional 12 leased lots (including part of lot (o)), totalling $2,829,004.
In relation to the plaintiff's evidence that, between June 1989 and 2006, the plaintiff assisted with the Kennilworth and Dingadee Dairy operations by spending four to five hours per week performing various farming tasks without remuneration (CB 100[123]), he agreed that he spent the bulk of his time during those years with the work of Apace. He indicated that Apace had not been a financial success, but he had had some success in raising the public profile of renewable fuels: T 160.18-46.
The plaintiff stated in evidence (limited to his belief) at CB 121: 247. … I believe that the income I would have received from a professional career in medicine would have substantially exceeded the financial compensation I have received from Apace and Ethtec. 248. … I believe that the income I would have received from a professional academic research career relating to medical science would have substantially exceeded the financial compensation I have received from Apace and Ethtec.
Further, the plaintiff stated in evidence, which I accept, at CB 121-122: 250. I would not have co-founded the not-for-profit scientific research organisation Apace Research Limited to conduct research and development of renewable energy technologies for the purpose of assisting rural landowners if in 1977 my parents had not promised me that I would inherit one half of the family farm.
The plaintiff's case for detriment was presented holistically, with all of the elements of forgoing opportunities and work carried out sharing the common thread that the plaintiff (for the most part) remained living and working in or around the farm secured by the promises that he would inherit, under the initial promises, "half of the farm" and, by the subsequent promises, the "leased lots": PCS [222]-[286].
I have outlined above my findings in respect of the plaintiff's case for detrimental reliance regarding: 1. farming tasks the plaintiff carried out principally in respect of the Kennilworth and Dingadee Dairy operations; 2. forgoing educational opportunities; 3. financial contributions and sacrifices; 4. forgoing other opportunities to purchase land elsewhere; and 5. land maintenance and improvement works.
It was submitted on behalf of the plaintiff that his detriment is of a kind and extent that involves "life changing decisions with irreversible consequences of a profoundly personal nature": PCS at [222]; T 417.37-41, 474.29-37.
The plaintiff's career choices to remain in proximity to the farm, his physical and financial assistance which he provided to the family farm operations, the establishment of his family home, the many hundreds of hours he spent on the farms and properties carrying out work, and his work on the leased lots "set the course" of his life over decades "in a way that cannot now be unscrambled": Waddell at [67].
The relevant test has been described in terms of whether final relief of the kind sought by the plaintiff would be "wholly disproportionate" to the detriment suffered or "out of all proportion" to the detriment: Soulos at [402], [407]; Priestley v Priestley at [164].
Viewed holistically and taken together, I consider that the choices made by the plaintiff involve life changing decisions with irreversible consequences of a profoundly personal nature, beyond the measure of money. I do not regard the relief he claims as being "wholly disproportionate" or "out of all proportion" to his detriment.
My finding in this regard does not depend upon the value to be attributed to the small 3.5 ha area of part of lot (o), which formed part of the leased lots, whether it be $63,000 or otherwise.

[90]

Relief and costs

I have determined that the plaintiff's construction claim and rectification claim fail, but the plaintiff's estoppel claim succeeds.
I find that the plaintiff has made out a case for estoppel in relation to what is the first option, being a claim for the 10 Dingadee lots, as well as the 4 Kennilworth leased lots (i.e. lots (k), (l) and (m), and part of lot (o)). Mr Birtles acknowledged that, in relation to that scenario, there would need to be a practical solution worked out involving subdivision of that part of lot (o) which lies to the north of Stroud Hill Road and was part of the leased area.
Costs are in the discretion of the Court, subject to the CPA, rules of Court and any other Act: s 98(1)(a) CPA.
The Court: 1. has full power to determine by whom, to whom and to what extent costs are to be paid: s 98(1)(b) CPA; and 2. may order that costs are to be awarded on the ordinary basis or on an indemnity basis: s 98(1)(c) CPA.
The general position is that if the Court makes any order as to costs, the Court is to order that the costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs: r 42.1 UCPR.
In Horn v GA & RG Horn Pty Ltd (No 2) [2022] NSWSC 1747, I addressed the question of what is a relevant "event" for the purposes of a cost order: What is an event? 71. Depending on the nature of the litigation the "event" may be characterised in more than one way: Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 (Doppstadt) at [15] per Ward, Emmett, and Gleeson JJA. 72. Generally, the "event" refers to the event of the claim or counterclaim, as the case may be, and may be understood as referring to the practical result of a particular claim: Doppstadt at [15] citing Windsurfing International Link v Petit [1987] AIPC 90-441 at 37,861-37,862 per Waddell J. 73. An "event" may refer to the determination of the proceedings as a whole or of particular causes of action, although not necessarily so. It may include certain disputed questions of fact or law. 74. An event will not necessarily be limited to "issues" in the technical pleading sense, but any disputed question of fact or law: Hughes v Western Australian Cricket Association (Inc) & Ors (1986) ATPR 40-748 at 48,136 per Toohey J citing Cretazzo v Lombardi (1975) 13 SASR 4 at 12 per Hogarth J; Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 at 22 per Young J (as his Honour then was); Australian Receivables Ltd v Tekitu Pty Ltd (subject to deed of company arrangement) (deed administrators appointed) & Ors [2011] NSWSC 1425 at [25] per Ward J (as her Honour then was). 75. How the Court approaches the question will essentially be guided by the circumstances of each given case rather than abstract analysis of how the notion of an event should be viewed.
In Taylor v Stav Investments Pty Ltd as trustee for the Stav Investments Family Trust (No 2) [2023] NSWCA 322 at [7], the Court of Appeal referenced its earlier decision in Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38], in which it had summarised the principles governing the making of an order as to costs in dealing with particular issues in proceedings.
Where litigation involves multiple issues, the ultimately successful party may have failed on one or a number of those issues. The "event" is not necessarily limited to the final overall outcome, but may aptly apply to individual issues in the proceedings.
Broadly speaking, there were three claims brought in the proceedings as I have indicated: a construction claim, a rectification claim and an estoppel claim. I have found against the plaintiff in relation to the construction claim and rectification claim (except as to the minor but inconsequential change of the words "Dinga Dee" to "Dingadee"), but in favour of the plaintiff in relation to the estoppel claim.
It is not to be thought that very little time was taken up in the proceedings by the construction claim and rectification claim. There was very considerable evidence addressing the issue of whether there was a correct or predominantly usual means of spelling the names "Dingadee" and "Kennilworth", as well as addressing how the deceased spelt those names. There was also very considerable focus on evidence from Mr Gowing and Mr Doyle.
There was a particular connection between the construction issue and the rectification issue.
My provisional view is that potentially one way of addressing costs in this case is to order that the plaintiff pay the defendant's costs of the construction claim and rectification claim and for the defendant to pay the plaintiff's costs of the estoppel claim, and to order that the costs of those issues be set off against one another: see for example Wang v Yu (No 2) [2024] NSWSC 4 at [187]-[189], citing Riva NSW Pty Ltd v Key Nominees Pty Ltd [2023] NSWSC 711 at [221]-[224].
In expressing that as a provisional view, I am inviting the parties to reflect on the question of how costs ought to be dealt with and to see whether there can be some agreement on the matter. I am not requiring that there be agreement, merely that the parties consider whether costs may be agreed or at least any contested issue in respect of costs is able to be narrowed.

Reeves v Reeves

At a glance

Court

Decision date

Before

Source

Judgment (92 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (113)

Cited By (10)