Tremain-Cannon v Tremain

Blake's case

1. The following matters are taken from Blake's affidavit sworn 25 August 2017.
2. Blake was born in 1984 and is currently 35 years of age. He is married to Danielle. They have two children aged 6 and 3. Blake's mother Leanne was born in 1955 and his father Ray was born in 1956. Leanne and Ray married in 1979 but separated in 2007 and divorced in September the following year. Their younger son Jordan, Blake's brother, was diagnosed with bowel cancer in 2008 and died in 2011.
3. Leanne and Ray have for many years conducted a farming and merino stud business in partnership on and from four properties in or near Peak Hill, which is located between Dubbo and Parkes on the Central Western Slopes of New South Wales. The partnership is known as the R O Cannon & L M Tremain Partnership. The four properties, collectively referred to as the family farm, are known as Westray, Lynlee, Bulgandramine and The Woolshed Block. Leanne and Ray own both Westray and Lynlee as joint tenants. Bulgandramine is owned by Ray. The Woolshed Block is owned by Ray and his siblings.
4. Blake completed his schooling in Peak Hill in 2002. He moved to Newcastle to play rugby league for the Newcastle Knights and to study at Newcastle University. In 2006, he completed a business degree and a Certificate IV in finance broking. From March 2007 until May 2008, Blake worked as a coal mining recruitment consultant for Hays Personnel Services in Newcastle.
5. In April 2008, Jordan was diagnosed with terminal cancer. In about May that year, Blake and Danielle returned from Newcastle where they lived to the family farm to assist Leanne and Ray with work in the partnership and to provide company and support for Jordan. Blake commenced work on the farm in mid-2008. He was not paid a wage at this time. Blake has continued to work on the farm since then.
6. When he first moved to live in Newcastle, Blake's mother would call him regularly and they would speak for long periods on the phone. Blake has given evidence that during these conversations, Leanne would often say words to the following effect: "We are going broke. What are we going to do about it? The debt and spending is out of control here and we are heading for a clearing sale. We owe over a million now and we are never going to get out of debt. Ray is hopeless. I'm going to divorce Ray soon. If I ever turn out like Bill, get a gun and shoot me."
7. Blake said that he would respond with words to the effect of: "If you're unhappy, things need to change. What can you do about it to change things?"
8. Blake spent four years playing rugby league for the Newcastle Knights before joining Hays in early 2007. In late 2007, while still living in Newcastle, Blake had a conversation with his parents to the following effect: "Can you come home one weekend to have a family discussion on how the farm ownership is going to be split. We need to make sure that there is some financial separation but the partnership remains fully intact for Jordan."
9. According to Blake, he returned home shortly after this in order to attend a family meeting. It was one of several similar meetings. Blake maintains that his parents said to him words to the effect of: "There is room for you to return in the future if you want to. You and Jordan make a great team."
10. Blake alleges that this had been said to him many times throughout his whole life.
11. In 2007, as a trainee recruitment consultant, Blake's base salary after nine months with Hays was $35,000 plus superannuation. He earned approximately $50,000 to $55,000 when commissions were taken into account. In early 2008, Blake was promoted from trainee to consultant and was offered a base salary of $70,000 with a guarantee of $100,000 plus superannuation, including commissions. He was offered a similar job with Chandler McLeod recruitment agency. He was also being paid between $500 and $1,000 per game with the Newcastle Knights.
12. In June 2008, when Jordan's health and the financial position of the partnership were both deteriorating, Blake attended a meeting at the Westray home with his parents, his wife and his brother. Also in attendance were Paul Clyburn and Will Harris as representatives from Parkes Rugby League Club and North Parkes Mine. During this meeting, Blake was offered a contract to play with the club for $800 per game and a job at the mine driving a dump truck. That job was worth $70,000 per annum. Blake said that he declined the offer of the job because he was "led to believe that the family was relying on [him] to work on the family farm."
13. Blake said that on numerous occasions either over the phone or face to face in the presence of Danielle and Ray or privately, usually at the Westray home, his mother said to him: "If you left, the whole lot would have to be sold. This place has no future at all without you."
14. Blake said he recalls that around July 2008, he was standing in the front paddock below the house cutting burrs when he had a telephone conversation with his mother as follows: Blake: "I left a $100k per year salary at 23 to return home to help you and Ray. It would be nice if the people I was trying to help would start helping themselves" Leanne: "I don't think Ray appreciates the sacrifices you have made. I did a similar thing with my parents." Blake: "Helping on weekends and school holidays is very different to giving up your day job and all your income."
15. Following this, Blake attended a mid-morning meeting at the Westray house with his parents and his brother. Blake said that during this meeting he said, "I require some wage or income as I cannot continue to work for free". Leanne and Ray both said that they agreed. Blake said that Leanne then said, "We could sell up and you could have some of the money". Ray said, "We could sell Lynlee to reduce the debt". There was no agreement about either of these suggestions. Blake said that Ray suggested that the partnership overdraft could be increased and that he could draw a wage. However, there were bills dating back to September 2008 then still unpaid and Blake was negotiating and communicating with some of the creditors. Ray said, "We must trade our way out of it". Blake said that he was asked again by both his parents to "hang in there". They said, "It will be worth it for you". They said, "The sacrifices will be worth it down the track".
16. Blake said that he and Danielle both "sacrificed" their jobs to return to help the partnership. He commenced working on the farm without payment on average about 80 hours per week. He received no wage and lived off his savings. He also used some of his savings to assist the partnership. He paid for renovations to the home on Lynlee.
17. Towards the end of 2008, it was becoming increasingly clear to Blake that the way the farm was being run, including without paying him a wage, could not continue. At the end of 2008, Blake and Jordan each paid $2,500 in reduction of monies owing to Greg Cannon on Bulgandramine as the partnership was behind due to its financial difficulties. Blake said that he did this because he believed, as a result of what his parents had told him, that it would be in his interest to assist the farm to release the financial pressure on the partnership.
18. Blake said that "on multiple occasions" his parents said to him, both separately and individually, at Westray that "things will change in the near future". Ray said, "You need to be patient". Leanne said, "Hang in there". Blake then said this at paragraph 67 of his principal affidavit in these proceedings: "As a result of what Ray and Leanne said to me, I stayed and worked on the farm because I was led to believe that I would be included in the partnership and land or paid a wage as the family farm would eventually be mine. Had these words not been said to me, Danielle and I would have left for Newcastle shortly after Jordan was to pass away. I continued to work for the partnership without payment."
19. In about June 2009, Blake had another conversation with his parents as follows: Blake: "I need some sort of wage. I can't keep working for nothing for much longer." Leanne: "I agree." Ray: "I'll get you your own cheque book tomorrow."
20. Blake did not receive a cheque book.
21. Throughout 2009, Leanne and Ray continued to tell Blake that the farming business would one day be his. They said that Jordan was not likely to recover and that the sacrifices he was making would be worth it down the track. Blake said that he continued to believe that he would be compensated for the work he was doing "by being included in the partnership and land".
22. Blake said that 2009 was a tough farming season. There was below average rainfall. The 2008 harvest season had also been poor. Hay and grain were scarce. Most farmers typically destocked. However, the partnership stud was overstocked and feeding livestock was labour intensive. Blake handfed sheep daily to ensure that the standards were met and their genetic stock was not lost. During 2009, Leanne repeatedly said to Blake, "Things will get easier in the future." Leanne also said: "You are working for yourself. This will be yours. Hang in there."
23. Shortly before Christmas in 2008, Blake and members of his family travelled to Yeoval to work on West Timbie, a property then owned by Leanne's father. They worked there from early in the morning until late at night. They left to return to Peak Hill at about 11pm. On the drive home, Leanne, Jordan and Blake had the following conversation: Leanne: "Things will get easier in the future. I have arranged for us to get the bigger block at Yeoval and Val to get The Valley and some other assets to make it fair. This will mean if they want to sell in the future we would try and borrow the money to buy them out." Blake: "It will be when, not if." Jordan: "Val might not want to sell but all the others will." Blake: "We would probably need to borrow 2 million to buy it and we would be unlikely to get the deal we got with dad's family." Leanne: "Even without it, it would give us some economies of scale. Grandfather will die first and Nanna has already said she will be much easier to get along with. There's Nanna's house in Dubbo, her jewellery and some cash if need be."
24. From about the middle of 2009, Ray and Leanne said to Blake on numerous occasions: "You'll be included in the partnership and the land so you can stay on the property and it will provide a future for you."
25. During this period, Ray also said: "I have spent my life trying to create something for you boys to take over and one day call your own. It's my dream to work alongside my two boys in the family business."
26. Also during this time, Leanne said to Blake: "What is mine is yours. It will be you who benefits from our properties at Peak Hill and West Timbie because, by the time I receive West Timbie, I will be too old to do anything with it. Nanna had long said it will be the grandkids who actually benefit from this place."
27. Blake said that during 2010, discussions surrounding his involvement in the partnership increased. Ray regularly raised the issue with him and Leanne. Ray would say, "We need to think about the future."
28. During that year, Danielle had almost completed her teaching degree and needed to advise the Department of Education about her location preferences. Blake and Danielle had to make a decision about their future. Blake told his father that if nothing was finalised soon, they might have to leave after Jordan died. Shortly thereafter, Blake had a conversation with Leanne as follows: Leanne: "The only person that does well in farming is the person who gets to sell it. That will be you and not me as I will leave everything to you." Blake: "I have no intention of ever selling the farm. I hope to leave it to my family but I can't keep working for nothing." Leanne: "You should tell Ray he needs to go and get a job as a truck driver or work in the mines. You could hire someone to help you run the farm and I will match Ray dollar for dollar to pay down the debt."
29. At the end of 2010, Blake put his cousin Toby Cannon on a rural traineeship to work on the farm. Jordan was unwell. Ray was having difficulties following the separation and with Jordan's health. Leanne was not working on the farm. Blake said he was struggling to get the work done.
30. Shortly after Toby commenced, Leanne and Blake had another conversation as follows: Leanne: "Get Ray to get a job and I will go back teaching after Jordan dies and we can both contribute the same amount to the farm and you will run it with Toby." Blake: "I'm not kicking him off his own farm whilst Jordan is dying from cancer or ever for that matter." Leanne: "Let's face it, Ray is fucked. You're the future here and you should get a go now."
31. Jordan died in April 2011. He left everything to Blake. That included Jordan's Border Leicester stud business known as Grow On.
32. From 2011 until 2015, Blake put all the income he received from Grow On into the partnership. This amounted to $99,750. Blake said that he made this and other contributions in cash and kind from the Grow On operations because of "the promises that Ray and Leanne made to [him] in words to the effect 'you will benefit from this in the future when you own the lot'."
33. Discussions about Blake's inclusion in the partnership increased in about May 2011. Blake and his parents agreed to attend Rural Biz, an agri-business company, "to assist in finalising a way forward". This meeting took place on 2 August 2011 in Dubbo. Blake says that during the course of the meeting "a number of positions were agreed". The following conversation occurred: Ray: "I want Blake included in the business immediately…it is his birth right…he has proved himself as an asset to the business." Leanne: "I agree." Lynn and Kathy: "I think that Blake should own and operate the business. He should get the trading assets and all the debt and half of Westray. Ray would take a step back and work for Blake. He would keep Bulgandramine and his ute. This would mean that Leanne and Ray don't work together." Blake: "I don't think Ray will like giving up ownership and working for me." Lynn: "It can work. My husband works for our son. It just takes a bit of getting used to. Leanne will get half of Westray all of Lynlee and the SAMM stud." Leanne: "I want to retain the SAMM stud and the car. I'll pay my own insurance." Ray: "I prefer the merinos anyway so I'm fine with that."
34. A letter dated 4 August 2011, recording what was said at this meeting, was later prepared by Kathy Sims. That letter is in the following terms: "Dear Ray, I am writing to give you a record of your family meeting held at our offices on 2 August 2011. Present at the meeting were Ray Cannon, Leanne Tremain, Blake Cannon (after lunch), Lyn Sykes (chair) and Kathy Sims. The meeting opened with development of a genogram (attached) and a brief history of the family's acquisition of farming land. Land purchases were Lynlee (1980, 246ac, $63,500), Westray (1985, 680ac, $204,000), Garryowen (1989, 465ac, $165,000) and Bulgandramine (2000, 2134ac). Bulgandramine was acquired through inheritance of 498ac and a debt of $190,000 to Ray's siblings, payable over 10 years. Approximately $60,000 of this debt has been paid to date. Lyn clarified that the main task for the meeting was to discuss a division of property between Ray and Leanne. She asked each person about their hopes and concerns for the meeting. Ray: Ray's hopes and concerns were: • find a reasonable resolution • both to move forward • keep the stud intact • maintain equity and economy of scale Ray is full time on the farm, and is the stud master. Bulgandramine is a 3 generation Cannon property. He currently lives in the B&B unit on Westray. Leanne: Leanne's hopes and concerns were: • find a fair and equitable outcome • hold half of the land and be a farmer • make her own financial decisions • get a conclusion to the current situation • move forward • ensure her parents are not involved in the property settlement. Leanne is teaching at the Juvenile Justice Centre in Dubbo and lives in the homestead on Westray. ISSUES DISCUSSED Agreed values of assets and liabilities Following discussion, a listing of assets and liabilities at agreed values was developed and is attached. Land values were considered again following the lunch break and confirmed as the values to be used during the rest of the meeting. Basis for division of assets It was agreed that: • the inherited portion of Bulgandramine (approx. 500ac) will be held by Ray and will not be included in division of assets • Leanne and Ray each have entitlement to 50% of the remaining net assets. • farming land will pass to Blake. Division of assets After discussion, it was agreed that some farming assets should transfer to Blake now and the remaining assets be divided between Ray and Leanne. It was agreed that assets (not including vehicles currently being used by Ray and Leanne) will be divided as shown in the table below: Ray Leanne Blake Land: Westray/Garryowen 529,000 529,000 Lynlee 350,000 Bulgandramine 990,500 Livestock: SAMM stud 126,000 Balance of livestock 622,000 Plant & Equipment 358,000 Water Licence ________ _________ 175,000 TOTAL ASSETS 990,500 1,005,000 1,684,000 Less: Debt 1,011,700 NET ASSETS $990,500 $1,005,000 $672,300

