Tapp v Barnett

Summary of salient evidence

1. Clare Robinson inherited Myoora pursuant to the will of her late husband, Ronnie Robinson, who died in August 2012. There are two houses on the property. These houses may be referred to as the main house (or top or upper house) and the second house (or bottom or lower house). Clare and Ronnie Robinson lived together in the main house, and Clare continued to live there following her husband's death.
2. Jan Barnett gave evidence that at about that time she moved into the main house to live with her mother. Jan Barnett, a school teacher, was then aged 58.
3. Kylie Barnett was then aged 25. She gave evidence that she had for some years lived in the bottom house, including with her daughter Summar who was born in 2010. In 2014, in the course of a period travelling, Kylie Barnett met and commenced a relationship with Ben Tapp. He was then living on a 500 acre property in Warwick, Queensland. Ben Tapp, who is about 22 years older than Kylie Barnett, had very considerable experience in the cattle industry in the Northern Territory. He had about 80 cattle on the Warwick property, but he was mainly focused on breeding and training campdraft horses. He and Kylie Barnett shared a strong interest in campdraft horses.
4. In 2015, following a period when the pair travelled together, Kylie Barnett moved to Warwick to live with Ben Tapp on his property. He was at that time in the process of divorcing his wife. The property at Warwick was placed on the market for sale in about late-2015.
5. Kylie Barnett had left her furniture in the bottom house on Myoora, intending to return. She and Ben Tapp visited Myoora on a regular basis.
6. In about November 2016 the plaintiffs moved into the bottom house on Myoora and commenced living there on a permanent basis. They both gave evidence of conversations they had with Clare Robinson throughout 2016 in which she said that they would be most welcome to live at Myoora. Clare Robinson and Jan Barnett continued to live in the main house on the property.
7. In about early April 2017 Ben Tapp and Kylie Barnett attended a mediation in Brisbane in relation to the divorce proceedings. It came about that Mr Tapp was able to settle the proceedings if he made a payment of $180,000. However, as the Warwick property had not yet sold, he did not have funds available in that amount. It was decided that Kylie would see if her parents may be able to help. She deposed that she called her father first but he could not or would not help. She deposed that she then called Jan Barnett, and there was a conversation as follows: Kylie: Jan, I need $180,000 to help pay out Ben's divorce. Can I borrow it from you? Jan: I don't have $180,000 to give you.
8. Kylie Barnett then deposed that Clare came onto the line and there was a conversation as follows: Clare: I've got the money. I'm happy to loan it to you. Kylie: We will repay you when Ben's property at Warwick is sold. Clare: Don't worry too much about that now. We can discuss it when you get back from Brisbane. Kylie: If I give you our solicitors account details, can you transfer it to them? Clare: Jan knows how to do that. I will give the money to Jan and then she can transfer it to your solicitor.
9. These conversations are disputed by Jan Barnett. She deposed that she had a conversation with Kylie to the following effect: Kylie: We have to pay out Ben's wife for her interest in "The Glen", it is $180,000.00. Could you or grandma get me $180,000.00. If we can pay her out now it can be signed off this afternoon. We will pay you back when we sell "The Glen". Jan: I will talk to mum (Clare) and see what I can do.
10. Jan Barnett then deposed that she spoke to Clare who said words to the following effect: I don't know Ben well enough to trust him. You have put a great deal into this property. You have employed a man, fixed many things including the pool, water, weeds, fencing and electrical. I will give you the $180,000.00 so that you are sitting on it. You can then decide whether you loan it to Kylie.
11. Jan Barnett deposed that shortly thereafter she called Kylie and said: I will forward the $180,000.00. To what bank account does it need to go.
12. She says that Kylie then gave her the details of the account of the solicitors acting for Ben Tapp.
13. It is clear that on 6 April 2017 $180,000 was transferred from an account held by Clare Robinson into an account held by Jan Barnett, and that on the same day $180,000 was transferred from that account into the account of Ben Tapp's solicitors (O'Neill Family Lawyers). The money was thereafter used in the settlement of the divorce proceedings.
14. Kylie Barnett's version of these events is corroborated by Ben Tapp who deposed that, after making some telephone calls at the mediation, Kylie said: Mum and Dad didn't have any money, but Clare said she will loan the money to us.
15. Reference should also be made to the further evidence given by Kylie Barnett that a few days after the $180,000 had been received, she had a conversation with Clare in which the following was said: Clare: Jan and I went to the Post Office together in Manilla and I got $180,000 transferred to Jan's account and then Jan did an internet transfer to Ben's solicitor. I don't know how to use that online banking. Kylie: Thanks for your help, Nan.
16. Kylie Barnett further deposed that after the Warwick property had been sold (in about June 2017) she had a conversation with Clare, in the presence of Ben Tapp, as follows: Kylie: Nan, Ben and I have the money now, we can pay you back the $180,000. Clare: You don't need to, Darling. You haven't been helped out to get into properties like your brother and sister. You can keep the money. I'm going to leave money to my other grandchildren in my Will, so instead just keep the money, and we'll say you get yours early. Kylie: Really? That's very generous. Thank you.
17. Ben Tapp gave evidence in similar terms of a conversation he said occurred shortly after the sale of the Warwick property in which Clare said that there was no need to pay back the $180,000.
18. Jan Barnett deposed that around the time the Warwick property was sold, Kylie told her that the proceeds of about $200,000 had been placed on term deposit. Jan Barnett deposed that "there was no discussion with me at the time of any repayment of the $180,000". However, she deposed that soon after Clare's death in September 2018 she asked Ben Tapp when he would be in a position to repay the $180,000 and he responded by saying that he would do so by breaking the investment. That is denied by Ben Tapp, who gave evidence that Jan Barnett never suggested that the $180,000 be repaid to her, or to Clare or Clare's estate.
19. In about July 2017 Ben Tapp and Kylie Barnett became interested in purchasing a property at Attunga, which is about 30km away from Myoora. They both gave evidence that they negotiated over the price and began to arrange their finances with a view to purchasing. Ben Tapp gave evidence to the effect that an offer to purchase for $900,000 was accepted, and finance had been approved.
20. Kylie Barnett was pregnant at that time. She deposed that the bottom house at Myoora needed a lot of maintenance and was not very comfortable, and she really wanted a place in which to settle down. She deposed that when her mother realised that she and Ben were going to move away from Myoora she said to them: Jan: Look, you don't need to buy the block at Attunga. Stay here and we'll sort out something with Myoora. With everything that is going on with John, Clare feels much safer with you here. As soon as the case is settled with John, Clare will put the thousand acres across the road into your names.
21. The references to "John" are to Clare's son John Robinson, who was at that time in litigation with his mother, including in relation to Myoora. The reference to the thousand acres across the road appears to be to an area sometimes referred to as the "hill paddock across the road". This is a part of Myoora that is located generally to the west of a road that runs in an approximately north to south direction across the property. Ben Tapp gave evidence that in about late 2016 he told Clare that he was interested in purchasing that area from her.
22. Ben Tapp deposed that he had a conversation with Jan Barnett about the Attunga property in the following terms: Ben: Our offer was accepted for the Attunga block for $900,000 Jan: Do you think you can afford that? Ben: Yes, it's already approved. Jan: Look, you don't need to buy the block at Attunga. Stay here and we'll sort out something with Myoora. With everything that is going on with John, Clare feels much safer with you here. As soon as the case is settled with John, Clare wants to sell you the hill paddock across the road and I'm hoping I can do something with Clare to take over the rest of Myoora. Ben: Okay. If we're going to stay here, can I run some more cattle on Myoora? Jan: Yes, that's fine. Clare's already told you that you can.
23. Jan Barnett denies that such a conversation occurred. She deposed that Ben Tapp told her that they were not proceeding with the Attunga purchase because the land was too small and the irrigation was inadequate.
24. In any event, Ben Tapp and Kylie Barnett decided not to move to Attunga. However, following an argument between Kylie and Jan in about December 2017, the plaintiffs again started looking for a property to purchase. Ben Tapp gave evidence that on about 24 January 2018 they made an offer to purchase a 100 acre property on the outskirts of Tamworth, and the offer was accepted. It seems that this purchase did not proceed in circumstances where it became known that Clare had been diagnosed as terminally ill with pancreatic cancer. Ben Tapp deposed that on about 26 or 27 January 2018 Jan Barnett said to Kylie and himself: Clare has pancreatic cancer. She is terminally ill - Don't buy the block at Tamworth. Stay here and look after Clare for her last few months. We'll make some arrangements with Myoora for you two - We'll give you half of the country.
25. Kylie Barnett gave evidence of a similar conversation in which Jan Barnett said: Don't buy the block at Tamworth. Stay here and look after Clare for her last few months. She loves having you and Ben around and we'll make some arrangements with respect to Myoora for you in Clare's will.
26. Jan Barnett denies that any such conversations occurred. She denies that she ever requested Ben or Kylie not to buy a property away from Myoora.
27. It appears (including from text messages) that at about that time there was discussion about Clare making a new Will. Ben Tapp deposed: Around late January 2018 myself, Kylie, Jan and Clare had a long family discussion about the fate of the family and Myoora. We discussed Clare's diagnosis, the plan for Myoora and how we would deal with John's court proceedings. Clare said: I don't want John to have Myoora after these court proceedings. I want to give Myoora to Jan but I need to leave something to the other kids. - Jan, if I leave Myoora to you, you will need to pay out John, Gai and Wendy's kids. I need to speak to our lawyer to change my will. Within a few days, Jan came down to the bottom house and Kylie and I had a conversation with Jan as follows: Jan: I've been thinking about Myoora - I'm not going to have the money to pay out John, Gai and Wendy's kids and I'm too old to get a loan. I was thinking, if you can get the money to pay out my siblings and give me half of the cattle on Myoora, I'll transfer you half of Myoora when Clare dies. Ben: That sounds alright to me. We'll pay out the others under the Will, and from this point on we'll split all the cattle sold off Myoora.
28. Kylie Barnett deposed that there was a conversation to the following effect at about that time: Clare: I want to leave Myoora to Jan because you've always been the one here looking after me, but I also need to leave at least something to John, Gai and Wendy's kids. Jan you would need to pay out John, Gai and Wendy's kids $175,000 each. That's a bit over $500,000. Jan: I don't have the money to pay them out and I'm too old to get a loan. Ben and Kylie, if Clare leaves the property to me, but you pay out John, Gai and Wendy and we go halves in all the Myoora cattle, then I'll transfer half of Myoora to you. Kylie: That should be fine. But if we're going to pay for half of Myoora now and it's going to go into your name, will you give us something in writing to prove you'll transfer it to us when you get it? It's a big risk. Ben: Don't worry about that Kylie. Your Mum's given us her word. Jan: I wouldn't do the wrong thing by you. After you've got your half, we can talk about you buying me out of the other half later. I've got my other block at Warialda and I'll be happy to spend most of my time there. Clare: Okay. I'll see a lawyer to draw up a new Will.
29. By reference to Mr Tapp's affidavit, Jan Barnett denied that any conversations occurred as set forth in [32] above. In relation to the first of the conversations alleged by Ben Tapp she deposed that she "knew that to be the intention of my mother's Will but it was never discussed with the Plaintiffs at that time". In relation to the second of the conversations alleged by Ben Tapp she said that "Kylie was still angry with me at this time and accordingly I did not visit their household for some months and never felt welcome after that time, so any subsequent contact was usually outside the house". Jan Barnett did not explicitly deny in her affidavit that a conversation occurred as set forth in [33] above.
30. Ben Tapp further deposed that within a few days of 31 January 2018 (when Jan Barnett had sent certain text messages) he and Kylie met with Jan Barnett and a conversation to the following effect took place: Jan: Clare is going to change the Will to leave Myoora to me. Will you still be able to get the money to pay out the others? Ben: It [sic] don't see a problem with getting the money - We've already been approved for $900,000 and it won't be anywhere near that. Jan: Well that's good. So long as you've got the money, I'll get Clare to leave Myoora to me in the Will. Ben: Hang on - If I'm getting the money for you then I need to be certain that Kylie and I will end up with half of Myoora. That's a big risk for us. We need some sort of security. Jan: As soon as I get Myoora in my name, I'll transfer half of it to you. Kylie: Righto then Mum, Can you sign something to say that for sure? - We're taking a big risk here. Ben: Don't worry Kylie - You're [sic] mum has given us her word. We don't need to sign anything. Jan: You've got my word. When I get it, I'll give half of Myoora to you. Ben: Okay. That's enough for me. Jan: I'll confirm with Clare that's what we'll do and get her to sign the new Will. Ben Tapp deposed that after the conversation he and Jan shook hands. Jan Barnett denied that any such conversation occurred.
31. Ben Tapp deposed that as at late January 2018 he and Kylie had about 180 head of cattle on Myoora, worth in the vicinity of $200,000. He gave evidence that from that time each time cattle was sold Jan Barnett "drafted off and sold half of the offspring for herself". Jan Barnett gave evidence to the effect that she "already owned half of the cattle on Myoora".
32. On 13 February 2018 Clare Robinson made a new Will. She appointed Jan Barnett and Ben Tapp as executors and trustees of the Will. By cl 3, Myoora was given to Jan Barnett absolutely, but subject to a condition that she make certain payments to her siblings (or their children) within six months of Clare's death. The payments were: 1. $150,000 to John Robinson; 2. $175,000 to Gai Robinson; and 3. $175,000 to the children of Wendy Farquhar, who died in November 2017.
33. By cl 4 of the Will, a water access licence was given to Jan Barnett. The residue of the estate, dealt with in cl 5, was divided between John, Gai and Wendy's children. The Will was witnessed by Mr Doug Biffin, solicitor, of RJ O'Halloran & Co of Tamworth.
34. In March 2018 a mediation was held in relation to the litigation between Clare and John. On Clare's side, the mediation was attended by Jan Barnett and Ben Tapp. Kylie Barnett remained at home with her newborn child. It appears that a settlement was reached that would involve John receiving $320,000 immediately and $80,000 upon Clare's death.
35. Ben Tapp deposed that he, Clare and Jan had a conversation to the following effect: Clare: Well I only have about $170,000 that I can give John now, so if we're going to pay out John, Ben and Jan, you'd better get the other $150,000 so we can settle this today - You'll be the ones getting the property when I die, after all. Jan: I don't have the cash. Ben, if you can pay it now, then we'll take that off the money that we agreed you'd pay my siblings under Clare's Will and that can be part of your buy in for half of Myoora. Ben: Okay.
36. Ben Tapp further deposed that he then arranged for the transfer of $150,000 from his investment account with Landmark to the trust account of the solicitors (RJ O'Halloran & Co). There is no dispute that such transfer occurred, and that the money was used in the settlement of John's claim. However, Jan Barnett denies that there was a conversation as alleged by Ben Tapp, and she characterises the payment as a partial repayment of the $180,000 loan she says she had earlier made to enable Ben Tapp to settle his divorce proceedings. Jan Barnett deposed that at the mediation Ben Tapp said: I can pay the $150,000.00 now as my term deposit is about to reach full term and I can repay the loan to Jan. That can be Jan's contribution to John.
37. It should be noted that Kylie Barnett deposed that in the course of the mediation she had a telephone conversation with Ben Tapp in which he said: It settled. Clare will pay John $170,000 now and you and I will pay him another $150,000. When Clare dies she will leave him $80,000 under the Will. We'll still pay out Gai and Wendy's kids and Jan will transfer half of Myoora to us. I'm going to pay the $150,000 now.
38. On 15 March 2018 Clare Robinson made a codicil to her Will to revoke the condition in favour of John and in lieu thereof give a legacy of $80,000.
39. Clare Robinson died on 11 September 2018. Mr Biffin of RJ O'Halloran & Co acted for the executors, Jan Barnett and Ben Tapp. Under the terms of the Will, as amended by the codicil, the gift of Myoora to Jan Barnett was conditional upon her paying a total of $350,000 (to Gai Robinson and the children of Wendy Robinson) within six months.
40. Ben Tapp gave evidence of discussions around the time of Clare's death about borrowing money to make those payments. He deposed that he, Kylie and Jan had a conversation in which the following was said: Jan: Well, the land in [sic] still in my name for the moment, so if we borrow the money together now, I'll put Myoora up as the security for the mortgage, then when you take your half of Myoora, you can just take over the whole of the mortgage. Ben: Okay.
41. Jan Barnett denied that such a conversation occurred. However, she gave evidence to the effect that around that time she offered to share a bank loan with Ben Tapp "to be secured by two lots on which the two houses were located". She deposed that Ben Tapp said that Kylie wanted a house in her own name and there was discussion about a subdivision with a house on each subdivided lot, with one lot to go into Kylie's name only.
42. Ben Tapp further deposed that around that time he and Jan Barnett had a conversation with Mr Biffin as follows: Ben: When can we do the transfer of half Myoora into the names of Kylie and I? Mr Biffin: Well the limitation period for the family provisions claim is one year from the date of death. I'd recommend that we keep the land in Jan's name until that limitation period passes and then you can transfer some of the lots into the names of Kylie and yourself - Otherwise, it'll just be messy if Gai makes a family provisions claim. Ben: Okay. We will revisit it at the end of the year.
43. Jan Barnett agreed that there was a discussion with Mr Biffin about transferring land but she denied that there was any agreement reached involving Ben Tapp obtaining an interest in the land.
44. It appears that in March 2019 the Myoora titles were transferred into Jan Barnett's name and a loan was obtained from Regional Australia Bank to facilitate the payments specified in the Will. The loan was made to Ben Tapp, Jan Barnett and Kylie Barnett, and was secured by mortgage over Myoora. For some reason, not fully explained in the evidence, the loan was for only $340,000 so a further amount of about $10,000 was required to make the payments. It is not in dispute that Ben Tapp provided the further amount out of the proceeds of the sale of some cattle, although Jan Barnett says that the cattle sold were owned jointly by Ben Tapp and herself. Jan Barnett accepted in cross-examination that since the inception of the loan Mr Tapp and Kylie Barnett have been meeting half of the payments.
45. In approximately March 2019 Jan Barnett swapped houses with Kylie Barnett and Ben Tapp. That is, Jan Barnett moved into the smaller bottom house, and Kylie Barnett, Ben Tapp and their family moved into the larger top house. Both Ben Tapp and Kylie Barnett gave evidence to the effect that Jan Barnett suggested the move, and part of her reasoning was that Kylie and Ben will "end up running the property anyway" and would be "taking over the farm". Jan Barnett gave evidence to the effect that Mr Tapp suggested a swap, and she agreed.
46. It is not in dispute that later in 2019 there were discussions about a transfer of part of Myoora, but again the respective accounts are very different.
47. Ben Tapp deposed: After Kylie and I had moved in [sic] the top house, sometime around mid-July 2019, we arranged a meeting to discuss exactly what lots Kylie and I would take from Myoora and what lots Jan would keep. Jan brought an aerial map of Myoora with her and had marked out how she would like to divide it. Using the map as a prop, we had a conversation at the dinner table in the main house as follows: Jan: You've got the family, so you should take the houses and the infrastructure, but I want to take the better cultivation country and the water. You can have all of this land (and Jan pointed [to] an area that she had drawn out on the map). I'll only be here for a couple of years because I'll [sic] planning on moving back to Warialda. When I go, we can talk about you buying the other half off me. Ben: Okay, we're happy with that. I'll arrange a lawyer to make it all happen. Jan: Okay. … Around the same time I started making arrangements with Dean Thompson at Regional Australia Bank for the mortgage to be transferred to our lots and for Jan to be released from the loan… Around August 2019, I started to make arrangements to have a lawyer affect the arrangements discussed above.
48. Kylie Barnett deposed: After the house swap myself, Ben and Jan had a meeting in the top house. Jan had brought with her an aerial map of Myoora. We had a long discussion about how we would divide Myoora. The discussion went round and round and a number of different ways to divide the lots were proposed. Ultimately a division of the land was plotted out on the map and a conversation was had as follows: Jan: I'd prefer to have the better farming country and the irrigation water. Ben: That's fine, because we'd prefer the cattle country. - That's all I've ever known. Jan: Well, I'm happy with that if you are? Kylie: I'm happy. Ben: Good. I'll speak to a lawyer and have it drawn up.
49. Jan Barnett took issue with the conversation as alleged by Ben Tapp. She deposed: …I deny that the conversation occurred as described. The map that was present had been produced into the conversation by Ben Tapp and his attitude throughout that conversation was dominating. Ben Tapp was describing to me on the map that he wanted more than half of the property and we disagreed strongly as to his demands. At no time did I agree to any arrangement that would see him acquire any part of the property.