Ray and Leanne will have ownership for the vehicles they are currently using. Leanne will assume responsibility for insurance of her vehicle from policy renewal in 2012. Future management It was agreed that: • Blake is to have full management control of the farming business, with full decision making control • Leanne can continue to run the SAMM stud on Westray. Housing It was agreed that: • Leanne and Blake will give Ray a written undertaking that, while they own Westray, he can continue to live rent free in the B&B unit on Westray for as long as he wants. • Leanne will give Blake a written undertaking that, while she owns Lynlee, he can continue to live in his current house on Lynlee rent free for as long as he wants. • Blake and Leanne will discuss any planned improvements to either of their houses and all costs are to be recorded. • Leanne and her partner will make a contribution to electricity costs to be calculated as 50% of the cost of electricity on Lynlee (Blake's house). Other agreements It was agreed that: • Each person will organise a binding financial agreement with their partner that partners will not claim on farming assets in the event of relationship breakdown or death. All present agree that if children are born, the relevant binding financial agreement is to be reviewed to ensure that assets may pass to children at the death of their father/mother. • Ray and Leanne are to seek advice on the effects of proposed asset transfers on their likely eligibility for future Age Pension. • Current partnership is to pay costs of implementing all decisions made today. • Ray will contact David Hando (accountant) for his help in implementing the decisions and for a recommendation of a solicitor (preferably in Dubbo). • Details of these arrangements will be kept confidential to the family and professional advisors. The message to be given to others will be 'We have reached a tentative agreement, and the details are confidential.' Lyn asked each person to rank their feelings at the beginning and end of the meeting and to provide a closing comment. Beginning End Closing Comment Ray 6/10 5.5/10 It has gone reasonably smoothly, with some concessions made Leanne 1/10 1/10 Mixed emotions - it's a big change Blake 6-7/10 6-7/10 Figures are only a part of it, we need to work out how to keep everyone happy. It will be a new challenge

Would you please check this record carefully and let me know of any errors by 19 August 2011. If no alterations are requested, it is agreed that this is a true record of the meeting. Lyn and I thank you for the opportunity to work with your family and wish you all the best in implementing your decisions. Kind regards"

1. Shortly after the 2 August 2011 meeting with Rural Biz, Blake said that he became "increasingly concerned that Leanne was not going to make good of [sic, on] the agreement reached" there. He said that he "was worried because nothing had progressed since the meeting". Blake said he was "also worried because during the Rural Biz [meeting] [he] had agreed that [he] would take 50% of the land of Westray and all of the debt and if Ray or Leanne decided to sell Lynlee or Bulgandramine [he] would not have a say in it".
2. Blake decided to speak to Ray about his concerns. Ray said: "Let's have another meeting. This time with John De Bomford. He is experienced in these sorts of matters. He knows and understands our business and financial position and would probably be happy to help if we asked him."
3. A meeting was arranged for October 2011. The following conversation took place at the meeting: Leanne: "Our debt level is over one million dollars. I don't think there is a good future in farming. How would we ever pay it back? John De Bomford: "There are people out there that are geared a lot higher than this place and the ones that have been consistently profitable I can count on one hand. It has been tough as you guys know." Leanne: "I'm worried that the agreed split in the Rural Biz meeting was unfair on Blake because he is taking all the debt and if he hit some bad seasons and commodity prices fell it would make it very difficult to service the debt he didn't create. I would prefer the business split into two smaller businesses so Ray and I were independent of each other. I will have a partnership with Blake where he works half the time and he can spend the other half of his time with Ray in that partnership." Blake: "We already went over this in the Rural Biz meeting. It isn't practical and it would be an administrative nightmare for me to manage and I don't think it would be commercially viable. If that's the way it's going to be I would rather get paid what I'm owed and leave and not return." John De Bomford: "It would be silly to lose your economies of scale as it would threaten both entities' overall viability. It would ensure you both struggled to make ends meet for the rest of your lives probably." Blake: "I did have concerns initially about the Rural Biz changes as I was exposed to other people potentially selling Lynlee and Bulgandramine out from under me because I'd have no ownership in them. If this occurred there would be nothing I could do about it and then I would have all these animals with nowhere to run them as well as nowhere to live. I would much prefer an interest in all properties so that no one can sell anything, without all parties agreeing. This would make sure no irrational decisions were made." Ray: "Blake needs to be included in the business immediately. It's his birth right and he has proven himself as an asset to the business during a very tough period. He deserved [sic, deserves] to be remunerated for his efforts over the last three and a half years and this inclusion into the partnership and land would ensure he is adequately compensated and would give him a long-term future in the business and the industry. Farming is a young person's game and as Leanne and I are nearing retirement age it makes sense for succession planning to occur now. We have both always told the boys it would be theirs in the future." John De Bomford: "Succession is something that is viewed very favourably by banks as it shows a long-term future plan for the business and gives them confidence, particularly with someone like Blake who is young, degree qualified and very commercial. This is rare in farming as he could command significantly more elsewhere." Leanne: "I'm happy to include Blake in the partnership. I'd be happy to give him a third share in my assets and land and if Ray did the same he would be an equal partner." Ray: "I'll give him half of mine." Blake: "I don't need half and it would be simpler to keep it all the same and have an equal three way partnership and division of assets." John De Bomford: "It would certainly be cleaner." Leanne: "If the business is to remain as one then Blake would need to be the manager. He would need to have full decision making authority but should consult with the other partners on important matters." John De Bomford: "So the agreement now is that Blake will be included in the partnership and land as an equal partner." Leanne: "I'm not comfortable with Ray being able to spend my money. Blake should become sole signatory on the cheque book with Ray and me going off the cheque book. Once that happens you two can go on a direct debit system for small wages until the business could afford to increase the wages. This would occur when Blake deemed it could be afforded." Ray: "I'm not going off the cheque book in my own business." Leanne: "Blake should be in charge. It's his time." John De Bomford: "It will reduce conflict between Ray and Leanne if Blake managed the money." Blake: "We will have a direct debit system for wages so it's not like you're not going to have any money." Leanne: "How would the bank view this arrangement in terms of the mortgages?" John De Bomford: "The security isn't changing, just the ownership of the land so they won't have a problem at all with Blake's inclusion in the land. It will be viewed as a major positive. The major concern is their interest payments being met." Ray: "Should we meet with the bank to discuss the changes we are going to implement with them?" John De Bomford: "I wouldn't yet. It's important to maintain bank confidence until you guys have sorted out how you're going to implement it. I would speak to the accountant and solicitor before the bank." Leanne: "Would a family trust or partnership be the best way to go for the restructure for the entity." John De Bomford: "You should speak with John Curley. He has done some work for me on some of my companies." Leanne: "What about stamp duty on the transfer of the title to Blake. Would those portions lose pre-GST status or not." John De Bomford: "I think you better meet with John Curley about this as well." Leanne: "What about Danielle? You will need to get a prenuptial agreement." Blake: "What about Peter?" Leanne: "Peter is harmless and Ray will probably have a partner in the future as well that [sic, who] we will need to consider." John De Bomford: "Bottom draw [sic, drawer] loans can be used as a protective measure. This is a loan that can be called in to protect kids from a divorce. It is there only as a last resort protection mechanism and can a loan called in as a priority to divorce proceedings if necessary. John Curley in Dubbo specialises in this area and will be able to help with Blake's inclusion into the business. I will arrange the meeting." Leanne: "I've heard of bottom draw loans. Bruce Hodges has one for his kids to protect them."
4. Shortly after this meeting, Leanne wrote to Blake in the following terms: "Ray and I have agreed to 'Bulgandramine' + shed block Ray's 'Harvey View' & 'Garry Owen' (known as Westray) Leanne's 'Lynlee' Tenants in common 50% share each Leanne to keep her superannuation about $50,000 Her shares *Sigma * BHP trade of 1,000 shares Money in her bank acc. About $60,000 Each retain 50% share in stock, plant & anything else."
5. On 21 November 2011, Blake, Leanne and Ray met with John Curley in Dubbo. Blake said that this was to discuss "rollover provisions, current ownership, proposed transfers, CGT implications, securing homes, asset protection, and business restructuring and binding financial agreements". Blake said that he understood that the focus of the meeting was to implement what "we had agreed upon" at the meeting with John De Bomford and in particular what was the best way for him to be included in the partnership while ensuring that the assets were protected.
6. Following that meeting, John Curley wrote to Leanne, Ray and Blake in the following terms: "Dear Leanne, Ray & Blake, In our meeting Monday 21st November we discussed marriage breakdown & rollover of assets, succession planning. You have been meeting with John De Bomford, who has been acting as mediator and succession planner. You have asked what would be the results if this plan is implemented. These are notes from our meeting & subsequent investigations on my part re queries raised. Rollover provisions Leanne asked if land owned pre capital gains would retain its status if the marriage rollover provisions of subdivision 126-A applied. The answer is yes! The relevant provision is: S126-5(6) For a disposal case where the transferor *acquired the asset before 20 September 1985, the transferee is taken to have acquired it before that day. However I would need to check with a tax lawyer but I cannot find any provision that would allow a rollover to Blake. If the pre CGT land is to go to Blake the pre CGT status is probably lost. On transfer any share to him would be at current market value. But this is not likely to be an issue?? Current ownership & proposed transfers • Lynlee is pre CGT land & currently owned as joint tenants by Ray & Leanne. Any transfer to the other party would retain its pre CGT status. Not sure if I have the correct transferee. If it is to go to Blake then refer to preceding paragraph. • Westray is pre CGT land & currently owned as joint tenants by Ray & Leanne. The desired aim is to transfer Ray's share to Blake. As mentioned no capital gain occurs & Blake's share will be valued for CGT purposes at current market value. Leanne's share remains pre CGT. • Garryowen is post CGT land and owned as joint tenants by Ray & Leanne. Ray's share is to go to Blake. No tax should be payable due to small business reliefs available under Division 152. Approximate calculations below. • Bulgandramine land was pre CGT & owned by a Pty Ltd company of the same name. 10 years ago it was transferred to Ray. As such it transfer value should be the correct cost base for CGT calculations. I think from my notes the average transfer value was $116/acre. Ray to keep 498 acres & 800 acres to be transferred to Blake - this will be a CGT event but will not have any stamp duty due to relief under intergenerational transfer. Capital Gains Tax Using Garryowen as an example no CGT should be paid. You have advised that you pass both tests of 'net assets' under $6 million & business turnover below $2 million. As such, the market value of Ray's share is $550,000 (I am not sure if this is the value of Ray's 50% share or the total value of Garryowen). Its cost base is approximately $165,000. Therefore the gain is $385,000. As the asset is 'active' we can take both 50% general discount & 50% active asset reduction leaving a taxable gain of $96,250. Assuming Ray has not used any of his lifetime retirement limit of $500,000 no tax will be payable as he can further reduce it by using the Retirement Exemption. Fortunately you do not have to retire to access this. For nil cash to be outlaid you do not need to be over 55 years of age. Ray advised this was the case. Securing homes Leanne was fearful that transfers of land to Blake could put at risk her security over her own home. This can be addressed by 2 simple methods: 1. Use of life insurance on Blake, to be held by Leanne. The proceeds from this could be used to pay to Blake's estate. 2. Use of peppercorn rent on home used by Leanne such that whoever held land would be purchasing/taking over with Leanne having full rights to her residence. The second method should also be used by Ray, as he will be living on land owned by Leanne & Blake. Securing Blake's asset protection I mentioned that land transferred to Blake could be tied up with a loan. The aim of this is to ensure that only any increase in property value would become subject to a claim in the event of a split up. Indeed this can also be used to secure Leanne's title over some of the land that her house is on. The counter side of this are that they are potential estate assets that may be subject to a claim by a new or existing partner. So careful consideration is needed. Business Structure & proposed change The business is currently conducted by a 50/50 partnership between Ray & Leanne. There is currently 1 million of debt. It was suggested Blake should be admitted as an equal 3rd partner. Due to rollover relief for both stock & plant this can be achieved at nil tax cost (in simple terms Blake needs to hold a 25% SHARE AT MINIMUM for this to be effective). The issue of personal drawings was discussed but no amounts were set. I strongly suggest that regular amounts are paid from the partnership account to members personal accounts - the partners are then free to use these funds however they like. Currently Leanne is working and has stated she does not need drawings. In the event she lost her job however she would also need to draw from the partnership. These amounts need to be documented and I would strongly suggest a partnership agreement is drawn up. In a good year partners may feel a bonus is warranted. This should go to all partners equally. If you feel this should be different then I suggest your share's [sic] of the partnership should reflect this. Partnership agreement As suggested above it would be very sensible to document your expectations of how the arrangement would work. In normal close knit families this is rarely done. However partnerships between different families have least trouble when partnership agreements are in place. Examples of things you may wish to include in the partnership are expected work commitment, holidays, remuneration and decision making ie does the decision need to be by majority or should it required agreement by all. Solicitors I have mentioned to you that it is imperative that you each receive independent legal advice. Only in this way can you insure the courts will sign off on your divorce arrangement. I will attach ATO advice on this matter as the CTG rollover is only available if all correct steps are made. I have further considered solicitors and believe it should matter little who you should consult because if any of you are not committed to the arrangement then it will fall through. However I have provided a few names of solicitors that can provide the above: • Andrew Graham (partner) from Peacocke Solicitors - phone … • Brian Goodall (partner) from Booth Brown & Samuels, or • Kane Olney (partner) from Booth Brown & Samuels - phone … • Evan Jones from Lovett & Green - phone … Evan is probably a little far as he is located at Warren, but as I was dealing with him recently I can vouch that he is capable. I could provide more names and will do so if needed but these should suffice. Powers of Attorney & Wills Once you progress further you will need to attend to these as well. Binding Financial Agreements These were also discussed and their limitations in ensuring that assets are passed to intended people. These should be discussed when visiting the solicitor. Next Step I believe the first step is to make contact with a solicitor once you are comfortable about the likely outcome. Regards"
7. Blake said that "as a result of this meeting, [he] continued to believe that [he] will be included in the partnership".
8. In January 2012, Ray suffered a heart attack while on holidays in Sydney.
9. The farming season for 2012 was a drought year. Blake was not paid a wage but continued to inject money into the partnership from Jordan's stud "to solve the cash flow issues with the partnership".
10. During the time that Ray was recovering, the discussions around the restructuring of the partnership were brought to a standstill. However, Blake's workload increased significantly.
11. At paragraph 122 of his affidavit, Blake said this: "I knew that in order to preserve the family farm and my future, based on the promises that had been made to me, I had no option but to increase my workload. During this time, Leanne did not contribute financially or physically to assist the partnership."
12. In early 2012, Leanne moved from Westray to Dubbo to live with her then partner Peter Maher. Blake said that he has seen Leanne at Peak Hill rarely since then.
13. In about May 2012, Blake and Ray had lunch with their Rabobank manager, Charles Perry, in Dubbo. In early October 2012, Blake and his parents met with John De Bomford at the Westray showroom. The following conversation took place: John De Bomford: "We are here to discuss the progress since we last met. John Curley has given me a summary of what was discussed with him. It sounds like all the agreements that were made are positive and can be implemented in a tax efficient and low cost manner particularly the stamp duty relief due to the fact that it was for intergenerational transfer of land. This is a key point and a huge saving which makes it very doable. He also clarified for me that marriage rollover provisions would maintain their pre CGT status, which I remember was one of your concerns Leanne. So that's positive as well. CGT will not be detrimental to anything we have proposed, which is obviously helpful. Housing security which was one of everyone's original concerns can be overcome with life insurance and the use of peppercorn rent. So that augers really well for the future. He told me he mentioned the next step would be a discussion with a solicitor." Ray: "I have spoken to a solicitor and he told me that it would be reasonably simple to implement the transfer of land and not too expensive." Leanne: "John Curley was good but tried to overcharge us by billing research of some of my questions but I sorted that out." Ray: "My health and the wedding plans have slowed the partnership talk down a bit but I have not changed my mind. I still want Blake included as a 1/3 partner in the business and land." Leanne: "I haven't changed my mind either and I think Blake is doing a fantastic job in difficult circumstances." John De Bomford: "I think things have improved significantly and speaking with many clients recently at the sales there was a lot of positive commentary about the stud." Blake: "That is nice to hear but I want to get moving on the restructuring. I have been working for four and a half years in the business for no wages and I was told last August I would be included immediately and that was 15 months ago. In the meantime, I have worked seven days a week, most weeks, something which the partners are not doing, and it is frustrating. I can't continue to run on fresh air." Ray: "You are working for yourself." Leanne: "The sacrifices will be worth it in the future." John De Bomford: "That is understandable and the reason we are here today is to sort these kinds of matters. It shouldn't be allowed to drift along. It's not in anyone's best interests for that to occur." Leanne: "It's more important to me that things are done right. I've worked hard my whole life and put every cent I've had into the place. I need security because I don't want to wind up being destitute." John De Bomford: "It is important to overcome this issue by having everyone clear on the direction you guys have said you wish to head in. So that everyone is clear we had Westray to Leanne, Bulgandramine to Ray and Lynlee to be tenants in common. The partnership assets such as stock, plant and equipment, water licences are split 50/50 with a restructure to include Blake as an equal partner across all asset classes, including the land. The transfers to be based along portion lines." Leanne: "I need to keep the car." Ray: "That's fine I'll have the ute." Leanne: "I want to keep my super as the farm already has most of it and Ray hasn't paid me back from the fodder shed." Ray: "It was your idea to build it." Leanne: "You promised that the farm will pay me back when it could." Blake: "That is true I remember that." Ray: "Well it hasn't been able to yet. I don't have any super as it all went to the farm but that would be fine if she will agree to move forward with what we have already agreed upon." Leanne: "I want to keep all the shares." Ray: "You mean the family share portfolio." Leanne: "No, they are mine." Blake: "You can't have a divorce and want half of the other person's assets and yours remain yours. Divorces don't work that way." John De Bomford: "What does the share portfolio consist of?" Leanne: "I have 1,000 BHP, some Woodside, Sigma and Oz Minerals. Ray owns half the Oz Minerals the rest belong to me." Ray: "That sounds fair." Blake: "That is ridiculous." John De Bomford: "What is the value of the portfolio roughly?" Leanne: "I'm not sure." Blake: "You must have a rough idea." Leanne: "I haven't looked recently." Ray: "What was it the last time you looked?" Leanne: "I can't remember." Ray: "If this is going to be a sticking point, I'm prepared to sacrifice the shares for Blake's benefit." Leanne: "I want to keep all the cash in my bank account." Ray: "The family cash at the bank? You must be joking." Leanne: "It's my tutoring money. It's the only money you never got your hands on hence why I still have it and you're not getting any of it." Ray: "Some of the child endowment money that was supposed to be spent on the boys not [sic, got] siphoned into your personal bank account." Blake: "You made a significant portion of that money tutoring in this building for cash while the business was paying all the expenses. You have to be a bit fair here." Ray: "I will move forward without it as long as I get a guaranteed rent free life tenancy." Leanne: "That doesn't worry me." Ray: "I want that in writing." Leanne: "Okay."
14. At paragraph 130 of his affidavit, to which no objection was taken, Blake said that at the conclusion of this meeting, he believed "the agreement reached" was as follows:

• To speak with a solicitor
• Meet with the accountant Mark Job to get advice on whether a partnership or family trust was the most suitable
• To make the necessary changes at Rabobank by maintaining the existing account just by adding Blake's name to it and changing the signatories on the account to only him
• Ray was to have Bulgandramine
• Leanne was to have Westray
• Lynlee to be tenants-in-common
• The partnership to remain intact
• Blake was to become an equal partner across all asset classes including the land
• Business would pay restructuring costs
• Blake was to assume managerial control
• Leanne was going to continue to teach

1. Ray drafted a note following the meeting in the following terms: "2nd Meeting John De Bomford Oct 2012 Leanne and I have agreed, Bulgandramine - Ray Westray to Leanne Lynlee - Tenants in Common Stock Plant - 50/50 Ray to take life tenancy on current residence Move to restructure partnership to include Blake on 1/3 capacity of all assets If this happens, then Leanne keeps her Super (50k) Family cash at Bank (60k) Family Share Portfolio (50-60k) BHP Sigma WPL OZL Family Car Mazda 6 (30k)"
2. Leanne also drafted a note following the meeting as follows: "My primary objective is to keep the farm operational so I do not wish to sell any land. Ray's sol. has advised Blake that the Family Court will sign off on shared property. Thus it would appear that a settlement involving me taking W & sharing the Lynlee block with Ray is possible. I realise this is not a completely equitable solution but Ray is unlikely to agree to anything else as he wants ownership of a block with a house. This is an option I feel I can live with. I need to reach a conclusion soon as economic & health issues are becoming increasingly significant."
3. Blake said that following this meeting, Leanne said to him on a number of occasions that "the Family Court will never sign off on Lynlee as tenants-in-common". John De Bomford is said to have commented on this saying, "If that is the case you can just transfer it to Blake".
4. At paragraph 137 of his affidavit, Blake then recites the details of an undated conversation in the following terms: Ray: "I don't have a problem with that." Leanne: "I don't agree with that. I want to have a meeting with Andrew to discuss this. He will be able to help as he has gone through something similar." Blake: "This isn't fair. You are getting more than your fair share and we are covering all your responsibilities while you contribute nothing." Leanne: "What return on investment am I getting for 1.5 million?" Blake: "You don't own the farms, they are financed so we are paying them off for you. We are improving them at the same time improving capital gain and paying your bills. You get a direct benefit from what we do. We get no benefit from what we do?"
5. Andrew Tremain is Leanne's first cousin and an investment banker. On 16 February 2013, Blake and his parents took part in a meeting chaired by Mr Tremain at the Westray homestead. The meeting lasted about six hours. It included the following dialogue among those present: Andrew Tremain: "The reason I have agreed to help is because I care about everyone in this family and thought it was in everyone's best interests to have things resolved sooner rather than later. I am grateful for the support that you, Leanne and Ray, gave me when I was younger and I hope I can help now. Blake can't continue to live on the smell of an oily rag and presumably he wants to have a family of his own to support in the near future and the current arrangement here won't allow that. If Blake isn't getting a wage then he needs to be compensated in equity." Blake: "We are approaching 5 years since I have been paid anything and that can't continue. It's straining on Danielle's income and reducing our quality of life. I was assured years ago that I had a future here. Danielle and I have made major career and life decisions based around verbal assurances and inducements I was given by both of you." Ray: "You do. I am ready to have you included as a 1/3 partner in the business and land and I have been for years. We have already agreed to include you on the portion lines since it was first formally discussed with Rural Biz." Leanne: "I'm concerned about the future. I don't want to end up homeless." Ray: "That's ridiculous." Andrew Tremain: "Leanne you are going to be far more financially secure in the future than most people with what is coming your way. If you're ever homeless there will be people living in tents on the side of the Newell Highway before it gets to that." Blake: "If Leanne wants out of the partnership we need to work out how to compensate her so she leaves the business immediately." Leanne: "I've only ever wanted to be a farmer. I want to remain part of the partnership." Ray: "Partners contribute. What are you going to do?" Leanne: "I'm not going to put any of my money into the partnership unless you get a job and then I'll match you dollar for dollar." Ray: "That won't be happening." Blake: "What are you going to contribute then?" Leanne: "I'll work weekends and school holidays on the place to make a contribution and when the debt was paid out you can send me one third of the profits." Andrew Tremain: "Obviously the wages paid would need to be reflective of the individual time and effort put in." Ray: "We have already agreed several times to include Blake in the partnership. Why don't we stop wasting our time here and find out if Leanne is going to honour her commitment she has given him." Leanne: "I am happy for Blake to have a third share of the partnership and the land but I want protection from Danielle." Blake: "I want protection from Peter." Ray: "We have already spoken about a bottom drawer loan." Blake: "Danielle has already agreed to sign anything required, has Peter? You're just stalling. I can't keep working for free. Soon you'll have to figure this out on your own." Leanne: "If that happened the whole lot would have to be sold." Ray: "That's not your call to make. You don't own the whole lot and you told Blake he had a future here because you wanted to keep the whole farm operational with him to manage it as it would all be his in the future. If you didn't he wouldn't be sitting here now. So don't try and blackmail him now…" Andrew Tremain: "Let's all remain calm and move on to what was agreed with John De Bomford late last year." Ray: "I get Bulgandramine, Leanne was to have Westray and Lynlee to be tenants in common. I get rent free life tenancy on the cave. Business to be split three ways to include Blake. Blake is to be a 1/3 partner in the partnership and all the land." Leanne: "Blake to be manager. Ray and I will go off the cheque book and Blake will run it. The restructure will be paid for by the business and will occur after the land transfers are completed and the Family Law Court matters are finalised but I don't think the Family Law Court would sign off on tenants in common on Lynlee. I should have Lynlee because Ray has more raw acres and therefore more potential for capital gain." Blake: "We are here to discuss and sort out reality not potential and that wouldn't be fair we have already been over this many times. Based on your valuations that would see you having 54.5% of the land with no consideration for his [sic, my] inheritance. Andrew Tremain: "I'm not sure the Family Law Court will approve any property remaining tenants in common, they like separation." Ray: "I'm not giving up that property as well or I will have no house in my name. The Family Law Court will rubber stamp whatever we agree upon. We don't need them dictating to us." Blake: "It isn't a fair split, he has conceded far more than you at every mediation session." Leanne: "If I get Lynlee, the partnership restructure can happen immediately and I'll give Ray the written guarantee for rent free life tenancy. At the conclusion of the meeting, we agreed to meet with Mark Job to enact the new structure." Blake: "If you were to get Lynlee you would need to contribute $30,000 to the Elders working capital account."

Ray's affidavit

1. Ray swore an affidavit on 27 April 2018. Despite the fact that Ray is a defendant, he was not independently represented and supported all of Blake's claims. For presently relevant purposes, nothing to which Ray has deposed contradicts or derogates from Blake's evidence to which I have just referred in some detail.

The pleaded case

1. Blake's case is pleaded in terms of his amended statement of claim filed on 3 May 2017. In general, Blake contends first that the defendants are bound by an agreement made with him to bring him into a new partnership with them on specified terms, including the transfer to him of legal interests in certain properties owned by his parents on and from which the partnership business is conducted and as an equal partner with them. Blake contends secondly that he is entitled to the same benefits as those that he would receive if the contract were performed upon the basis that he altered his position to his detriment in reliance upon his parents' promises that they would include him in their partnership and transfer legal interests in their properties and that it would in such circumstances now be inequitable and unconscionable for his parents to resile from their promises.
2. It is instructive before proceeding further to examine the precise way in which these contentions are pleaded. Paragraphs 12 to 29 of the amended statement of claim are in these terms: "12. In 2008 and 2009, following commencing work for the defendants on the Family Farm and for the Partnership, on a number of occasions, the plaintiff told the defendants that he required to be compensated for the work he was doing for the defendants on the Family Farm and for the Partnership otherwise he would return to his career and stop working for the defendants on the Family Farm and for the Partnership. 13. The defendants induced the plaintiff to continue working for them on the Family Farm and for the Partnership telling him that he would receive an interest in the Partnership and Family Farm and/or be otherwise properly compensated. 14. Relying on the inducement, the plaintiff continued to work for the defendants on the Family Farm and in the Partnership to his detriment, the detriment being that he did not return to his career and did not receive an income similar to that which he would have received had he returned to his career. 15. The plaintiff worked with Jordan on a property known as West Timbie, owned and/or operated by the first defendant's parents. The work was for two days per fortnight for which the plaintiff and Jordan received payment. 16. In 2010, on a number of occasions, the plaintiff told the defendants that he required to be compensated for the work he was doing for the defendants on the Family Farm and for the Partnership otherwise he would return to his career and stop working for the defendants on the Family Farm and for the Partnership. 17. The defendants induced the plaintiff to continue working for them on the Family Farm and for the Partnership as he would receive an interest in the Partnership and Family Farm and/or otherwise be properly compensated. 18. On 2nd April 2011 Jordan died. 19. Following Jordan's death, the plaintiff again considered his future with regard to working on the Family Farm and for the Partnership. 21. Both the defendants were aware that the plaintiff had offers of employment in Newcastle with businesses known as Hays and Chandler Macleod respectively. 22. The plaintiff did not have a legal interest in the Family Farm or the Partnership and had not and was not being paid a wage. In effect, at the time of his brother's death, the plaintiff had foregone (approximately) in excess of $300,000 in income. 23. From 2011 to 2013, on a number of occasions following Jordan's death, the plaintiff told the defendants that he required to be compensated for the work he was doing for the defendants on the Family Farm and for the Partnership otherwise he would return to his career and stop working for the defendants on the Family Farm and for the Partnership. 24. The defendants induced the plaintiff to continue working for them on the Family Farm and for the Partnership as he would receive an interest in the Partnership and Family Farm. 25. Relying on the inducements the plaintiff continued to work for the defendants on the Family Farm and in the Partnership to his detriment, the detriment being that he did not return to his career and did not receive an income similar to that which he would have received had he returned to his career. Particulars 25.1 In or about October 2011 the plaintiff and the first and second defendants attended a meeting chaired by John De Bomford who was the first and second defendants' former bank manager and a former financial rural counsellor. The meeting took place at the second defendant's residence on Westray. 25.2 During the course of the meeting, it was agreed that the defendants would transfer a 1/3 interest in the Family Farm and the Partnership (including plant and equipment, assets and stock) (the Transfer) to the plaintiff on the basis that the plaintiff would continue to work on the Family Farm and for the Partnership (the Agreement). 25.3 Reliant on the Agreement, the plaintiff continued to work for the defendants on the Family Farm and in the Partnership to his detriment, the detriment being that he did not return to his career and/or did not receive an income similar to that which he would have received had he returned to his career. 25.4 On or about 21st November, in a meeting with John Curley, the Agreement referred to in paragraph 27 above [sic!] was confirmed. 25.5 There were further discussions between the plaintiff and the defendants which culminated in a further meeting in or about February 2013 with Andrew Tremain, the first defendant's first cousin (an investment banker) during the course of which the Agreement was confirmed. 25.6 On the afternoon of 11 May [sic, April?] 2013 a meeting was held with the defendants' accountant, Peter Woods & Associates where the Agreement was confirmed and it was further agreed that a new partnership would be created between the plaintiff and the defendants to be known as the Cannon, Tremain and Tremain-Cannon partnership. The partnership was created and its ABN is 31 393 786 800. 26. The plaintiff continued to work for the defendants reliant on the Agreement and to his detriment. 27. Whilst the first defendant has confirmed the Agreement the first defendant, despite repeated requests, has failed to give effect to the Agreement. 28. The second defendant has confirmed that he will give effect to the Agreement, but cannot do so without the first defendant doing so. 29. Further, and/or in the alternative, the plaintiff says the defendants are estopped from denying the Agreement and/or not giving effect to the Agreement as the Plaintiff acted to his detriment in reliance on the inducements, representations and the Agreement as pleaded above."
3. The case pleaded in contract does not in terms specify the consideration allegedly passing from Blake to his parents. It would appear, however, to be accepted on both sides that Blake's contention is that he worked on the family farm for little or no reward and that his parents' agreement to compensate him in the way he alleges was made in consideration of his performance of that work.

The contract claim

1. Leanne contends that Blake's contract claim should fail for the following reasons.
2. First, the alleged agreement is not in writing and is therefore unenforceable by reason of s 54A of the Conveyancing Act 1919. Clearly enough, that provision would not preclude enforcement of any contract that Blake were otherwise able to establish if Leanne's reliance upon it would be unconscionable.
3. Secondly, Leanne says that the alleged agreement is "unpersuasive and disputed" and is "improbable given the surrounding circumstances". This submission is considered in more detail later in these reasons.
4. Leanne submitted thirdly that, even on his own case, the essential terms of the agreement alleged by Blake were never agreed. For example, it was never agreed what land would be transferred to Blake, what his work obligations were to be, what arrangements were to be made with respect to existing mortgages secured over the properties, how the existing debts of the partnership would be borne in the proposed new structure and indeed what the fundamental terms of the proposed commercial and business enterprise would be.
5. Finally, Leanne maintained that the alleged parties to the agreement Blake asserts never intended to become legally bound by discussions at their meetings and that any prospect of agreement was subject on both sides to documentation of the proposals and the benefit of professional advice.