50. She further deposed: I further deny that there was ever any agreement concluded as to the transfer of any land to the Plaintiffs. There was [sic] certainly discussions about my transferring part of "Myoora" to my daughter Kylie, but I never agreed to any plan that involved transfer of land to Ben Tapp.
51. It appears from the documentary evidence that from about late-July 2019 Ben Tapp took steps towards the effecting of a transfer of part of Myoora into the names of Kylie Barnett and himself. It seems that he raised the matter with Mr Biffin shortly prior to 22 July 2019. Mr Biffin's email to Ben Tapp of 22 July 2019 includes the following: Further to our recent telephone conversation, we confirm that our instructions will be limited to the finalisation of the estate matter only. If yourself, Kylie and Jan are still willing to proceed with the a [sic] further conveyancing transaction for part of the property styled "Myoora", it is appropriate that you engage the services of independent legal advice to facilitate the transaction. You may wish to contact the following to proceed with the transaction…
52. It further seems that in late-July 2019 Ben Tapp was in contact with the Regional Australia Bank about transferring the loan and mortgage to the lots being transferred. On 26 July 2019 he sent an email to Dean Thompson of the bank enquiring as to whether he had "any news from credit about the subdivision and transfer of loan we discussed."
53. On 30 July 2019 Mr Thompson sent an email to Mr Tapp in the following terms: I have now received approval to change the security as discussed, with part of the property to be transferred to yours and Kylie's name and the remainder released as security. When you have details of the Lots to be transferred, could you please let us know. We will then need to obtain a new valuation on this part of the property and prepare a new mortgage for you to sign.
54. Mr Tapp also made arrangements for a valuer to come out to the property. Mr Tapp's text message (on 31 July 2019) to Jan Barnett about the valuer stated that he would only be valuing "our side portion".
55. A valuation report of Mr Jeff Heal of IPN Valuers indicates that the valuer inspected the property on 1 August 2019. The report, which is stated to be for mortgage security purposes, contained a valuation of the various lots which the plaintiffs contend form the part of Myoora Jan Barnett agreed to transfer to them.
56. Ben Tapp initially contacted a solicitor in Tamworth (Mr Carr) about the matter, but later decided to instead seek the assistance of Ms Bernadette Lyden of Easy Conveyancing. He had an initial meeting with her on 25 September 2019. Mr Tapp deposed that at this meeting he showed her the aerial map of the property "and what land was to remain with Jan and what land was to transfer [sic] to us".
57. I note in passing that on 17 September 2019 Ben Tapp sent a text message to Jan Barnett which contained the suggestion that perhaps she "didn't agree with boundaries we had agreed on", and Jan Barnett responded with a text message that commenced with: All is well about the map.
58. It should also be noted that on 10 September 2019 an accountant retained by Jan Barnett (Mr Alexander) sent a letter to Mr Carr in the following terms: I confirm that this firm acts as accountant for Ms. Jan Elizabeth Barnett. Ms. Barnett has advised me it is her intention to transfer a portion of the property known as "Myoora" which is located at 526 Wimbourne Road Manilla NSW 2346 to her Daughter. This property passed to Ms. Barnett from her late mothers' [sic] estate. The property has been used for primary production purposes by the family since the 1950's. The property continues to be used for primary production purposes as at the date of this letter. Should you have any queries, please do not hesitate to contact me.
59. Ms Lyden made a typed file note in relation to her 25 September 2019 meeting with Mr Tapp (and the telephone call that preceded the meeting). However, it emerged in evidence that the file note was not made until May 2020, some 8 months after the event. So, too, was Ms Lyden's typed file note of the meeting held on 2 October 2019 when the front page of the standard form contract for sale was signed. More will be said later about the accuracy and reliability of those file notes.
60. The Easy Conveyancing file also contains four pages of handwritten file notes. These are undated but I think it can be inferred that two of the pages were likely made in relation to the initial meeting on 25 September 2019, and the other two pages were likely made in relation to the 2 October 2019 meeting, in each case contemporaneously with the relevant meeting.
61. It is sufficient to state at this point that the handwritten notes of the 25 September 2019 meeting indicate that Mr Tapp provided detailed instructions to Ms Lyden as to his understanding of the transaction.
62. On 26 September 2019 Mr Tapp sent an email to Ms Lyden in the following terms: Thanks for meeting yesterday I spoke to Jan and she is all good to go So if it's ok could we aim for that 4 o'clock Wednesday And as discussed could you have that [sic] sale documents for Jan to sign to transfer the lots I have emailed Dean at Regional Bank and let him know that it [sic] right to deal with yourself and give you what you require
63. Also on 26 September 2019, Mr Tapp received a copy of a valuation report from Mr Heal of IPN Valuers. The report contained an opinion that various lots forming part of Myoora had a value of $1.315 million.
64. By a series of emails sent later on 26 September 2019 and on 27 September 2019, arrangements were made between Mr Tapp and Ms Lyden for a meeting (that would include Jan Barnett) to occur at Noon on 2 October 2019. In one of Mr Tapp's emails on 27 September 2019 he confirmed that the bank had a mortgage over the whole property "and when it is split they we [sic] reregistor [sic] the mortgage just on my n Kylie portion".
65. On 27 September 2019 Ms Lyden sent an email to Dean Thompson (of Regional Australia Bank) in the following terms: Hello Dean, I understand that Ben has advised you that I now have carriage of the Intergenerational Transfer matter. Are you able to confirm? Do you have a mortgage over all of the property? Can you please advise the title particulars from the Titles, we have the Lot and DP's, but it appears they may all be Auto Consols; As you may be aware the titles will need to be produced at LRS to allow a Request to split the lots from the Auto Consols. Has this been requested from you as yet from the prior solicitor, Keven Carr's office and if so can you provide a copy of the request to you, if not I will advise to your reply what titles we will need to produce. I understand that the current loan will be paid out and a new loan at the time of the transfer to Kylie Barnett and Ben Tapp. Thanking you in anticipation. All parties have an appointment at my office next Wednesday, if you can provide a reply as soon as practical.
66. Mr Thompson responded by email on 30 September 2019 in the following terms: Yes Ben has advised me you are looking after the Intergenerational Transfer. I advise as follows: I understand we hold a mortgage over the whole property. I have attached a copy of our mortgage showing the title reference details. We haven't been requested to produce the titles at LRS, however we are happy to do so to allow the lots to be split. Please provide request when this is required. There is currently a loan in place to Jan, Ben & Kylie secured by the property. Our understanding is that upon the transfer of titles to Ben & Kylie, we will register a mortgage on their portion of the property which will become the security for the loan and we will discharge our mortgage on Jan's portion. We further advise we have been approached by Ben & Kylie for additional finance in their joint names to initially be secured by a guarantee from Jan, supported by the existing mortgage. On completion of the portion being transferred to Ben & Kylie, we will also release Jan from the Guarantee and discharge the mortgage over her portion of the property. Please let me know if you require any other details.
67. Also on 30 September 2019 Mr Tapp sent an email to Ms Lyden that attached a letter from an accountant, Mr Neill Bonnett, concerning the continued use of the property for primary production. The letter was evidently intended to assist in obtaining a stamp duty exemption in relation to the proposed transfer of land (see Duties Act 1997 (NSW), s 274(1)). Ms Lyden and Mr Bonnett exchanged emails on that subject on 2 October 2019. Mr Bonnett provided additional financial information about Mr Tapp's cattle farming and horse breeding business conducted on Myoora.
68. On 2 October 2019 the plaintiffs and the defendant attended Ms Lyden's office as arranged. There is no real doubt as to what documents were signed by each of the parties in the course of the meeting, but the parties are in great dispute as to what was said at the meeting about the documents and about the transaction more generally. In particular, there is dispute about whether words were spoken by Ms Lyden to the effect that the signing of the front page of the standard form contract did not contractually bind the parties.
69. Ben Tapp deposed: I arranged a second meeting at Bernadette's office on 2 October 2019. Kylie and I drove into town together. We reminded Jan of the appointment. When we got to Bernadette's office, Jan was already waiting there. When we got into the office Bernadette already had prepared a contract for the sale of the property and various documents relating to stamp duty. Bernadette talked Kylie, Jan and I through the division of the property and specifically the lot numbers referred to on the contract. Bernadette had an aerial photograph of the property and we talked at length as to how the lots were to be divided. There was a particular issue about the location of a power pole that took up a lot of time. Bernadette bought [sic] up some other maps on her computer and we investigated the location of the power pole. Bernadette used her computer to zoom in and we could identify the precise location of the power pole. Ultimately, after going back and forth about the power pole, we had a conversation as follows: Jan: The contract is fine as it is, the power pole doesn't cause me any problems. Bernadette: All good to sign up then? Ben: Yep. Jan: I suppose so. Myself, Kylie and Jan then all signed the contract and the duties document in Bernadette's office in front of Bernadette. Bernadette took some identification documents from Kylie and I. … After that, Bernadette said: Well that's it - it's all done. The bank will need to arrange for Jan to come off the mortgage, but once that's done we can settle. I said: Well that's good. That's the end of a long saga. Jan nodded. Kylie said: Thanks mum. I don't want to be rude but I've got to do a quick job down at the bank. I'll be back in 10 minutes. Kylie then left. I walked out a few minutes later with Jan. Jan and I said goodbye to one another. Jan seemed a little tense, but gave me a congratulatory hug. Amongst other things, Jan Barnett denied that there were any hugs.
70. Kylie Barnett deposed: Ben and I drove into the appointment together with our youngest child. When we got to the office of Easy Conveyancing, Jan was already waiting there. The conveyancer I met, Bernadette Lyden already had prepared a contract for the sale of the lots…and various documents relating to stamp duty. We all talked through the division of the property with Bernadette and compared the lot numbers with an aerial photograph that Bernadette had on her computer. There was an issue about the location of a power pole that took up a lot of time. After a bit of back and forward and reference to the maps, Jan said: The contract is fine as it is, the power pole doesn't cause me any problems. Then we all signed the contract in Bernadette's office in front of Bernadette… Ben and a [sic] I then signed documents relating to stamp duty and Bernadette took copies of our identification… By the time we signed all the documents, our son was getting a bit agitated and I had to go to the bank to do a job, so I left the appointment with our son and left Ben, Jan and Bernadette together.