Consideration

1. In my opinion, for the reasons that follow, Blake has not established on the balance of probabilities that Leanne agreed to enter into a binding contract of the type alleged by him or indeed any contract at all. In my view, Blake's claim in contract claim fails on his own evidence, even before consideration is given to Leanne's response to that evidence.
2. Blake's starting point is the October 2011 meeting with John De Bomford. Blake's own evidence is that he said at one stage, "If that's the way it's going to be I would rather get paid what I'm owed and leave and not return". He later proceeds to express his preference for taking an interest in all properties, clearly at that stage an indication of hope and not a recognition of consensus. The properties are not particularised adequately in any event. Ray's quoted reference to the boys always being told "it [sic] would be theirs in the future" is equally consistent with a testamentary disposition.
3. The high point of the meeting from Blake's point of view is arguably reached when John De Bomford is said to have commented that "the agreement now is that Blake will be included in the partnership and the land as an equal partner". It is not without significance that at this stage of the meeting, Blake says that Leanne immediately responded by saying that she was not comfortable with Ray being able to spend her money. Ray confirmed that he would not relinquish his ability to write cheques for the enterprise. Anything discussed was also subject implicitly to the agreement of the bank.
4. Leanne also raised the not inconsiderable issue of what the proposed new business structure would be: partnership or family trust. John De Bomford's response was to indicate that the parties should speak to John Curley about it, suggesting if not in fact establishing that the parties remained in the train of negotiations.
5. Nor did Leanne's note to Blake shortly thereafter make the position any more certain. Blake's reference at the meeting to "an interest in all the properties" was not quantified and Leanne's later note makes no reference to a one-third interest, a fundamental concept on Blake's own case, being transferred to him. Leanne's reference to "tenants in common 50% share each" is completely ambiguous and as such too uncertain to be enforced.
6. At the later 21 November 2011 consultation with John Curley, Blake said that the focus of that meeting was to implement what had been agreed the previous month with the assistance of John De Bomford. However, John Curley's undated letter referring to that meeting is patently expressed in the language of what might occur, not what had occurred. John Curley clearly saw his role as an advisor, following the discussion with John De Bomford, about "what would be the results if this plan is implemented". His letter incorporated "notes from our meeting & subsequent investigations on my part re queries raised".
7. Under his heading "Partnership agreement", John Curley suggested that "it would be very sensible to document your expectations of how the arrangement would work" [my emphasis]. He then gave examples "of things you may wish to include in the partnership". In relation to securing Blake's asset protection, John Curley had already warned that "careful consideration is needed". He had also "strongly suggested" that "a partnership agreement is drawn up". John Curley also advised that it was "imperative" that Blake and his parents "each receive independent legal advice". The letter concludes with John Curley's belief that "the first step is to make contact with a solicitor once you are comfortable about the likely outcome". Even Blake's evidence is that "as a result of this meeting, [he] continued to believe that [he] will be included in the partnership".
8. In my view, it cannot be said that any agreement had been reached at this point between Blake and his parents about when or how or even if he was to be made a member of some partnership to be formed with his parents that included the transfer of real assets and the sharing of debt and other matters. That conclusion can be tested by attempting to reduce the precise terms of the putative agreement to writing. It is simply not possible to do so. I am not satisfied that the evidence establishes Blake's particularised allegation in paragraph 25.2 of the amended statement of claim that it was agreed that the defendants would transfer a one-third interest in the family farm and the partnership, including plant and equipment, assets and stock, to him on the basis that he would continue to work on the family farm and for the partnership.
9. Consistently with what I have just said, I am not satisfied, as Blake asserts in paragraph 25.4 of the amended statement of claim, that the meeting with John Curley on 21 November 2011 in any way served to "confirm" the agreement alleged.
10. Nor am I satisfied that the alleged agreement was "confirmed" on the afternoon of 11 April 2013, as Blake asserts in paragraph 25.6 of the amended statement of claim. However, consideration to that occasion can only be given in the light of what occurred in the intervening period between 21 November 2011 and 11 April 2013: Blake has given evidence about this but his amended statement of claim is curiously silent on the significance of these intervening events to the question of whether or not an agreement of any sort had been consummated.
11. The October 2012 meeting with John De Bomford commences with a reference to discussing "progress" since the last meeting. It is clear from the discussion at that meeting that the attendees were there to attempt to reach some kind of agreement. It is not at all consistent with any agreement having been reached. Indeed, at paragraph 130 of his affidavit Blake refers in terms to obtaining advice from Mark Job on whether to proceed by way of a partnership structure or family trust. Ray's note of the meeting also refers conditionally to "if this happens". Leanne's note speaks of a settlement being "possible". She also referred to her need to "reach a conclusion soon". The language of the 16 February 2013 meeting with Andrew Tremain is also expressed in the language of what will or might happen, not what had happened.
12. In my view, Mark Job's assessment of the position in his conversation with Blake several months after the death of Leanne's mother in June 2014, accurately summarised the position. Leanne had indicated that she did not wish to proceed or, in his words, that she wanted to "cancel" the new partnership. Mark Job expressed the view that there was nothing much that could be done if Leanne were not agreeable. I cannot accept, for example, that Blake could then have obtained an order against Leanne requiring her specifically to perform the agreement which he now asserts was made with her and his father. Far from any agreement having been reached, even in principle or subject to it being documented, its terms were never certain but were still evolving when Leanne pulled out.
13. Blake has provided me with detailed and helpful written submissions dealing with the issue of why Leanne's denials that she agreed with Blake should be rejected. It will be apparent from what I have already said that I do not accept that Blake has established that any agreement with his mother was concluded. That result is not dependent upon acceptance or rejection of Leanne's evidence. However, having regard to the emphasis placed upon it by Blake, the following matters should be recorded.
14. I do not accept that Leanne's 13 July 2015 response to Blake's emails was an admission or acceptance of the agreement Blake alleges. Blake submits that Leanne's response was "clear documentary support for the existence of the 2011 agreement and amounts to an admission". Blake has submitted that Leanne failed to deny that there was an agreement as he asserted and that as "an intelligent, strong and determined woman" she should be expected to have done so.
15. Leanne was not in fact required to deny anything. The exchange of correspondence between family members does not correspond to a pleading and Leanne's silence on an allegation gives rise to no inference against her. Leanne was emphasising the uncertain state of the Family Law proceedings. The agreement that Blake asserts was undoubtedly subject to what happened in that context.
16. Leanne's evidence about the August 2011 meeting with Rural Biz was as follows: "MAY [AUGUST] 2011 MEETING WITH RURAL BIZ 166. (102). I attended a meeting at 'Rural Biz' as referred to in this paragraph. Until the meeting started I was led to believe by Ray and/or Blake that the purpose of the meeting was to assist Ray and me to come to a matrimonial property settlement. It became obvious during the meeting that Ray and Blake's agenda was different to mine and no agreement was ultimately reached that suited me. I was there to discuss a property settlement with Ray. It became apparent from the ideas being discussed and voted at the meeting that Ray and Blake attended with a view to succession planning. 167. (103). This was one of the meetings in which I felt 'ambushed'. Whatever Ray and Blake may have thought, I did not say anything to make it 'clear', or even to suggest, that Ray and I were 'ready to move forward to include [Blake] in the partnership and Family Farm.' There was no agreement reached. I heard out the ideas floated by Ray and Blake but I did not agree to anything. The ideas floated were then circulated to us all and we were given the opportunity to seek further legal and accounting advice. 168. (104). I can't quite recollect the dates of the Rural Biz meeting, but do not take issue with what Blake mentions about dates in paragraph 104 of this affidavit. 169. (105). I never reached an agreement with either Ray or Blake at the Rural Biz meeting and I never promised Blake anything about 'progressing in [some particular] direction'. I can't quite understand why Danielle was expressing her preferences prior to the meeting taking place. 170. (106.) I agree I attended the Rural Biz meeting on or about 2 August 2011. I recall that at the conclusion of the meeting I rated my feelings as a 1 out of 10 because I felt high jacked [sic] and was forced into appearing to agree to something that I did not want. The meeting was always meant to be between Ray and me and after obtaining legal and accounting advice I did not believe it appropriate that the meeting was conducted in the way that it was, as I had no legal representation, no support person and I went there believing we were discussing a property settlement and not succession planning. I again felt high jacked, ganged up on and isolated in my position. 171. I recall sending the convener Kathy Sims of Rural Biz an email following the meeting expressing my lack of agreement. Annexed to this affidavit and marked 'C' is a copy of that email. 172. No agreement was ever reached as a result of the meeting with Rural Biz. 173. (107). Blake's understanding of the 'focus' of the [Rural Biz] meeting' is different to mine. The meeting, as I understood it, to discuss a division of property between Ray and myself. I then got railroaded into succession planning issues. 174. (108). Throughout the meeting and particularly following Blake's arrival I felt incredibly pressured, I did not reach or express any agreement as alleged in this paragraph. Again I felt high jacked, ganged up on and isolated in my position. 175. (98) [sic]. I refer to my responses at (102)-(108) above. I rated my satisfaction with the meeting at Rural Biz so low because I was not happy with the outcome of any of the discussion points. Everyone except me agreed with a prearranged agenda. Indeed at the very end of the meeting I recall being asked by the convener whether I agreed and remember saying 'Whatever'. I do not believe this is the same as saying 'Yes'. I felt that I was steam rolled into the meeting and steam rolled into discussions. I recall being confused and bewildered at the time particularly when Blake arrived and the meeting turned to succession planning, away from property settlement."
17. The email sent by Leanne to Kathy Sims on 19 August 2011 is as follows: "Dear Kathy, Thank you for forwarding a copy of the events of 2 August 2011. I would like it recorded that I stated to you on several occasions during the meeting planning process, that I was attending mediation with you for a property settlement. I also stated that I wanted half the land, half the debt, nothing more and nothing less. I also stated that I was not interested in a succession plan at this meeting. I raised the issue of my superannuation at the meeting, it was not noted in the statement, nor was it addressed. I have many concerns and feel the meeting was somewhat 'hijacked'. I will be seeking legal advice."
18. Leanne made the following submissions with respect to this document: "BALAFOUTIS: What is noteworthy then - and we say, in fact, it may be the most important document in the case, which is Leanne's email in response - and the reason why this is such an important document is it's a contemporaneous note of Leanne's true intentions. It's a contemporaneous note of Leanne's true intentions. True it is it wasn't sent to the plaintiff because Leanne followed the instructions of the meeting organiser, but it's consistent at every step with what Leanne says truly occurred in these meetings."
19. The force of Leanne's contemporaneous assertion of her position in this document is extremely difficult to discount. It contradicts Blake's case that his mother agreed to bring him into a new partnership at the 2 August 2011 meeting. It is an unambiguous expression of Leanne's views at the time. It contains no admission, and gives rise to no inference, that Leanne was even negotiating with Blake for any purpose. The fact that it was written at all suggests to me that Leanne anticipated well before these proceedings commenced that Blake and Ray may later seek to propound a different version of what occurred. The existence of the letter is self-evidently contradictory of the existence of an agreement: such a letter is unlikely to have been generated by Leanne in an atmosphere of consensus and finality.
20. Blake is also critical of Leanne's evidence to the effect that consideration of bringing him into a partnership with her and Ray was never something she would have been prepared to consider and that such a proposal did not accord with her way of thinking. She was cross-examined at length about this. For example: "INSALL: You've read Blake's affidavit in these proceedings and Ray's affidavit in these proceedings; correct? A. Correct. Q. You know that those affidavits state on a number of occasions that the subject matter of Blake being included in the partnership was discussed; correct? A. Correct; discussed. Q. Yes, and in relation to those occasions when the inclusion of Blake into the partnership was discussed, you never said to Blake, 'Look, I'm sorry, but the inclusion of you in the partnership is completely contrary to my thinking,' did you? A. I don't recall. Q. Well, it would have been the obvious thing to say when Blake suggested that he be included as a member of the partnership, wouldn't it? A. No. Q. Why not? A. I, well, I was focused on a property settlement through the family law court, to have separation from Ray. So what I was focused on from the time of Jordan's death was for me to have my half of the property, my half of the assets, my half of the debt. Q. Yes, but you know - I think you've already agreed with me - that in the affidavits of Blake and Ray they have said that there were quite a number of occasions where the proposal at least, to include Blake as a member of the partnership, was discussed? You recall that? A. Ray and Blake discussed that, I believe. They just couldn't get me to agree to it. Q. When they discussed it and, as you say, couldn't get you to agree to it, you didn't say to them, 'Look, I'm sorry, it's just completely contrary to my thinking that you will ever be included in the partnership,' did you? A. I don't recall saying that. There was a lot of conflict, a lot of bullying, a lot of intimidation. Q. You never said anything to that effect to them, did you? A. I tried not to cause any further conflict, if that's what you're asking. Q. What I suggest to you is that you knew full well that Blake was proceeding on the basis that he had an agreement with you as from 2011. A. He never had an agreement with me. Q. My question was, you knew A. Incorrect."
21. The burden of this attack was that it was somehow incumbent upon Leanne to scotch any prospect of an agreement at the earliest possible opportunity, lest Blake became encouraged that his mother might be eventually amenable to persuasion. However, short of committing to an agreement with him, Leanne was under no obligation to correct what Blake may have thought or hoped in terms of them reaching an agreement: the agreement either came into existence or it did not. The question of whether or not Leanne may in some way have induced or encouraged Blake to rely upon her conduct to his detriment is a different issue to which later reference is made.
22. Nor do I consider, contrary to Blake's submission, that it was "noteworthy" that Leanne accepted that Blake and his father had agreed to "the arrangement" in the first De Bomford meeting. Putting aside my view that no agreement had been reached that involved Leanne, the fact that Blake and Ray may have agreed between themselves is entirely beside the point. That is particularly so in the circumstances of this family having regard to the fact that Ray was not then happily disposed to Leanne in the first place and was vigorously championing almost anything that benefited Blake in the second place.
23. A statement by John De Bomford, upon which Blake next relies, such as "the agreement is for Blake to be included as a trading partner and take equity in the land" is no more likely to be evidence that Leanne had agreed to the proposal than that it was a general expression summarising the parameters of an arrangement that was simply being discussed.
24. Blake next submitted that the objective circumstances supported the existence of a consummated agreement in October 2011. These objective circumstances were said to include the following matters: 1. Blake was Leanne's only remaining son. 2. Leanne loved Blake very much. 3. Blake had worked extremely hard and in the region of 80 hours per week for the partnership without any proper remuneration for three years (apart from the ability to use a fairly humble home plus incidentals). 4. Leanne and Ray had obtained the benefit of this hard work. 5. Blake had done this on the basis that he expected to be compensated. 6. It was fair that Blake should be compensated and both Leanne and Ray accepted this. 7. The partnership was unwilling or unable to repay Blake for the work he had done. 8. Leanne's primary objective at this time was 'to keep the farm operational' (although this is 2012, it must be inferred that this was her primary objective throughout - she has never sold land and her actions in persisting in the operation notwithstanding the huge divisions between the parties, supports this proposition). 9. It was reasonable to think that the only way the partnership debt was going to be handled in these circumstances was if Blake was induced to remain on the land and keep working extremely hard to improve its financial position. Leanne regarded Ray as ineffective and the partnership was not going to improve its position by paying employees to run the farm. 10. An agreement would benefit Leanne's own financial position because it was clearly reasonable to think that he was going to continue to work extremely hard to improve the business. 11. The agreement was also to Leanne's financial benefit because it would mean that she and Ray did not have to come up with the funds to repay Blake for his three years of unpaid work as at 2011. 12. For these reasons, Leanne did not have any reasonable concern that an agreement would threaten her future financial security and, in any event, she could reasonably expect that she would receive at least a 50:50 share in her elderly parents' estate, if not a larger share, as discussed with Blake in 2008.
25. I disagree that these so-called objective factors establish that an agreement was reached, even if they could be said to support it. At best the matters referred to are not inconsistent with Leanne wishing to make such a deal as Blake alleges but they are no more significant than that. It is not sufficient for his purposes for Blake simply to maintain that Leanne was committed to fair dealing in the hope of demonstrating that the only available consequence of that characteristic is the formation of an agreement of the type he alleges. Leanne's preparedness to install Blake in a position of financial and managerial superiority in the farm business over Ray is consistent with her view of Ray as an ineffective operator as well as her marital disregard for him. It says nothing about whether Leanne was prepared to give a large section of her properties to Blake, particularly having regard to Leanne's avowed dislike for Blake's wife and her concerns about what would happen to that property in the event that Blake and Danielle separated or divorced.
26. Blake also submitted that Leanne's evidence in relation to the agreement "is impossible to accept". This was said to be for a number of reasons.
27. First, Leanne was said not to be a credible witness. She was evasive when faced with difficult questions. Some examples from the transcript of Leanne's cross-examination were proffered to support this contention. For example: "Q. I think in your affidavit you advance as one of the reasons why you didn't make an agreement with Blake that he would get a third share of the partnership was that you were concerned that you always wanted to have a roof over your head, or words to that effect. Do you recall that? A. I've always wanted to have a roof over my head. Q. Yes, and what I suggest to you is that you had no real reason to doubt that you would ever be in a position where you didn't have a roof over your head, having regard to your parents' estate. Correct? A. Incorrect. No one can predict the future. There's dropping commodity prices, there's people contesting wills. Q. So are you suggesting you didn't have any expectation of obtaining anything from your parents' estate when they died? A. No, I'm not specifically suggesting that. I'm just saying my mother implied that's what would happen. There was nothing set in concrete. Q. I suggest to you that you knew as at 2008, thereafter, that there was a real possibility that you were going to inherit a substantial sum of money? Correct? A. In what, what year did you say? 2008? Q. As from 2008? A. I don't remember the exact time but as your Honour said, one would assume - two girls, a property - that it would be left to the girls. … Q. I suggest to you it was never a reason for refusing to enter into a partnership agreement with Blake that you were concerned about whether or not you'd have a roof over your head. Correct? A. Incorrect. The main reason or one of the many reasons I didn't wish to enter into an agreement with Blake was that I did never ever wish to be tied to Ray Cannon financially - land wise, asset wise, anything - for any further period of time in my life."
28. I accept that Leanne did not directly engage with the point of the questions. I do not consider that her answers could be regarded as evasive.
29. Another example, this time dealing with Blake's letter to his mother, is said to be found in the following extract: "Q. When you received this letter, you didn't go to Blake or say to Blake in any way shape or form, 'Look that letter said that there was an agreement that some of the farming assets would be transferred to you now. I'm horrified because it's completely contrary to my thinking that you will ever get any of the partnership assets while I'm alive.' Correct? A. Incorrect. I believed the correct procedure was to respond to Kathy Sims. I sent her an email to that effect. Q. But you knew that Blake could well be assuming that there was an agreement from this letter? A. I wasn't aware of what Blake would be assuming. Q. You'd read the letter and it suggested that there was an agreement to transfer assets to Blake now? A. I'd read the letter, correct. Q. You knew that Blake had received the letter, I've just asked you that question? A. I wasn't aware of whether Blake had received the letter. But I assumed-- Q. I think you've just said-- A. --he had. Q. You concluded that there was a real prospect that Blake believed that an agreement had been made to transfer some of the partnership assets to him now, correct? A. I'm unaware of what Blake's beliefs were at the time. Q. Anyhow you did nothing to go to Blake and say, 'I just want to make one thing clear right now, you are never going to get any partnership assets whilst I'm alive.' You didn't say that, did you? A. Kathy Sims said the process was to notify her if I was not happy with it. I notified her as instructed on the covering letter."
30. I have already dealt with what I consider to be the effect of Leanne's letter to Kathy Sims. Even if Leanne was not giving a direct answer to the question about whether she ever told Blake in terms that she would never transfer partnership assets to him during her lifetime, the letter makes clear what her views were at that time. Blake could have been under no misapprehension about it. I do not accept that Leanne's responses to questions about why she did not otherwise deny Blake's email asking her to honour "the 2011 agreement" were fanciful or self-serving. I agree that Leanne's answers were to some extent overly defensive. However, in the circumstances in which she found herself, I do not consider that this characteristic reflected poorly upon her. By the time she came to give her evidence, Leanne was a divorced woman living alone, whose subsequent relationship had failed, still to my mind clearly grieving over the death of her younger son, being sued by her only remaining son with the acquiescence and support of his father, her former husband, a man she clearly despised. It is in my view unreasonable, if it does not in fact also offend common sense, to maintain that Leanne was not entitled to stand up for herself in the combative situation that confronted her.
31. Blake then made the similarly extravagant submission that Leanne's evidence about the several important meetings upon which he relies to establish the agreement was "so inconsistent as to be meaningless". He emphasised the following things.
32. With respect to the first meeting with John De Bomford in November 2011, Leanne asserted that she had no recollection of the parties ever discussing Blake receiving a one-third interest in the partnership or a transfer of a similar interest in the properties. She denies making a statement to that effect. When the matter was raised with Leanne in cross-examination she accepted that the matter of Blake being included was in fact discussed at that meeting.
33. However, that submission goes nowhere. It fails to take account of Leanne's other evidence in which she explains that discussions of that sort, which she has summarised as "succession planning", did not involve her and did not include her. Accordingly, nothing said by Leanne in her evidence to the effect that it was completely contrary to her thinking ever to agree to transfer any assets to Blake whilst she was alive and that she never did so is not inconsistent with that position. I strongly reject the submission that "it is inconceivable that she would have permitted a discussion about transferring a share to continue for a single moment in those circumstances".
34. Blake next criticises any suggestion that Leanne was misled into attending the meetings (where he says the partnership was discussed) on the basis that they were supposed to be for the purposes of resolving the property settlement or dealing with the annual accounts. Blake contends that such an assertion "is not credible" and would require one to accept that Leanne, who Blake repetitively refers to as "an intelligent determined woman, having been misled a first time, would fall for the same trick time and time again".
35. That submission fails to accommodate Leanne's letter to Kathy Sims. As I have already attempted to make clear, that letter was unambiguous, unequivocal and contemporaneous. It was not written in the course, or even in the looming shadow, of these proceedings. It is a complete answer to this submission. It also nullifies Blake's criticism of his mother's complaint that she was bullied or railroaded into attending meetings. It is in my experience not difficult to accept that Leanne would have felt the need to be present when any meetings were arranged to discuss the family farm having regard to the fact that it was stricken by drought and other problems and that she was liable for a significant share of the secured debt to the bank.
36. Blake submitted that insofar as Leanne denies making an agreement in the first De Bomford meeting or other meetings or discussions, her evidence should be rejected. Blake submitted that his mother was not a credible witness and that it was inconsistent with the evidence of Ray, Blake and John De Bomford. I disagree.
37. Blake also made the following submissions by comparison with the evidence given by some of his other witnesses.
38. First, Blake submitted that Leanne's evidence is inconsistent with the evidence of Corina Barnes. Ms Barnes gave evidence that Leanne told her in about 2012 that she and Ray were going to split the farm three ways and Blake was going to be included because he had kept the farm afloat and turned things around for the property. She told Ms Barnes that Blake had made big contributions and came back to work at the farm for not much. Blake submitted that Ms Barnes "was an impressive witness and there is simply no reason why her evidence should not be accepted".
39. Leanne's evidence about this alleged conversation included the following cross-examination: "Q. I don't want to take up time by going through each of them, but we [sic, you] had a discussion with Corina Barnes in about July 2012, I suggest to you, where you said to Corina, 'Ray is being difficult with separation. We've got three homes on the farm and we're going to split the farm three ways'? Correct? A. Incorrect. I could not have said that, because Ray and I had been separated for years, and we were in fact not only past the separation stage, we were also divorced. … Q. You may have said, 'Ray is being difficult with the property settlement.' You may have said that? A. Incorrect. I would not have had a personal conversation with her about any private matters ever. Q. You said, 'My son is going to be included.' Correct? A. Incorrect."
40. I disagree that Ms Barnes was an impressive witness. In my estimation, she was unnecessarily combative and hostile to the cross-examiner. In any event she ultimately gave the following evidence about what she said Leanne told her: "Q. She didn't suggest she was actually going to go ahead with it, did she? A. She said it was in the plans, that's what they were doing." (Emphasis added.)
41. To the extent, if at all, there is any substantive conflict between the evidence of Ms Barnes and Leanne about what was said during the conversation in question, I would prefer the version given by Leanne. Even taking Ms Barnes' version of the conversation at its highest for Blake, it did not establish that any agreement had in fact been finalised and was consistent with a course of executory discussions. Moreover, Ms Barnes appears in any event to have conceded that Leanne's references could have been in the context of her property dispute with Ray: "Q. If she did divorce Ray in 2008 she can't have suggested to you in 2011-- A. With the settlement then. Maybe separation wasn't the correct term. Q. She may have referred to a property settlement? A. Mm hmm."
42. Leanne had not by 2012 effected a property settlement with Ray following their divorce and that aspect of their separation was still unresolved before the Family Court as late as the middle of 2015.
43. Blake also submitted that Leanne's evidence is inconsistent with the evidence of Geoff Bortfield who said that Leanne told him, when Blake returned to the farm, that "Blake should be part of the partnership". He said that he had numerous discussions with Ray and Leanne with respect to Blake's inclusion in the family business in which Leanne said words to the effect "I want Blake to be part of the partnership". Mr Bortfield is dead, so there is no reliable way to assess his credibility.
44. Blake next submitted that Leanne's evidence is inconsistent with the evidence of Mitchell Campbell-Rogers. He stated that he and Leanne were in the kitchen at Westray in 2010 and Leanne said "[Blake] has made a big difference. Hopefully he will stay and take over. He has saved the farm". He also said that after the birth of Blake and Danielle's first child on 16 January 2014, Leanne said to him "I don't care what agreement I had with them. That Abo filth will never get any of my property, not even when I am gone. That is all she wants and now she has the kid as leverage". Leanne denied in cross-examination that she said these words.
45. Blake submitted that Mr Campbell-Rogers was an impressive witness and that "there is simply no reason why his evidence should not be accepted".
46. It is sufficient to dispose of that submission that I record a further impression of Leanne. By her own admission, Leanne was not shy about using strong language. She was also certainly not well-disposed to Danielle for reasons that are difficult to condone. However, aside from those things, Leanne was not to my observation a woman who was prepared to share her feelings on personal matters. Doing the best I can I consider that it was at least highly unlikely that Leanne would have discussed the state or nature of her commercial dealings with Blake with Mr Campbell-Rogers.
47. Blake submitted that the meetings that were held after the first De Bomford meeting were "implementation meetings". He submitted that Leanne's attendance at these meetings was inconsistent with her denial of any agreement: at the very least, it should be found that Leanne attended these meetings knowing that Blake assumed that she had agreed or promised to give him a one-third share in the partnership and land and that her failure to inform him that she would never agree encouraged his assumption.
48. The first meeting after the De Bomford meeting was with the accountant John Curley on 21 November 2011. Blake and Ray gave evidence that the meeting was for the purpose of implementing the agreement. Leanne stated that the purpose of the meeting was to "further discuss the arrangements agreed to by them", although she denied that she had agreed.
49. Blake submitted that neither he nor his father was shaken in cross-examination on this issue. Their evidence is also said to be consistent with the letter of advice provided by Mr Curley on 21 November 2011.
50. Moreover, according to Blake, Leanne's evidence with respect to the 21 November 2011 meeting with Mr Curley was problematic in several important ways.
51. First, Leanne stated that she knew that the purpose of the meeting was to discuss the arrangements agreed to in the De Bomford meeting. If she knew this to be the case, it was incumbent on her, in good conscience to refuse to take part and to inform Blake that she was never going to include him in the partnership. She did neither. However, in my view there had been no agreement reached with the assistance of John De Bomford at that meeting so that it was not "incumbent' upon Leanne to do anything at all.
52. Secondly, in cross-examination, Leanne then contradicted her affidavit evidence, when she said that she did not know that the purpose of the meeting with Mr Curley was to discuss the partnership arrangement with Blake but rather was to discuss her property settlement with Ray.
53. Thirdly, Leanne's evidence that the purpose of the meeting was to discuss the property settlement is said by Blake to be inconsistent with the letter from Mr Curley on 21 November 2011, which records that the primary focus of the meeting was to discuss the taxation implications of including Blake into the partnership and provide overall advice in respect of implementing same. On the contrary, the discussion about "taxation implications" is neutral on the issue of whether an agreement has been completed, and is equally consistent with the exploration of issues that remained to be resolved before the final terms of any agreement could be reached.
54. Fourthly, there is a complete absence of any recorded dissent by Leanne in Mr Curley's letter. Blake contended that "it would be quite remarkable for her to have expressed dissent to such an arrangement and for this not to be recorded in the letter of advice by a third-party accountant". However, that submission loses sight of the facts. For example, John Curley's letter commences with the following words: "In our meeting Monday 21st November we discussed marriage breakdown and rollover of assets, succession planning. You have been meeting with John De Bomford, who has been acting as mediator and succession planner. You have asked what would be the results if the plan was implemented." (Emphasis added.)
55. Mr Curley also recorded in the letter that "Leanne was fearful that transfers of land to Blake could put at risk her security over her own home". Mr Curley recommended to everyone that "it would be very sensible to document your expectations of how the arrangement would work". Moreover, Mr Curley emphasised that the parties should all receive independent legal advice and that "if any of you are not committed to the arrangement then it will fall through". This is the language of what might happen but which has not yet happened. There was nothing in Mr Curley's letter to which Leanne was obliged, or which she might have been expected, to dissent. Contrary to Blake's submission, the fact that Leanne expressed no dissent is in my view entirely unremarkable. Leanne's response in cross-examination to questions about this letter and her reaction to it was to say that "the letter was a statement of issues that had been discussed'. That explanation was unexceptionable and was not in my view in any way unsatisfactory as Blake contends. Leanne had no obligation in this specific context to disabuse Blake of any understanding that he may have had following the meeting with John Curley having regard to the terms of his letter.
56. Blake submitted that it is apparent that during the following period, the issue discussed between Leanne and Ray was whether Ray was going to retain a half share of Lynlee or whether Leanne was going to take both Westray and Lynlee. In essence, the second De Bomford meeting and the Andrew Tremain meeting concentrated on this issue "whilst confirming the agreement to provide Blake with a one-third share". Blake submitted that the effect of the Andrew Tremain meeting was that Ray agreed to give up his claim to Lynlee but on condition that the parties proceeded to put the partnership agreement into effect straight away.
57. Blake then submitted that "this is borne out by the facts". The meeting with Mr Tremain was in February 2013 and the meeting with Mr Job to set up the partnership was in April 2013. At that meeting, the parties agreed to set up the partnership to become operational. It was too late in the financial year to effectuate it fully and in the meantime, Blake was appointed sole signatory on the existing partnership account.
58. Blake contended that "importantly, as to the meeting with Mr Job, Leanne's evidence was not believable". He once again reverted to the proposition that his mother was "this determined and intelligent woman" whose credibility becomes suspect because she did not say, "Blake you are never getting a share of the partnership while I am alive". That submission is simply not maintainable having regard to Blake's own evidence that some months after the Mark Job meeting, Mr Job told him that he had spoken to Leanne and that she had "cancelled the partnership". The fact that Leanne attended or remained in the Mark Job meeting therefore recedes in significance, if it had any to start with. Leanne's evidence, that she stayed behind after the meeting to tell Mr Job that she did not agree with what had occurred in the meeting, is entirely consistent with the absence of a concluded agreement. I do not accept that the only reason Leanne would have done this would be because she knew that it had been agreed by everyone at the meeting to proceed with the partnership and she wanted to pull out.
59. The fact that Mr Job went ahead to register the new business name is of no significance. It is consistent with prudence on his part. Mark Job's letter of 30 April 2013 is not consistent with an agreement having been finalised.
60. In all of these circumstances, I am not satisfied that Blake has made out his case that Leanne agreed to include him as partner or to transfer a one-third interest in the partnership business or land. The separate question of whether it should be found that Leanne played such a part in the adoption by Blake of the assumption that she had so agreed or promised (including by taking part in the implementation meetings or refraining from informing Blake that she would never agree to provide him with the interest) so that it would be unfair or unjust if Leanne were left free to ignore it is the difficult matter to which I now turn.