71. Jan Barnett deposed: On 2 October 2019 Ben Tapp, Kylie and myself attended the offices of Bernadette Lyden as part of the continued exploration as to whether some agreement might be reached. I have had exhibited to me a document produced by Bernadette Lyden under Subpoena and being a file note of that meeting…That document accurately reflects what was said by Bernadette Lyden at that meeting. At that time I was aware that Ben Tapp had had discussions with a Bank with a view to obtaining finance for the potential purchase of part of "Myoora" by himself and Kylie. I agree that at this meeting the front page of a Contract for Sale of Land was signed by myself, Ben Tapp and Kylie but was undated. The file note referred to above is the typed file note that was prepared by Ms Lyden in May 2020. The note includes the following: I advised that we would arrange for a draft front page of contact and draft transfer to be signed to assist with the bank finance process and we have found that most banks now like to see a signed contract between vendor and purchaser especially where the transaction involves a family transfer and not at arms-length transaction. I went on to advise that just by signing did not bind either party to the transaction as it was solely for the bank to obtain finance approval. Also had OSR applications signed and dated as all parties present at meeting and advised I would hold pending further instructions.
72. Jan Barnett further deposed in relation to the 2 October 2019 meeting that: 1. "Once the meeting commenced I indicated that I did not agree with the details being described by Ben Tapp of the purported agreement"; 2. "…and the sequence of events occurred as outlined in the file note of Bernadette Lyden…"; 3. Bernadette Lyden said words to the effect of "I assure you that the front page of a Contract for Sale does not constitute a sale Contract. The Bank requires the front page for consideration of the loan"; and 4. Bernadette Lyden said further words to the effect of "It has no date, therefore no Contract".
73. Ms Lyden deposed as follows in relation to the 2 October 2019 meeting: During the meeting Ben did most of the talking and described to me generally that the parties were interested in looking at whether land currently belonging to Jan might be transferred to Ben and Kylie as an intergenerational transfer so that stamp duty would not be required to be paid on that transfer. I prepared a front page of a Contract and Applications for Exemption from stamp duty due to an intergenerational transfer. It was my understanding from emails from the Bank and advice from the clients, at the time of this meeting that finance still had not been approved by the Regional Australia Bank for Ben and Kylie to purchase any land from Jan and that the Bank's approval of any finance would be subject to a Valuation yet to be undertaken. It it [sic] was discussed at the meeting that Jan wanted to obtain advice and that Jan still wished to consult her Accountant as to the affect any such transfer would have on her pension entitlement and retirement. She had informed me during the meeting, the exact words of which I do not recall, that she was suffering from some ill health and was concerned to ensure that any transfer of land did not affect her financial security. … Although I do not recall the exact words used, there was a discussion at the meeting about what lots of land might potentially be acquired by Ben and Kylie and how those lots related to the location of Jan's house, bore access and power poles, as these matters were all potential obstacles to any final agreement being reached. I left the room and completed the draft front page of the Contract with the title particulars as discussed with all parties. As mentioned previously, the title particulars were obtained from the plans, rate notice etc. It is my practice at this early stage to have all necessary documents signed at one sitting, subject to further instructions regarding those documents and finance approval. When I returned to the room, I said words to the effect of: "I will get you to sign a draft front page of a Contract and draft Transfer as that will assist with the bank finance process. We have found that most banks like to see a signed Contract between a Vendor and a Purchaser particularly where the transaction involves a family transfer and not an arm's length transaction." I further said words to the effect of: "Just by signing these documents will not bind either party to the transaction as it is solely for the Bank to obtain finance approval." I further said words to the effect of: "The OSR Application for Exemption form requires the price of the property being transferred. Nothing can progress until we have a figure from the Valuer and Jan will then need to discuss that value and the sale with her Accountant. … Although I cannot recall the exact words used, I recall that at the conclusion of the meeting, it was agreed that the valuation of the land would be obtained and that Jan would then seek financial advice before any further steps were taken in the conveyance of any land.
74. The front page of the standard form of contract for sale, which was signed by Jan Barnett as vendor and Ben Tapp and Kylie Barnett as purchaser, contained details of the various lots comprising part of Myoora that were the subject of the sale. The price was specified as $1.00. The date for completion was stated to be "42 days after the date of this contract". The contract was not specifically dated, but it is provided that if the date is not stated, then the contract date is the date the contract was made.
75. Aside from the signed form of contract for sale, Ben Tapp and Kylie Barnett signed forms containing declarations as transferees for the purposes of seeking exemption from stamp duty in relation to the transfer of land. The space on the forms for the estimated value of the property to be transferred was left blank. I note that in cross-examination Ms Lyden agreed that Mr Tapp had said the value was about $1.3 million, but she said that given that there was a valuation being done "we were waiting on the valuation amount to come back". The valuation report received by Mr Tapp on 26 September 2019 was not in a final form addressed by the valuer to the bank. However, on 3 October 2019 Mr Tapp sent an email to Ms Lyden stating that the valuation "is 1.3 mil". In fact, the report he had received stated that the value was $1.315 million.
76. Shortly after receiving Ben Tapp's email, Ms Lyden sent an email to Dean Thompson in the following terms: Thanks Dean, all clients came in yesterday. In the application for Intergenerational Transfer exemption it is required to put a [sic] estimated value and Ben tells me a valuation was $1.3m. Is that correct? I will write to you today to arrange to have the titles produced to have one of the Auto Consols separated. It seems that a copy of the signed contract was not sent as an attachment to the email.
77. Later on 3 October 2019 Mr Thompson responded by email in the following terms: Thanks Bernadette. We haven't received the valuation yet. I understand the valuer has completed the inspection, however is awaiting confirmation of the Lots being transferred to Ben & Kylie. Please see attached email form [sic] the valuer. Are you able to assist him with the information he requires? Thanks very much. The attached email from the valuer was by oversight not produced by Easy Conveyancing on subpoena, and is not in evidence.
78. On 4 October 2019 Ms Lyden sent an email to Jan Barnett in the following terms: Hi Jan, email received from Ben with a value of $1.3m. Did he discuss this figure with you? I checked with the bank and they advise they do not yet have the valuation back and I have to provide them with the Lots being transferred. Do you wish to confirm with your accountant?
79. I note in passing that Jan Barnett deposed that she went to Ms Lyden's office and spoke to her again on about 3 or 4 October 2019 about the contract for sale. Ms Barnett deposed that Ms Lyden told her that: A front page is not a sale Contract, it is only a front page for the Bank. Ms Lyden made no reference in her affidavit to any conversation with Jan Barnett around that time. I am not satisfied that such a conversation occurred.
80. It appears from documents from the Easy Conveyancing file that between 4 October 2019 and 14 October 2019 Ms Lyden communicated with Regional Australia Bank and IPN Valuers concerning the titles that were to be transferred. It seems that by 11 October 2019 a list of the lots to be transferred had been provided to the valuer, although an erroneous omission of two of the titles (Lots 1 and 2 in DP 1122607) from an email sent to the bank on 4 October 2019 appears to have caused some temporary confusion. Nevertheless, it may be inferred, from the valuation report that ultimately issued, that the list of lots provided to the valuer accorded with the lots referred to on the signed front page of the contract for sale.
81. On 11 October 2019 Ms Lyden sent an email to Ben Tapp, copied to Jan Barnett, in the following terms: Hi Ben, update for you both: - valuer to provide valuation to bank, the valuer has the list of lots transferring (same copy that you have) I have emailed Dean at Regional Australia Bank to request the title be sent to Land Registry Services to split up into the separate titles I spoke to Jan who was following up with her Accountant and your estimated $1.3m value
82. On 23 October 2019 Dean Thompson sent an email to Ms Lyden stating that the value of the property is $1,315,000. A copy of the valuation report was attached (but again, by oversight, was not produced by Easy Conveyancing on subpoena). In any event, Ms Lyden forwarded Mr Thompson's email to Jan Barnett and Ben Tapp, and in her covering email stated that she "will wait until you both contact me to confirm progression".
83. On 24 October 2019 Ben Tapp sent an email to Ms Lyden in response in the following terms: Yes I have received this The price on the transfer I agree However I'm not sure on what Jan and her account [sic] have come up with I would [sic] thought be a family transfer and no actual money being transferred one would think there should be no capital gains tax
84. Also on 24 October 2019 Mr Thompson and Ms Lyden exchanged emails in relation to how the matter would proceed using the PEXA system.
85. On 29 October 2019 Ben Tapp sent an email to Ms Lyden in the following terms: Morning Could you give me a call and give me an update on where the transfer is up to Has the bank sent the titles? If so what is the next step etc Also if did you get a reply from Jan about the valuation and if there was capital gains implications? Thanks Ben
86. A note on the Easy Conveyancing file indicates that later on 29 October 2019 Ms Lyden had a telephone conversation with Ben Tapp in which he expressed annoyance at Jan Barnett "stalling". It appears that Ms Lyden said that she herself was ready "once I get go ahead", that she was "waiting on Jan to advise re accountant", and that he (Ben) needs to discuss that with her. Mr Tapp sent a text message to Jan Barnett on 30 October 2019 seeking to find out from her "where things are at".
87. On 3 November 2019 Jan Barnett sent an email to Ms Lyden in the following terms: Dear Bernadette Refer to email 23/10/19 I wish to inform you to take no further action in this matter until you have received my further instructions. I write now to take no further action in this matter and not to exchange contracts as I have reviewed my decision as to the sale and have determined not to proceed at this time. Please give me your invoice to date and close the file until or if otherwise instructed.
88. On 4 November 2019 Ms Lyden sent an email in response which attached an invoice and concluded with: Just let me know if your circumstances change.
89. Later on 4 November 2019 Ben Tapp sent an email to Ms Lyden in the following terms: Hi Bernadette How are things going with getting the 2 titles have the bank sent the titles and is everything moving in the right direction? Also is there an estimate on when the exchange will happen? Thanks
90. On 5 November 2019 Ms Lyden responded by email in the following terms: Hi Ben, I have had an email from Jan advising she was not proceeding with the Transfer. I assumed you would be aware. Please discuss with Jan direct and advise me if circumstances change. However, it appears that, for a short time, Ms Lyden continued to provide advice to Ben Tapp on the question of stamp duty.
91. Ben Tapp deposed that after he found out that Jan Barnett was not proceeding, he and Kylie met with her at the bottom house. He deposed that in the course of the discussion Jan Barnett said that she was not pulling out but just needed more time. Kylie Barnett gave evidence in similar terms. Jan Barnett denied that she said "I am not pulling out". She deposed that Ben Tapp was loud and abusive towards her. That is denied by both Ben Tapp and Kylie Barnett.
92. Within a short time both sides had retained their own solicitors. The plaintiffs' solicitors pressed for completion of the contract for sale signed on 2 October 2019. The defendant's solicitors disputed that there was a binding contract. Both solicitors made contact with Ms Lyden about the matter. On 23 January 2020 the defendant served a Notice to Terminate Tenancy Agreement upon the plaintiffs. The notice purported to terminate a periodic tenancy, without a reason, by giving 90 days' notice.
93. The plaintiffs moved off Myoora on 16 April 2020 to a property they purchased at Nemingha, which is a suburb on the outskirts of Tamworth, about 40km from Myoora. By that time, the proceedings had already been commenced.

Witnesses

1. As noted earlier, the assessment of the credibility and reliability of the witnesses who gave evidence is important in this case. The evidence given by Mr Tapp, Kylie Barnett and Jan Barnett is plainly central, and the evidence given by Ms Lyden in relation to the meeting on 2 October 2019 is also important on the question whether a binding contract for sale was entered into on that day. In respect of the first three of those witnesses I have of course assessed their evidence bearing in mind their personal interests in the outcome of the litigation, and where possible in the light of any contemporaneous documents that are likely to be accurate. Ms Lyden, who acted for all the parties in relation to the transaction, has no obvious personal interest in the outcome of the litigation. A person in her position would commonly be able to give evidence with the benefit of detailed notes made during or immediately after an important meeting with clients. Unfortunately, this is not the case here in relation to the 2 October 2019 meeting. The two pages that apparently contain handwritten notes made by Ms Lyden on that occasion shed little light upon the content of the discussion that took place. Other notes made by Ms Lyden in relation to the meeting were created many months later from her recollection. For reasons referred to later, I do not think that these notes provide a reliable guide to either what was said during the meeting, or generally how the meeting proceeded.
2. I formed a reasonably favourable impression of Mr Tapp as a witness. He generally gave his evidence in a direct manner and seemed to be making genuine efforts to attend to the questions asked of him. Mr Tapp appeared to have a reasonably good recollection of events, both as to what occurred and when they occurred. Further, some parts of his testimony that are disputed gain support from documents that are likely to be accurate. Overall, I assessed Mr Tapp as an essentially honest and reasonably accurate witness.
3. I formed a similarly favourable impression of Kylie Barnett as a witness, although I do not think that her recollection of the detail of events was as good as Mr Tapp's. However, she did appear to have a good recollection of the occasion when the sum of $180,000 was borrowed. I found her evidence on that matter to be cogent and plausible. I assessed Kylie Barnett as an essentially honest witness who gave evidence about as accurately as her recollection of the events would allow.
4. I formed a less favourable impression of Jan Barnett as a witness. Her evidence about the $180,000 was unconvincing, including the suggestion that she lent the money to Kylie but not to Mr Tapp. Jan Barnett seemed most reluctant to accept that in early 2018, after Clare Robinson had been diagnosed with cancer, Clare spoke about leaving Myoora to her. However, text messages suggest that she was involved in discussions concerning Clare making a new will. Jan Barnett's denial that there were discussions in about mid-July 2019 as to what lots would be transferred to Mr Tapp and Kylie Barnett was also unconvincing. Again, text messages in late-July 2019 show that Jan Barnett was informed by Mr Tapp that a valuer was coming out to value "our side portion", and Jan Barnett was agreeable to that. The text messages also show that arrangements were then being made to retain a conveyancer. Jan Barnett later accepted that she had spoken about the transfer of certain lots, although she maintained that no agreement had been reached. The above matters in particular led me to conclude that Jan Barnett's evidence needed to be treated with caution. I am not able to regard her evidence as being generally accurate or reliable, and I would not be prepared to accept her evidence on any matter in contention unless the evidence was corroborated by reliable evidence from another source. I generally prefer the evidence of Mr Tapp and Kylie Barnett to that of Jan Barnett where the evidence is in conflict.
5. Ms Lyden was challenged in cross-examination about various aspects of her practice, the creation of file notes, and the production of documents pursuant to subpoena. Ms Lyden made a number of concessions to the effect that she made errors or overlooked certain matters. I gained the impression that Ms Lyden was attempting to truthfully answer the questions put to her, but her actual recollection of the detail of events did not appear to be good. Her evidence concerning the circumstances in which her two typed file notes came into existence, many months after the events they purport to record, and, it seems, after she had received a subpoena to produce documents, was troubling. In my view it significantly undermined the extent to which the file notes could be considered reliable. To the extent that her testimony was based on those file notes, the evidence has to be assessed with that limitation in mind. One other aspect of Ms Lyden's evidence caused me some concern. That was her answer to the effect that she considered it "good practice" to send to a bank a signed contract which she considered to be only a draft, without warning the bank that the contract was not binding.
6. The only other witness to be cross-examined was Ms Gai Robinson, who was called in the plaintiffs' case. She is Jan Barnett's sister. Ms Robinson gave evidence about a conversation she had with her sister on 26 November 2019. She deposed that Jan Barnett told her about an arrangement she had with the plaintiffs to give them half of Myoora, and said that she had changed her mind so was not going through with it. Ms Robinson was in the witness box for a relatively short period but was tested about her version of the event. Ms Robinson gave her evidence in a clear and straight-forward fashion, and I gained the impression that she was giving truthful evidence. To the extent that Ms Robinson's evidence conflicts with the evidence of Jan Barnett, I prefer Ms Robinson's evidence.

Factual findings as to principal matters in dispute

1. The first matter concerns the $180,000 that was paid into the account of Mr Tapp's solicitors on 6 April 2017. As will be apparent from the preceding section, I accept the evidence of Kylie Barnett on this issue in preference to the evidence of Jan Barnett. I find that Kylie Barnett asked her mother whether she could borrow $180,000 from her to help "pay out Ben's divorce", and Jan Barnett said that she didn't have $180,000 to give her. I note that Jan Barnett accepted in cross-examination that she said she "had no cash to assist". I further find that Kylie Barnett then spoke to Clare Robinson, and arrangements were then made for her to lend the money. I find that the loan was effected by an over-the-counter transfer of funds from an account of Clare's into an account of Jan Barnett's, who then made an electronic transfer of the money into the account of the solicitors. Jan Barnett was acting as her mother's agent in making that electronic transfer. I note that Jan Barnett did not refute the suggestion (contained in Kylie Barnett's affidavit) that the transfer of money into her account was effected at the Post Office in Manilla. I am unable to accept Jan Barnett's evidence that the $180,000 was given to her by her mother, leaving it up to her to decide whether to make a loan to Kylie. I should add that I accept Kylie Barnett's evidence that the loan from her grandmother was later forgiven. Finally, I accept Mr Tapp's denial that Jan Barnett ever suggested to him that the $180,000 be repaid, whether to her, or otherwise.
2. It is next necessary to consider the evidence concerning the events of early 2018. I generally accept the evidence given by Mr Tapp and Kylie Barnett about the discussions on about 26 or 27 January 2018. In particular, I accept that after Clare's cancer diagnosis, Jan Barnett asked the couple to stay at Myoora and help look after Clare, and not proceed to buy the property near Tamworth. That a conversation to that effect occurred is to some extent supported by a text message sent by Mr Tapp to the agent involved with the Tamworth property. I am also prepared to accept that in this discussion Jan Barnett said words to the effect of "we will make some arrangements for Myoora for you two", and that mention was made of giving the couple half of the property.
3. It is clear that shortly thereafter there were discussions, involving Clare, about her making a new will. Text messages between Mr Tapp and Jan Barnett refer to a draft will that had been prepared. A new will was in fact executed on 13 February 2018. I largely accept the evidence of Mr Tapp and Kylie Barnett that is set out above at [32], [33] and [35] despite some minor differences between the accounts. I therefore accept that in the course of discussions in about late-January/early-February 2018, Jan Barnett told the couple that if they could provide the money to enable her to pay out her siblings, she would transfer half of Myoora to them. The plaintiffs expressed their agreement to the proposal. At the time of these discussions it was contemplated that Clare would make a new will which provided for Myoora to go to Jan, and would make provision for other gifts to her siblings, and, as mentioned, it was not long before a will of that character was in fact made. Whilst Jan Barnett was not specific as to what "half of Myoora" would be transferred in those circumstances, she nonetheless gave a clear promise to that effect. I do not accept Jan Barnett's denials in relation to these conversations. In particular, her denial that what was intended to go into her mother's will "was never discussed with the Plaintiffs at that time" is in my opinion false.
4. However, I do not think that the promise made by Jan Barnett was made conditional upon Mr Tapp and Kylie Barnett agreeing to share all the cattle on Myoora with her. The evidence in relation to the cattle on Myoora is somewhat unclear, but Mr Tapp agreed in cross-examination that he had given Jan Barnett half of the cattle at some time in 2017. That is consistent with Jan Barnett's evidence that in early-2018 she already owned half of the cattle on Myoora. It seems that in practice this meant that there was a sharing of the cattle, such that when cattle were sold, half were sold by Mr Tapp and Kylie Barnett and half were sold by Jan Barnett. Mr Tapp went on to say that the giving of half the cattle in 2017 occurred "knowing that we were going to be involved in the property". That may be so, but this understanding is more likely to have come from the discussions he had with Clare about acquiring the "hill paddock across the road". Jan Barnett may have mentioned the sharing of the cattle in the discussions that took place in late-January and early-February 2018, as this may have been regarded as relevant to the promise that was made, but I am not satisfied that any condition was imposed in relation to the cattle. To this extent, I do not accept the accounts given by Mr Tapp and Kylie Barnett.
5. There is no dispute that Mr Tapp paid the sum of $150,000 in relation to the settlement that was reached at the mediation in March 2018. The issue concerns the terms upon which or the circumstances in which the payment was made. Having rejected her evidence in relation to the $180,000, I must reject Jan Barnett's characterisation of the $150,000 payment as a partial repayment of the $180,000 loan she says she made. I prefer the evidence of Mr Tapp to the effect that he agreed to Jan Barnett's suggestion that he pay the $150,000, with that sum to come off the amount that had been agreed he and Kylie would pay so Jan Barnett could pay out her siblings (and thus inherit Myoora). I accept that there was a conversation to the effect of that which is set out above at [40]. That evidence of Mr Tapp seems to me to be plausible, and consistent with the tenor of the discussions that occurred earlier in 2018.