Blake's estoppel claim

1. It is agreed among the parties that Blake's estoppel claim raises the following issues: 1. Did Leanne and Ray, on any of the relevant occasions, induce Blake to believe that he would receive an interest in the partnership and the family farm or that Leanne and Ray would transfer a one-third interest in the partnership and family farm to him? 2. Were the alleged inducements sufficiently clear and unambiguous to support an estoppel? 3. Did Blake rely on the alleged inducements to his detriment? 4. If so, was such reliance reasonable? 5. Is it unconscionable in all the circumstances for Leanne to resile from the inducements (if made)?
2. For the purposes of issue (1), the relevant occasions are as follows: 1. Discussions in 2008 and 2009. 2. The meeting on 2 August 2011 at Rural Biz. 3. The meeting in October 2011 with John De Bomford. 4. The meeting on 21 November 2011 with John Curley. 5. The meeting in early October 2012 with Andrew Tremain. 6. The meeting on 11 or 13 April 2013 with Mark Job.

Legal principles

1. Blake asserts that from 2008 to 2013, Leanne and Ray promised or assured him that he would receive a one-third interest in the partnership and family farm, and that he relied on their promises or assurances to his detriment, such that it would be unconscionable for them to resile from the promises or assurances. Framed in that way, Blake's claim raises a proprietary estoppel (in respect of land) and a promissory estoppel (in respect of partnership assets). The elements of these are similar.
2. For proprietary estoppel to operate, there must first be a representation (or assurance) by the defendant that an interest in land will be granted and secondly, reasonable reliance by the plaintiff on that representation, causing detriment to him and thirdly, circumstances making it unconscionable for the defendant to depart from the representation: Delaforce v Simpson-Cook [2010] NSWCA 84 at [55]; Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466 at 472; Waaka v Francois [2017] NSWSC 744 at [93]-[94], [102].
3. The elements of promissory estoppel were explained by Priestley JA in Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582 at 610 and approved in Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247 at [167]: "For equitable [promissory] estoppel to operate there must be [1] 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 [2] reliance on that by the plaintiff, [3] in circumstances where departure from the assumption by the defendant would be unconscionable."
4. These elements of assurances, reliance and unconscionability are substantially similar to the elements of proprietary estoppel, and have been explained in similar ways. For example, in Commonwealth Bank Officers Superannuation Corporation Pty Ltd v Beck [2016] NSWCA 218 at [178], Bathurst CJ said: "It is well established that to ground a promissory estoppel, the representation said to give rise to it must be clear and reasonably understood by the person to whom it is addressed: Legione v Hately [1982] HCA 11: 152 CLR 406 at 435-436; Foran v Wight [1989] HCA 51; 168 CLR 385 at 411, 435-436."
5. If the elements of estoppel (proprietary or promissory) are established, the question turns to what relief, if any, should be granted. Relief is discretionary and the following principles apply: 1. Assessment of "relief depends very much on the facts and … the Court must look at the circumstances in each case to decide in what way the equity can be satisfied": Delaforce at [57]. 2. Relief should go "no further than is necessary to prevent unconscionable conduct". However, "where the unconscionable conduct consists of resiling from a promise or assurance which has induced conduct to the other party's detriment, the relief which is necessary [to prevent unconscionable conduct] is usually that which reflects the value of the promise": Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 at [85]. On the other hand, "[f]requently, [the minimum relief required to prevent unconscionable conduct] may not extend to compelling the representor to fulfil the assumption or expectation" but merely to "compensating the representee for the detriment suffered": Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26 at [218]. 3. "[I]f a claimant's expectations are uncertain, or extravagant, or out of all proportion to the detriment which the claimant has suffered … the claimant's equity should be satisfied in another (and generally more limited) way": Delaforce at [69]. 4. "Relief may be refused or reduced if the plaintiff's equity has been diminished by later events. In Sledmore v Dalby [1996] EWCA Civ 1305; 72 P & CR 196F the Court held that the plaintiff's equity based on his improvements had been fully amortized over 18 years of rent free occupation": Delaforce at [61]. 5. "Relief may be moulded to recognise practical considerations such as the need for a clean break" (for example, to prevent an ongoing fraught relationship between the parties): Delaforce at [60].
6. Even in circumstances where a party has been unable to demonstrate that they are entitled to enforce an agreement made with another party by reason of the fact that the terms of the agreement are insufficiently certain, or that the evidence otherwise does not demonstrate that any agreement such as that alleged has even been concluded, that party may nevertheless be entitled to relief that largely equates to the benefit they would have received if they were able to establish that an enforceable contract had been concluded. In Evans v Evans [2011] NSWCA 92 at [121]-[127], Campbell JA said this: "[121] There is a measure of uncertainty about the obligation that Peter and Sophie undertook to make the weekly payments, in that it is not specified for how long those payments will last. However, a proprietary estoppel can be established even if the expectation that has been induced in the plaintiff contains elements that would be insufficiently certain to amount to a valid contract: Flinn v Flinn [1999] 3 VR 712 at 738-739 per Brooking CJ (Charles and Batt JJA agreeing); Galaxidis v Galaxidis [2004] NSWCA 111 at [93]-[94] per Tobias JA (Giles and Hodgson JJA agreeing). In Jennings v Rice [2002] EWCA Civ 159 at [44], Robert Walker LJ (Aldous and Mantell LJJ agreeing) observed: 'The cases show a wide range of variation in both of the main elements, that is the quality of the assurances which give rise to the claimant's expectations and the extent of the claimant's detrimental reliance on the assurances. The doctrine applies only if these elements, in combination, make it unconscionable for the person giving the assurances ... to go back on them.' At [46] his Lordship accepted that 'the claimant's expectations may have been formed on the basis of vague and inconsistent assurances.' [122] Giumelli v Giumelli (1999) 196 CLR 101 provides an illustration of how imprecision in a promise does not prevent a proprietary estoppel arising. In Giumelli, parents were found to have made a promise to their son that a particular rural lot: '... would be subdivided to create a lot on the northern section of the property to include the house and orchard if he agreed to stay on the property and not accept an offer to work for his father-in-law and, if the house and land could be subdivided, he would have the orchard as well.' [123] The Western Australian Full Court had ordered, on the basis of a proprietary estoppel, that the parents should 'do all things reasonably necessary to subdivide the ... property so as to create the promised lot'. Though the High Court held that that order was inappropriate, it was because people other than the claimant, in particular the claimant's brother and his family, also had claims to the land that had not been taken into account, and there was a need 'to avoid relief which went beyond what was required for conscientious conduct by Mr and Mrs Giumelli.' However, their Honours granted some relief on the basis of proprietary estoppel, saying that: '[t]his is a case for the fixing of a money sum to represent the value of the equitable claim of the respondent to the promised lot.' The boundaries of the proposed lot were not defined with the precision that would be required for a valid contract for sale, but the imprecision of the promise in that respect was not an obstacle to the granting of the equitable relief. [124] Similarly, in Sullivan v Sullivan [2006] NSWCA 312 at [85] Hodgson JA (Handley and McColl JJA agreeing on this point) said: 'Generally, a promise or representation will be sufficiently certain to support an estoppel if it was reasonable for the representee to interpret the representation or promise in a particular way and to act in reliance on that interpretation, thereby suffering detriment if the representor departs from what was represented or promised. Generally, if there is a grey area in what is represented or promised, but it was reasonable for the representee to interpret it as extending at least to the lower limit of the grey area and to act in reliance on it as so understood, I see no reason why the Court should not regard the representation or promise as sufficiently certain up to this lower limit.' [125] Although Australian Crime Commission v Gray [2003] NSWCA 318 concerned a promissory estoppel rather than a proprietary estoppel, it illustrates clearly the difference between equity's approach to the degree of certainty required for representation before it can generate an equitable estoppel, and the degree of certainty the common law requires of a promise before it can be contractual. ACC v Gray involved the representation made by a senior police officer to a man who had been involved in the laundering of drug money, and who was contemplating both collecting and giving evidence for the Crown. The representation was that 'neither you nor your wife will be financially disadvantaged' if they cooperated with the police and entered the witness protection programme. At [187] Ipp JA (Mason P and Tobias JA agreeing on this point) said that the plaintiffs must have understood the representations to mean that the promise that they would suffer no financial disadvantage 'was subject to the constraint of reasonableness', with that reasonableness judged in the light of certain contextual facts that Ipp JA listed at [185]. It was in that context that Ipp JA concluded, at [192]: 'In my opinion, there was no ambiguity in the promise that, subject to the constraint of reasonableness in the sense I have explained, Mr and Mrs Gray would not suffer any financial disadvantage. It might be difficult to work out what was reasonable and what was not, and what constituted financial disadvantage, but this does not give to the promise any element of ambiguity or lack of clarity sufficient to preclude a promissory estoppel arising. The element of 'reasonableness' requires an objective assessment; it is not an ambiguous term. The promise, as a whole, was unambiguous and clear, albeit that the monetary compensation required to satisfy the promise fell within a discretionary range and its determination was by no means a simple matter.' [126] In the present case, it would be open to the court if relief were eventually granted to Peter and Sophie, to clarify the temporal extent of their obligation and to quantify the obligation by reference to its temporal extent. In this respect I mention that the amount for which judgment was given in the cross-claim below was $31,280. There was no interest component in that sum. Thus, if it ultimately be relevant, the payments of $181,750 that they made prior to ceasing payments, when added to that judgment sum, exceeds the amount that Robert paid for the house. [127] For the reasons given above, if Peter and Sophie's evidence is accepted apart from the one aspect of Peter's evidence that was rejected, the judge was mistaken in concluding that their assumption that they had been given the house was not a reasonable one, in all the circumstances."
7. I note at this point that in his amended statement of claim, Blake has pleaded that he acted to his detriment "reliant on the agreement". It seems to me to be uncontroversial that this is intended to be a reference to his reliance upon his parents' promises or assurances or representations, even if they fell short (as I have found) of amounting to an enforceable contract. I propose to proceed in accordance with that understanding of Blake's pleadings.
8. I should also observe, in the context of a claim asserting a detrimental change of position in reliance upon assurances or encouragements falling short of an enforceable contract, that much, if not even most or all, of the evidence of Blake's supporting witnesses who said that Leanne confirmed the existence of an agreement in conversations with them, necessarily retreats in significance. Blake's estoppel case stands or falls upon the extent to which he can establish what he was told and what he did in response, not whether Leanne agreed that some result would follow. Indeed, the very nature of Blake's estoppel claim is that Leanne should be burdened with the consequences of her own conduct, whatever she might have intended, or even if she intended nothing, if he can demonstrate that he altered his position in reliance upon what she said and did and if it would be unconscionable for Blake's expectations to be defeated by permitting Leanne to avoid those consequences.