6. The next matter concerns the steps taken following the death of Clare Robinson to satisfy the conditions of the gift of Myoora to Jan Barnett.
7. By the terms of the will dated 13 February 2018, as amended by the codicil dated 15 March 2018, Myoora was given to Jan Barnett subject to a condition that she make payments of $175,000 to Gai Robinson and $175,000 to the children of the late Wendy Farquhar within six months of Clare's death. These payments were ultimately made by means of a $340,000 loan from Regional Australia Bank, and a contribution of about $10,000 by Mr Tapp which came from the proceeds of the sale of some cattle. The money from Regional Australia Bank was borrowed by Jan Barnett, Mr Tapp and Kylie Barnett, and secured by a mortgage over Myoora. The loan appears to be for a 20 year term, with interest only payable in the first 3 years. It is not in dispute that Mr Tapp and Kylie Barnett have been meeting half of the payments for the loan since its inception.
8. I accept Mr Tapp's evidence that after Clare's death he had a conversation with Jan Barnett in which she said words to the effect that "if we borrow the money together now, I'll put Myoora up as the security for the mortgage, then when you take your half of Myoora, you can just take over the whole of the mortgage", and he agreed to that proposal. The proposal is broadly consistent with the promise Jan Barnett had made in early 2018, noting again that Jan Barnett was not specific about what "half of Myoora" would be taken. The proposal is also consistent with the statements earlier made by Jan Barnett to the effect that she was "too old to get a loan". I prefer Mr Tapp's evidence to the evidence of Jan Barnett about sharing a bank loan. Jan Barnett suggests that the loan was to be secured by "two lots on which the two houses were located". Jan Barnett gave evidence to the effect that the discussion related to a subdivision proposal which would involve Kylie Barnett becoming the owner of a lot which had a house on it. There is evidence that there was at one stage a proposal of that character, but I am satisfied that this proposal was discussed at a much earlier time, prior to 2018. Further, the loan that was in fact made was secured over all of Myoora, not merely two of the lots.
9. It is clear that after Clare's death, Mr Tapp and Jan Barnett had a discussion with Mr Biffin, solicitor, about a transfer of land. I do not accept that the evidence given in cross-examination by Jan Barnett to the effect that the discussion concerned the subdivision proposal. Again, I prefer the evidence of Mr Tapp that the discussion concerned a transfer of half of Myoora to Kylie Barnett and himself. I find that Mr Biffin recommended that there be no transfer until 12 months had elapsed since Clare's death.
10. Jan Barnett said in cross-examination that she did not have enough cash to make the payments to Gai Robinson and the children of Wendy Farquhar. She denied that the bank would not lend her any money, and further denied that she needed the help of Mr Tapp and Kylie Barnett to obtain the loan from Regional Australia Bank. If that is so, the explanation for their participation as borrowers must be found elsewhere. In my view, the clear likelihood is that their participation occurred as a result of the promise made to them by Jan Barnett in early-2018, and in accordance with Jan Barnett's later proposal as to how to fund the payments she was required to make in order to inherit Myoora. I do not think that they would have agreed to be borrowers, and thereafter meet half of the loan repayments, had they not received the clear assurance from Jan Barnett that she would transfer half of Myoora to them. A similar point can be made about Mr Tapp's further payment of about $10,000. It should also be borne in mind that Mr Tapp had already made a payment of $150,000 that Jan Barnett said would be "part of your buy in for half of Myoora".
11. I am satisfied that in about mid-July 2019, as the anniversary of Clare's death approached, there were discussions about what part of Myoora would be transferred. I broadly accept the evidence of Mr Tapp and Kylie Barnett as set out above at [52] and [53] about a meeting during which, by reference to an aerial map, agreement was reached about which parts of Myoora were to be transferred. It was part of the agreement that Mr Tapp would make arrangements for a lawyer to be retained to effect the transfer. That such an agreement was reached is supported by the subsequent conduct of the parties.
12. I reject Jan Barnett's version of what occurred in the meeting, in particular her evidence to the effect that Mr Tapp displayed a dominating attitude and made demands (including that he wanted more than half of the property) that were strongly disagreed with. I further reject her evidence to the effect that she "never agreed to any plan that involved transfer of land to Ben Tapp".
13. Not long after the meeting at which the agreement was reached about the portion of Myoora to be transferred, Mr Tapp spoke to Mr Biffin, who told him that his firm's instructions would be limited to finalisation of Clare Robinson's estate. Mr Biffin's email to Mr Tapp of 22 July 2019 refers to whether Mr Tapp, Kylie Barnett and Jan Barnett "are still willing to proceed with" a further conveyancing transaction for part of Myoora, and stated that if that was so, other solicitors could be contacted. It appears from a text message sent by Mr Tapp to Jan Barnett on about 24 July 2019 that he had made an appointment to see a "conveyance bloke" (likely to be Mr Kevin Carr, solicitor) and had arranged for a valuer to attend the property. The message stated that the valuer was only going to value "our side portion". Jan Barnett's response indicated her consent to, or at least acceptance of, these things.
14. Not long after the mid-July meeting Mr Tapp was also in contact with Mr Thompson of Regional Australia Bank about transferring the existing loan and mortgage to the lots that were to be transferred. Something was sought to be made of the reference, in Mr Tapp's email to Mr Thompson of 26 July 2019, to "the subdivision and transfer of loan we discussed". Mr Tapp explained in cross-examination that he used the word subdivision in the sense of a subdivision of the whole property. I accept that explanation as true. Mr Tapp was not referring to a subdivision proposal of the type that had been discussed at an earlier stage. By 30 July 2019 Mr Tapp had been informed by Mr Thompson that approval had been given for the change in security, although the bank would need to obtain a new valuation of the part of Myoora to be transferred.
15. It appears from a valuation report of IPN Valuers that a valuer inspected the property on 1 August 2019. The report shows that the valuer was asked to value a part of Myoora consisting of various lots, presumably identified for the valuer by Mr Tapp. The lots the subject of the valuation accord with those later identified on the contract that was signed on 2 October 2019. It is apparent that the valuation was undertaken on the instructions of Mr Tapp "for an intending Lender subject to approval by IPN Valuers". It seems to have been envisaged that IPN Valuers might later give its approval to the Lender being able to rely upon the valuation for mortgage security purposes.
16. Another indication that an agreement had been reached about the portion of Myoora to be transferred is found in the exchange of text messages on 17 September 2019. Mr Tapp's message to Jan Barnett referred to the "conveyance woman" (likely to be a colleague of Mr Carr) saying that "you didn't agree with boundaries we had agreed on". Jan Barnett's message in reply commenced with: All is well about the map.
17. On 20 September 2019 an accountant retained by Jan Barnett sent a letter to Mr Carr which included the following: Ms. Barnett has advised me it is her intention to transfer a portion of the property known as "Myoora" which is located at 526 Wimbourne Road Manilla NSW 2346 to her Daughter. … The property continues to be used for primary production purposes as at the date of this letter.
18. Jan Barnett deposed that she had been in discussions with the accountant for some months concerning the possibility of transferring part of Myoora to Kylie Barnett. Jan Barnett maintained that she had never agreed to transfer any part of the property to Mr Tapp. It is true that the accountant's letter refers only to a transfer to Jan Barnett's daughter. However, I do not think that much significance can be given to this in circumstances where it seems likely that the letter was prepared in connection with a question of stamp duty; in particular, s 274 of the Duties Act which is concerned with transfers between family members. I consider that the letter is further evidence that the parties, including Jan Barnett, were at that time proceeding towards effecting a transfer of the part of Myoora that had been agreed upon in about mid-July 2019.
19. However, it seems that Mr Tapp became dissatisfied with the pace at which Mr Carr's firm was proceeding. Accordingly, he telephoned Ms Lyden of Easy Conveyancing in Tamworth on 25 September 2019. He had a meeting with Ms Lyden later that day.
20. It is apparent from Ms Lyden's handwritten file note made on that occasion that Mr Tapp gave her the title details of 9 lots. These are the lots that were the subject of the valuation of IPN Valuers and which appear on the form of contract later signed. Reference is made in the note to an "intergenerational transfer", and the fact that Jan Barnett was the current owner of the property. The note includes: No funds only transfer.
21. Amongst other things, the note refers to Mr Thompson of Regional Australia Bank, who was "to do mortgage with Ben & Kylie only". There was also reference to a "letter for intergenerational transfer from Accountant - Mr Neill Bonnett".
22. It seems that at the meeting on 25 September 2019 Mr Tapp asked Ms Lyden to prepare documents for signing in respect of the transfer. His email to Ms Lyden on 26 September 2019 refers to a discussion about "sale documents for Jan to sign to transfer the lots". Ms Lyden conceded in cross-examination that Mr Tapp wanted to have the documents finalised and signed at the subsequent meeting.
23. Mr Tapp received the IPN Valuers report concerning the lots to be transferred on 26 September 2019.
24. On 27 September 2019 Ms Lyden sent an email to Mr Thompson. He responded on 30 September 2019. Mr Thompson confirmed that upon the transfer of the titles to Ben and Kylie the bank would register a mortgage on their portion, and discharge the mortgage on Jan's portion. Also on 30 September 2019 Ms Lyden obtained the stamp duty letter from Mr Bonnett.
25. Arrangements had been made for Mr Tapp, Kylie Barnett and Jan Barnett to attend Ms Lyden's office at Noon on 2 October 2019. There are various conflicts between the accounts of the meeting given by the attendees. Some of them are not of critical importance, such as the question whether Ms Lyden had prepared the form of contract prior to the meeting. The preparation of documents for signature seems to have been part of the instructions given by Mr Tapp, but in any case it is clear that a form of contract that identifies the 9 lots to be transferred was presented by Ms Lyden for signing by Mr Tapp, Kylie Barnett and Jan Barnett, and each of them proceeded to sign the document.
26. On its face the form of contract records the matters essential for a binding contract for the sale of land. The parties to the sale, the land the subject of the sale, and the price, were all identified. Contrary to the evidence given by Ms Lyden it was not necessary for the document to be dated in order that a binding contract come into existence. The signing of such a document by the parties would ordinarily give rise to a binding contract on the terms of the document together with any implied terms or warranties (for example, pursuant to s 60 of the Conveyancing Act 1919 (NSW) or the Conveyancing (Sale of Land) Regulation 2017). That result is put into question by the evidence of Jan Barnett and Ms Lyden.
27. Jan Barnett's evidence about the meeting is summarised above at [76]-[77]. It contains little in the way of an account of the actual words used, although she deposes that Ms Lyden said: I assure you that the front page of a Contract for Sale does not constitute a sale Contract. The Bank requires the front page for consideration of the loan. And also: It has no date, therefore no Contract. Otherwise, Jan Barnett essentially relied upon the content of Ms Lyden's typed file note.
28. Ms Lyden's version of events as set out in her affidavit is referred to above at [78]. It is apparent that this account is based at least in part upon the contents of the typed file note which, as already mentioned, was not prepared until May 2020. There are a number of aspects of Ms Lyden's account that I find difficult to accept. These include: 1. the suggestion that Mr Tapp said the parties were interested in looking at whether land currently belonging to Jan might be transferred to Kylie and himself as an intergenerational transfer. That seems unlikely given that Mr Tapp had given instructions to prepare documents for signing; 2. the statement that she understood that finance had not been approved for the purchase of land. The transaction described to her was a transfer of certain lots for nominal consideration. That is reflected in her handwritten note of "No funds only transfer", and the inclusion of $1.00 as the price on the form of contract she prepared. Mr Thompson's email of 30 September 2019 refers to the possibility of additional finance, but the evidence does not suggest that the transaction was conditional upon any such finance being obtained, and Ms Lyden does not mention it in her later communications with Mr Thompson. Those communications included reference to the topic of settling the transaction through PEXA; 3. the statement that she said to those present that she would get them to sign a draft front page of a Contract and a draft Transfer to assist with the bank finance process. No Transfer document seems to have been prepared or signed, the contract itself was not marked as a draft, and again the transaction does not seem to have been treated as conditional upon the obtaining of any finance. Moreover, there is no clear evidence that the signed contract was even sent to the bank; and 4. the statement that she said that signing the documents will not bind either party to the transaction as they were solely for the bank to obtain finance approval. In addition to the matters I have referred to above, it seems unlikely that a signed contract would be provided to a bank to assist in obtaining finance if it was believed that the contract was not binding.
29. Ultimately, I find myself unable to accept Ms Lyden's evidence that she referred to the front page of the contract as a "draft", and said that it was to "assist with the bank finance process". Ms Lyden did not mark the contract as a draft, and she conceded in cross-examination that after the parties had signed there was nothing else that needed to be done with the document apart from dating it. Further, and as mentioned already, the transaction as presented to Ms Lyden was not conditional upon the obtaining of bank finance. At most, there was to be a re-arrangement of the existing finance such that the portion of Myoora to be retained by Jan Barnett would be freed of the mortgage. Neither do I accept Ms Lyden's evidence that she told those present that signing "will not bind either party to the transaction as it is solely for the Bank to obtain finance approval". In addition to the abovementioned matters, I note that the parties left the meeting with copies of the documents, and Ms Lyden appears to have thereafter taken steps consistent with the transaction proceeding towards settlement. For example, on 3 October 2019, the day after the meeting, Ms Lyden sent an email to Mr Thompson in relation to the completion of the application for stamp duty exemption, and reference was made to the production of title documents. There were further communications with the bank about the titles that were to be transferred, and as late as 24 October 2019 the communications concerned how the matter would proceed using the PEXA system. As already noted, there is no clear evidence that the signed contract was actually sent to the bank. Whether that occurred or not, at no stage did Ms Lyden indicate to the bank that the contract was not binding. Her communications with the bank after 2 October 2019 make no reference to the provision of any finance.
30. A file note made by the defendant's solicitor of a conversation he had with Ms Lyden on 27 November 2019 suggests that she may have told him that the contract was for the purposes of bank finance. However, in circumstances where the transaction was not conditional upon the obtaining of finance, I cannot accept Ms Lyden's evidence to the effect that this case is an example of one where a signed contract is submitted to the bank for that purpose even though the contract is thought not to be binding. Ms Lyden's evidence about such a practice was, as I have already said, an aspect of her evidence that was concerning. It is not clear why Ms Lyden may have told the defendant's solicitor that the contract was for the purposes of bank finance. If she did so she was not in my view giving an accurate account of what actually occurred on 2 October 2019.
31. To the extent that Jan Barnett gave evidence to the effect that Ms Lyden had said that the front page of the contract was merely a draft, or was not binding upon the parties, I reject it. I also reject her evidence that Ms Lyden said "It has no date, therefore no contract". Ms Lyden did not give evidence to that effect (although it emerged that Ms Lyden in fact held the belief that a date on the contract would be necessary in order for it to be binding).
32. In respect of these matters I generally prefer the evidence given by Mr Tapp and Kylie Barnett over that of both Ms Lyden and Jan Barnett. I am satisfied that there was a lengthy discussion about the proposed transfer of part of Myoora to Mr Tapp and Kylie Barnett, and also about the form of contract that specified the lots that would be transferred. I am satisfied that Jan Barnett said words to the effect that the contract was fine, and each of the parties proceeded to sign the contract in the presence of Ms Lyden. I am further satisfied that the signing of the contract occurred without anything being said about the contract being merely a draft or that it was not binding upon the parties.
33. It is clear that forms in relation to an application for a stamp duty exemption were also signed at the meeting. These forms were signed only by Mr Tapp and Kylie Barnett. I think it is likely that this occurred after the contract was signed. That is consistent with the evidence given by both Kylie Barnett and Mr Tapp (in a further affidavit of 30 May 2021). It also seems likely that in this context the subject of the value of the property being transferred was raised, and in the course of the discussion Jan Barnett said something about wanting to talk to her accountant. A handwritten note made by Ms Lyden at the meeting contains a reference to "bank valuation * for S/D" and underneath that is the note "+ Jan's accountant advice". The fact that Jan Barnett said something about speaking to her accountant is further supported by the contents of some emails that were sent in the weeks following the meeting (see, for example, Ms Lyden's email to Jan Barnett on 4 October 2019; Ms Lyden's email to Mr Tapp on 11 October 2019; and Mr Tapp's emails to Ms Lyden on 24 and 29 October 2019). However, I note that Jan Barnett did not depose in her affidavit that she said anything about her accountant at the meeting on 2 October 2019. In cross-examination she denied that there had been discussion at the meeting about the stamp duty exemption forms.
34. The evidence is not altogether clear as to precisely what Jan Barnett said at the meeting about her accountant. In cross-examination, Ms Lyden said that Jan Barnett needed to check with her accountant for "tax reasons" and obtain advice on "tax implications". Ms Lyden further said she understood that Jan Barnett needed to discuss the valuation of the property with her accountant. Jan Barnett agreed in cross-examination that the purpose of talking to her accountant was to get advice about capital gains tax and any impact upon pension entitlements, and was not for the purpose of changing the contract. In my view, it is likely that, in the course of a discussion about the value of the property, Jan Barnett mentioned speaking to her accountant to obtain advice. This is likely to have occurred after the contract had been signed, but in any event I do not think that Jan Barnett said anything to the effect that she would not be bound, or that the contract would not go ahead, unless she obtained advice from her accountant that was satisfactory to her. I do not accept the evidence given by Ms Lyden in cross-examination to the effect that the agreement was not to be binding until the valuation was completed and accountant's advice obtained.

Determination

1. In my opinion, the parties became bound by a contract for sale of portion of Myoora when they executed the form of contract on 2 October 2019. The parties signed a contract that recorded all the matters essential for a binding contract for sale. Viewed objectively, the conduct of the parties in signing the form of contract in the circumstances they did evinced an intention to be immediately bound by its terms (see Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471; [2004] HCA 55 at [33]-[36]).
2. The defendant submitted that the signing of only the first page of the standard form of contract, and the failure to annex documents as prescribed by s 52A of the Conveyancing Act, indicated that the parties had not reached finality on all the terms of their bargain. I do not think that is correct. In my opinion, the manner in which the transaction was documented should be seen as a reflection of the relatively informal dealings of the parties in relation to Myoora that had taken place over some time. Myoora was an asset that had been held in the family for many years. The family members had on other occasions dealt with one another in an informal manner in respect of the property. Arrangements had been made informally, for example, in relation to matters such as the occupation of the two houses on the property, and the running of livestock on the property. As the essential subject matter of the present transaction was a transfer of land, there was a need for documents to be signed. The parties retained Mr Carr, and then Ms Lyden, for that purpose. On each occasion the parties did so together, and at a time when the essential terms of the transfer had been agreed between them. It is not surprising that in those circumstances the parties would be content to sign a simple contract that recorded only the essential matters. I have taken into account the evidence that shows that the parties also spoke about related issues such as irrigation and Jan Barnett remaining, at least for a while, in the bottom house. I think it is likely that the parties were content for these matters to be dealt with separately from the transfer that had been agreed upon.
3. The defendant made similar submissions based upon the fact that the signed contract was not dated, and the signatures were not witnessed. These matters are of little moment as neither is required in order for a binding contract for sale to come into existence. It is of course clear on the evidence that the contract was signed by each of the parties on 2 October 2019 in the presence of Ms Lyden. The contract was made on that day, and 2 October 2019 thus became the date of the contract.
4. The defendant also submitted that no concluded contract should be found because the parties contemplated that there would be an exchange of contracts. This submission seems to rest upon Jan Barnett's reference to an exchange of contracts in her email to Ms Lyden on 3 November 2019, and Mr Tapp's email to Ms Lyden on 4 November 2019 in which he asked for "an estimate on when the exchange will happen". In cross-examination, Mr Tapp denied that he understood that there was no binding contract because there had been no exchange of contracts. He said that he used the word "exchange" in the email in relation to the process, involving the Land Titles Office, of transferring the titles. Mr Tapp's answer is not easy to understand, but his email of 4 November 2019 does appear to be directed to dealings with the titles. Further, it is significant that apart from these references in the two emails, there is no suggestion in the evidence that an exchange of contracts was ever in contemplation. None of the parties, or Ms Lyden, gave evidence of any discussion along those lines. A file note made by the defendant's solicitor of a conversation he had with Jan Barnett on 27 November 2019 refers to "no exchange" but little weight can be placed on the note in circumstances where the terms of the conversation are not deposed to. The fact that the parties jointly retained Ms Lyden (and Mr Carr before her), and all signed the contract in her presence, further suggests that there was no intention to only become bound if there was an exchange of contracts (see Smith v Mansi [1963] 1 WLR 26 at 32-3). If Jan Barnett had thought on 3 November 2019 that there was to be an exchange of contracts before the parties would be bound, she was in my view mistaken. It is more likely that she referred to the exchange of contracts because, having decided that she did not want to proceed, it suited her to claim that no binding agreement had been made.
5. The defendant further submitted that no concluded contract should be found because the signed contract contained no express term requiring the defendant to convey legal title to the plaintiffs, and no mechanism by which completion would occur. However, the terms of the signed contract provide for certain land to be sold by the defendant as vendor to the plaintiffs as purchaser for $1.00, with completion to occur 42 days after the date of the contract. As I have already said, the date of the contract is in the circumstances the date the contract was made, namely, 2 October 2019. There is clearly in these circumstances an obligation upon the defendant to convey title to the land in accordance with the terms of the contract. It is not necessary, in order to find a concluded contract for sale of land, that the contract specify a mechanism as to how completion must occur.
6. For the above reasons, I am satisfied that on 2 October 2019, when the written contract was signed by the parties, the plaintiffs as purchasers and the defendant as vendor entered into a binding contract for the sale of a certain portion of Myoora. The purchase price was $1.00, with completion to occur after 42 days.
7. However, I do not think that the form of contract contained all of the terms of the agreement between the parties. It is clear from the terms of the conversation that occurred after Clare Robinson's death in relation to the transfer of half of Myoora that, as part of the transfer, Mr Tapp and Kylie Barnett would "take over the whole of the mortgage". That this continued thereafter to be central to the transaction can be inferred from Mr Tapp's conduct in relation to the bank in July 2019, and his instructions to Ms Lyden on 27 September 2019. In my view, completion of the contract between the parties was subject to Mr Tapp and Kylie Barnett being able to have the Regional Australia Bank mortgage removed from the titles to the lots that were to be retained by Jan Barnett. That is, a binding contract for sale was made, but completion of the contract was subject to the fulfilment of that condition.
8. The conclusion set forth in the preceding paragraph is not contrary to the pleaded case. The issue raised by paragraph 1 of the Statement of Claim, and denied by the defendant, is whether the parties entered into a contract for sale of part of Myoora on 2 October 2019. The particulars to paragraph 1 of the Statement of Claim refer only to the written contract, but the focus of the allegation is upon contractual formation not particular contractual terms. Some express terms are later referred to in paragraphs 2 and 3 of the Statement of Claim, and breach of the contract by failing to complete is alleged in paragraph 4. Reading the pleading as a whole, I would not read paragraph 1 of the Statement of Claim as an allegation that the contract consisted of only the terms contained in the written contract that was signed on 2 October 2019. In any event, if it was considered necessary to do so, there seems to be no reason why the particulars to paragraph 1 could not be supplemented to add a reference to the condition about the mortgage. Having regard to the issues raised in the case, in particular the estoppel case, and the evidence adduced by the parties accordingly, that would occasion no prejudice to the defendant. Furthermore, the condition operates to her benefit.
9. The defendant did not contend that if a binding contract for sale was found to have been made, the plaintiffs ought not be granted relief in the nature of specific performance. In my view, relief of that character is appropriate.
10. The conclusions I have expressed above render it strictly unnecessary to consider the plaintiffs' alternative claim that the defendant is bound by a proprietary estoppel by encouragement. However, I will proceed to set out my reasons for holding the view that the estoppel claim would have been made out had a concluded contract not been found to exist.
11. The estoppel claim advanced by the plaintiffs was put as an equitable proprietary estoppel. It is an estoppel of a kind referred to in the fifth proposition stated by Priestley JA in Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582 at 610 as follows: For equitable estoppel to operate there must be the creation or encouragement by the defendant in the plaintiff of an assumption that a contract will come into existence or a promise be performed or an interest granted to the plaintiff by the defendant, and reliance on that by the plaintiff, in circumstances where departure from the assumption by the defendant would be unconscionable.
12. Of course, any general formulation such as this must, in its application to particular circumstances, be subject to qualification and refinement reflecting or giving effect to the broad equitable principles which underlie its application (see DHJPM Pty Ltd v Blackthorn Resources Ltd (2011) 83 NSWLR 728; [2011] NSWCA 348 at [47] per Meagher JA; Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105 at [162] per Gleeson JA). The broad equitable principles which underlie this type of estoppel (which may be traced back to Ramsden v Dyson (1866) LR 1 HL 129, and the classic statement of Lord Kingsdown at 170) aim to serve the fundamental purpose of protection against the detriment that would flow from a party's change of position if the assumption or expectation that led to it were deserted (see Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 at [1]-[2]).
13. In the present case, the plaintiffs assert that the defendant made representations to them to the effect that if they did certain things (such as paying money to or at the request of the defendant, or incur liabilities with the defendant) the defendant would transfer half of Myoora to them. It is thus put that the defendant created or encouraged an assumption that an interest in Myoora would be granted to them, and that the plaintiffs acted in reliance upon that assumption such that it would be unconscionable for the defendant to depart from it.
14. It is clear that in cases such as this it is necessary to "attend carefully to the identification of the assumption or expectation which the object of the estoppel is said to be estopped from denying or asserting" (see DHJPM Pty Ltd v Blackthorn Resources Ltd (supra) at [44]; Doueihi v Construction Technologies Australia Pty Ltd (supra) at [161]).
15. The plaintiffs submitted that, by her representations, the defendant encouraged an assumption in the plaintiffs that they would receive title to half of Myoora, and in reliance on that assumption they altered their positions in various ways, including by paying $150,000 to assist in settling the dispute between Clare Robinson and her son, and by borrowing $340,000 with the defendant to assist the defendant to make the payments specified in her mother's will.
16. I have found that in about late January/early February 2018, the defendant told the plaintiffs that if they could provide the money to enable her to pay out her siblings she would transfer half of Myoora to them. I have further found that whilst the defendant was not specific about what "half of Myoora" would be transferred in those circumstances, she nonetheless gave a clear promise to that effect. The promise was made in circumstances where it was contemplated that Clare Robinson would make a new will which provided for Myoora to go to the defendant, and would also provide for other gifts to the defendant's siblings (or their children). A will to that effect was made on 13 February 2018. As a result, a total amount of $500,000 needed to be paid by the defendant as a condition of the gift to her of Myoora.
17. In the course of the mediation that occurred in March 2018, the defendant told Mr Tapp that if he could pay the $150,000 needed for the settlement, it would come off the money the plaintiffs had earlier agreed to pay and "be part of your buy in for half of Myoora". I am comfortably satisfied that Mr Tapp subsequently made the payment of $150,000 in reliance upon what the defendant had said about transferring "half of Myoora". I am also satisfied that the plaintiffs were relying upon what the defendant had said about that when they later became borrowers with the defendant on a $340,000 loan (and Mr Tapp provided a further $10,000) to enable the defendant to pay $350,000 and thereby satisfy the conditions of the gift to her of Myoora under the terms of the will as amended by the codicil. In particular, I have accepted Mr Tapp's evidence that the defendant told him that if the money was borrowed together, she would put Myoora up as security and then "when you take your half of Myoora, you can just take over the whole of the mortgage". As stated already (at [114]), I do not think that the plaintiffs would have agreed to be borrowers and thereafter meet half of the loan repayments had they not received a clear assurance from the defendant that she would transfer half of Myoora to them.
18. I am satisfied that the plaintiffs assumed from what the defendant told them that if they acted accordingly the defendant would transfer half of Myoora to them. Whilst the defendant was not at that stage specific as to what "half of Myoora" meant, I think that her promise was sufficiently certain to support an estoppel of this kind (see Sullivan v Sullivan (2006) 13 BPR 24,755; [2006] NSWCA 312 at [85]; DHJPM Pty Ltd v Blackthorn Resources Ltd (supra) at [54]; Doueihi v Construction Technologies Australia Pty Ltd (supra) at [187]-[188]). In essence, it was reasonable for the plaintiffs to interpret the assurances given by the defendant as promises to transfer about half of the area of Myoora, which of course consisted of land contained in numerous separate titles. It was reasonable for the plaintiffs to rely upon those assurances and do what they did (and continue to do so in respect of loan repayments) in the expectation that the defendant would fulfil her promise.
19. I do not accept the defendant's submission that the nature of the assumption or expectation was that an interest in land would only be created by formal agreement, with the terms of such to be negotiated. The assumption or expectation was that half of Myoora would be transferred if certain things were done. That assumption or expectation arose in a context that was essentially domestic rather than commercial. It arose between parties whose dealings often lacked formality. It was an assumption or expectation that was relied upon by the plaintiffs, and in a most substantial way. The plaintiffs were entitled to assume, having done what was asked of them, that the assumption or expectation would be fulfilled, as promised by the defendant. The fact that the parties later took steps towards the signing of a contract for sale does not in my view detract from these conclusions. Once the parties had agreed upon the parts of Myoora that would be transferred, it was necessary for documents to be signed in order to give effect to a transfer of the agreed lots. The form of contract prepared was consistent with an intention that there be a transfer of certain lots for a nominal consideration. By that time, the plaintiffs had already done what they had agreed to do in return for the promised transfer of half of Myoora to them.
20. Had no binding contract been found, I would have held that it would have been unconscionable for the defendant to depart from the assumption or expectation she created. That is, it would have been unconscionable for her to refuse to proceed to transfer half of Myoora to the plaintiffs. In circumstances where the plaintiffs had acted in reliance upon her assurances, and thereby facilitated her inheritance of Myoora, it would have been against conscience for the defendant to resile from the promises she made and refuse to proceed to transfer half of Myoora. The estoppel alleged by the plaintiffs would thus have been made out.
21. It was not suggested by the defendant that if the estoppel was made out it would not be appropriate to grant relief by requiring the defendant to take steps to fulfil her promises and thereby avoid the detriment the plaintiffs would otherwise suffer (see Sidhu v Van Dyke (supra) at [82]). It was not suggested, for example, that this would be inequitable or unjust because it would be a disproportionate remedy in the circumstances (see Sidhu v Van Dyke (supra) at [85]).

Conclusion

1. For the above reasons, the plaintiffs have succeeded in establishing that a binding contract was made on 2 October 2019 when the parties signed the contract in Ms Lyden's office. A declaration will be made to that effect. The contract remains on foot, despite the defendant's disavowance of it. It would be appropriate to make orders in the nature of specific performance to compel the outstanding performance of the contract. The defendant's Cross-Claim will be dismissed. Finally, the Court will order that the defendant/cross-claimant pay the plaintiffs/cross-defendants' costs of the proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 October 2021