Blake's submissions

1. Blake made the following submissions about this part of his claims.
2. By reason of the promises made by Leanne and Ray and/or the actions and inactions of Leanne, Blake assumed as from October 2011 until July 2015 that he had an agreement with them, or that they had promised, to include him in the partnership and transfer a one-third interest in the land and the partnership assets to him. Ultimately reliance is a matter to be determined by reference to the inferences to be drawn from the whole of the evidence: Sidhu v Van Dyke at [64]. Blake says that he acted to his detriment in reliance on that assumption by foregoing the opportunity to pursue an alternative career and life, including the acquisition of his own real estate, by not pursuing compensation for unpaid work, and by continuing to work for the partnership for no, or no substantial, remuneration in the period between 2011 and 2015.
3. Blake says that his reliance was reasonable. The question of reliance needs to be considered in the domestic context: Construction Technologies Australia Pty Ltd v Doueihi (2014) 17 BPR 33,457; [2014] NSWSC 1717 at [222], [248]. It was reasonable for Blake to trust his parents. These were not dealings between commercial entities where it may be assumed that a complex written contract would be drawn up to document what had occurred. The impending property settlement between Ray and Leanne did not undermine the reasonableness of Blake's reliance. As far as he was concerned, Blake trusted his parents and they had it in their power to work out a property settlement between themselves in tandem with their promise to include him in the partnership.
4. In Sidhu v Van Dyke at [68]-[69], the High Court said: "[68] … In the respondent's evidence in chief she had said that: As a result of the [appellant's] repeated promise of the Oaks Property to me … I did not seek or engage in any full time paid work in the 8.5 years between January 1998 and July 2006 … [I]n the belief that I had a home in the Oaks Property, I chose instead to improve the Oaks and to repay the [appellant] in every way that I could using all the time and energy that I had for what I believed was his generous gift to me … I also lost the opportunity to obtain a property settlement from my divorce … [and] the opportunity to purchase a property for my son and me from money from my divorce settlement and salary from a full-time job. [69] That evidence was likely, as a matter of the probabilities of human behaviour to be true. Indeed it would be remarkable if the appellant's promises did not have some influence upon the respondent's decision to stay on and work at Burra Station. Upon the breakdown of the respondent's marriage, she was confronted with difficult decisions relating to the course of her life and the care and maintenance of her child. The appellant's promises were objectively likely to have had a significant effect upon the decision-making of a person in the respondent's position. The appellant's assurances were integral to his proposal to the respondent to put their relationship on a firm long-term footing. It is unlikely that she would have thrown in her lot with the appellant and exerted herself as she did over a period of eight and a half years if he had not made the promises which he in fact made. To the contrary, it is likely that she would have sought to maximise her own income for the benefit of herself and her infant son by seeking the most gainful form of employment." (Blake's emphasis added.)
5. Blake says that the present case is analogous. His reliance was likely as a matter of the probabilities of human behaviour. As in Sidhu v Van Dyke at [76], Blake submitted that the question in the present case (and the unconscionability of Leanne resiling) may be tested by the likely reaction if Leanne had said to Blake, "I am happy for you to remain on the farm without being paid any remuneration as long as you want, but it is completely contrary to my thinking ever to include you in the partnership or give you any share of my property whilst I am alive". Blake maintained that if that had been said he would have returned to his promising career in Newcastle, with the relatively minor loss of three years. No doubt, had he sought legal advice, he could have recovered compensation for his unpaid work.
6. The ultimate task for the Court is as stated by Deane J in Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39 at 445: "Ultimately, however, the question whether departure from the assumption would be unconscionable must be resolved not by reference to some preconceived formula framed to serve as a universal yardstick but by reference to all the circumstances of the case, including the reasonableness of the conduct of the other party in acting upon the assumption and the nature and extent of the detriment which he would sustain by acting upon the assumption if departure from the assumed state of affairs were permitted."
7. In the present case, all the circumstances must be considered, including the actions of Ray and Leanne in initially encouraging Blake to remain on the farm on the basis that it would be worth his while and the subsequent promise to include him in the partnership and transfer a one-third interest in the partnership assets and land to him. In all the circumstances, including the reasonableness of Blake's reliance and the extent of the detriment which he would sustain if departure from the assumed state of affairs were permitted, he contended that it is unconscionable for Leanne to be permitted to depart from the assumption.
8. Moreover, Blake submitted that all of the evidence upon which he relied in support of his claim that Leanne had agreed to bring him into the partnership in the way he alleges was equally relevant and important to his claim based upon an estoppel. In short, even if the things that were said and done by Leanne were, as I have concluded, incapable of establishing an enforceable contract of the sort Blake asserts, they are nevertheless relevant in establishing the representations and inducements made to him to remain working on the family farm for the partnership prior to the De Bomford meeting in 2011. These are the things referred to in his affidavit at paragraphs 60, 70, 73, 89 and 91, already set forth above at [16], [22], [23], [25] and [27] respectively. Blake submitted that Leanne and Ray initially induced him to keep working for the partnership and on the farm without remuneration on the basis that they would provide him with some benefit. Blake emphasised that this all forms part of the matrix of circumstances that needs to be considered in deciding whether it is unconscionable to permit Leanne to resile from the 2011 promise.

Leanne's submissions

1. Leanne made detailed oral and written submissions. In the nature of things, these submissions did not clearly distinguish between Blake's contractual claim and his representation or inducement claim. That is understandable having regard to the way in which Blake has sought to make out his case based on unconscionability. Moreover, when Leanne's submissions were formulated, I had not, as I have now, rejected Blake's contractual claim. Accordingly, notwithstanding my decision on that part of the proceedings, Leanne's submissions are set out below without any attempt to distinguish between these two things.
2. Leanne submitted that an alleged promise to transfer land or partnership assets to Blake is improbable given the following.
3. From May 2008 to 2 April 2011, Jordan was battling cancer. It would have been highly insensitive, while Jordan was still alive, for Leanne to promise assets to Blake on the assumption that Jordan would die. Leanne says she did not do so. Her focus was on Jordan's treatment and care.
4. From 2008, Leanne encouraged Blake to take a paying job away from the family farm, because she and Ray did not get on, the farm owed a lot of money, and she was uncertain what arrangements she and Ray would ultimately reach in terms of a property settlement. In 2010 she again encouraged Blake and Ray to take off-farm jobs. It makes little sense that Leanne was simultaneously making contradictory promises or assurances aimed at keeping Blake on the family farm.
5. It was not Leanne's belief structure to pass on assets whilst she was alive, because she knew of others, including her own grandmother, who had done so and regretted it.
6. From 2008 until 4 July 2013, the Federal Circuit Court proceedings were on foot that would determine Leanne and Ray's ownership of assets. Leanne was uncertain about what her final position would be and was unlikely to promise assets to Blake until those proceedings were finalised.
7. The point of the Federal Circuit Court proceedings was for Leanne and Ray to achieve financial separation. Leanne had no reason to remain financially tied to Ray, whom she had divorced and disliked, through an ongoing partnership and co-ownership of land. As she further explained in cross-examination: "The main reason or one of the many reasons I didn't wish to enter into an agreement with Blake was that I did never ever wish to be tied to Ray Cannon financially - land wise, asset wise, anything - for any further period of time in my life."
8. Leanne did not want assets passing to Danielle if Danielle and Blake separated. No terms were agreed upon, and no agreement had been drawn up, to protect Blake's assets from Danielle.
9. The parties attended six meetings with no agreement ever drawn up or signed or any transfer of assets taking place. Had Leanne made promises or given assurances as alleged, those things would have occurred.
10. Blake also relies on contested conversations from 6-8 years ago. In Watson v Foxman (1995) 49 NSWLR 315 at 319, McLelland CJ in Eq observed that: "…human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience."
11. Given the limits of human memory, Leanne emphasised that my factual findings should be based, as far as possible, on contemporary materials, objectively established facts, and inherent probabilities, taking into account the motives of witnesses: Lukaszewicz v Polish Club Limited [2019] NSWSC 446 at [18]-[20]; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at 129.
12. Further, as observed by Hammerschlag J in John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451: "[94] Where a party seeks to rely upon spoken words as a foundation for a cause of action, including a cause of action based on a contract, the conversation must be proved to the reasonable satisfaction of the court which means that the court must feel an actual persuasion of its occurrence or its existence … In the absence of some reliable contemporaneous record or other satisfactory corroboration, a party may face serious difficulties of proof. Such reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved to the reasonable satisfaction of the court."
13. In the present case: 1. Blake's allegations are serious. The current market value of the land (excluding the "Woolshed Block", which Leanne and Ray do not own) is $4,020,000. The market value of the partnership's stock, plant and equipment is $333,000 (excluding livestock not valued and a disputed tractor). A one-third share in each of those would be worth $1,451,000. An undocumented promise to transfer assets of that value is inherently unlikely. Absent contemporaneous records or satisfactory corroboration, the Court would not find the promises or assurances were made. 2. The absence of supporting documents, including communications, is remarkable. The promises are said to have been made between 2011 and 2013. Yet, prior to 4 June 2015, not a single text message or email passed between Blake and Leanne referring to the alleged promises. This was despite Blake texting Leanne throughout 2014 regarding day-to-day farming matters. Blake's email to Leanne on 4 June 2015 and his follow-up email of 6 July 2015 do finally assert a failure to honour the alleged agreement or promises, but these emails are not contemporaneous and were drafted on legal advice to shore up Blake's forensic position. Leanne's response of 15 July 2015, written on her behalf by a rural counsellor, was less emphatic than it might have been, but consistent with her position throughout: she was not prepared to enter any arrangements (promises or agreements) outside a property settlement context. 3. There is no satisfactory corroboration of the alleged promises: 1. Ray is an interested party whose recollection of meetings did not match contemporaneous records, such as Mr Curley's letter of advice. He was reluctant to concede his recollection may be wrong, despite earlier conceding that his memory has been weaker since his heart attack in 2012. He could not satisfactorily explain why multiple meetings with facilitators were required (including Andrew Tremain to help Leanne feel "comfortable") if agreement had already been reached as he alleged. He could not recall if he had read Blake's affidavit, then conceded that he had. He also conceded that two conversations set out in his affidavit (from April and June 2013 - the former contentious, the latter less so) were almost identical with the same passages of Blake's affidavit, yet he emphatically and implausibly denied they had been copied. Copying and pasting portions of affidavits is "totally destructive of the utility of evidence by affidavit": "affidavit evidence of a witness which is in the same words as affidavit evidence of another witness is highly suggestive either of collusion between the witnesses or that the person drafting the affidavit has not used the actual words of one or both of the deponents. Both possibilities seriously prejudice the value of the evidence": Zagame v Zagame [2014] NSWSC 1302 at [70]; Macquarie Developments Pty Ltd v Forrester [2005] NSWSC 674 at [89]. 2. Mr Walker, Blake's former boss at Hays, properly conceded that he could not recall the details of what Blake said he had been promised, such as whether it involved inclusion in the land or just the partnership, or inclusion as manager, or whether any offer or promise had been made by either or both parents. 3. Mr Campbell-Rogers said that in 2010 to 2012, Leanne used phrases such as "it's great having Blake home" and "it's good to have him as a partner" (present tense), suggesting "partner" simply meant a work partner (colleague). Mr Campbell-Rogers insisted Leanne had used racist language towards Danielle in early 2014, but conceded he could not recall whether Leanne used terms that assumed she had an agreement with Blake, Ray and Danielle. While Leanne strongly disliked Danielle, no witness corroborated her alleged use of racist language. 4. Corina Barnes was adamant that in mid-2012, Leanne said: "We've got three homes on the farm, we're going to split the farm three ways". Objectively, that does not make sense, as the family farm has either two or four homes, not three: the Westray home, the Lynlee home, the Westray farm stay and the Westray cottage. The alleged "split" also suggests a division of property rather than co-ownership as Blake now contends. It is likely Ms Barnes is simply mistaken about a "very brief" casual conversation 7.5 years ago. She conceded she could not recall precise details of the conversation and may have combined two conversations. She also came in part-way through the conversation. If Leanne talked of a three-way split at all, it is likely she raised it only as a possibility (and mentioned Blake had done good work), and what Ms Barnes remembers is simply her reaction that such a split was a bad idea. 5. John De Bomford says that the only property that was discussed as being transferred to Blake was the Lynlee property. He has limited recollection of the meetings he chaired, and his involvement was explicitly to help Ray and Blake with their succession plan. In cross-examination, John De Bomford said "Lynlee was [the] property that was the one that was sort of discussed as the simplest, easiest transaction, it was a separate title, he [Blake] was living there, so that was the property that was, was discussed for transfer". John De Bomford said he did not recall any discussion about Ray and Leanne transferring a third of Westray, Bulgandramine or Lynlee. John De Bomford told them to seek professional advice before making a final decision. 6. In his affidavit, Andrew Tremain denies that any agreement was reached at the meeting he chaired. Under cross-examination, he rejected the suggestion that Leanne agreed to move ahead with the partnership straight away in exchange for Ray giving up his claim in relation to Lynlee. Mr Tremain presented as an intelligent and forthright witness. 7. Mark Job could not recall whether the parties contributed equally to the discussions at the meeting on 11 April 2013. He could not recall if Leanne spoke to him after the meeting or telephoned him a few days later. He accepted that his letter of 30 April 2013 assumed the parties had not yet decided to enter a three-way partnership. His covering email on 7 May 2013 attaching his advice advised the parties they needed to digest his advice and have further discussions before proceeding. He properly conceded that, because of unresolved matters, the parties had not yet agreed to proceed.
14. Leanne next drew attention to the fact that there are no contemporaneous documents to support Blake's case. Where contemporaneous records exist, they support a conclusion that Leanne made no promises or assurances about transferring land or assets to Blake. For example, Leanne's email sent after the Rural Biz meeting in August 2011 states: "I also stated that I wanted half the land, half the debt, nothing more and nothing less. I also stated that I was not interested in a succession plan at this meeting." Leanne was making it clear at and after the meeting that she had no intention of transferring any assets to Blake.
15. I pause to observe that Blake was cross-examined about the Rural Biz meeting. He gave this evidence: "Q. After the Rural Biz meeting you were concerned, weren't you, that Leanne had not yet committed to compensate you for the work you had done on the farm? A. That, that wasn't really my concern. My concern after the Rural Biz meeting was just the way that, the way we were looking at restructuring it. I didn't think it - I, I thought it had some really difficult practical implications. Q. You weren't happy with the Rural Biz proposal? A. I, I was fine with the fact I was being, being brought in, but look I, I thought the way that it was going to be structured would be difficult to be workable for all three parties. Q. And you didn't think you were bound to any agreement you made at Rural Biz meeting? A. Look, it - we, we, I guess we'd, we'd - I'd, I'd witnessed a verbal commitment in that meeting from both my parents, which was the first time that had occurred in front of independent witnesses. Q. But you didn't feel that you were liable to any commitment you made at that meeting? A. Well, look, we'd, we'd discussed it. But if, look, if the other two parties had have said we'd agreed to that, well, I would have had to I guess. But the reality was all three of us had concerns from that meeting, so we went on to discuss it further. Q. I mean, really that meeting was just a discussion about possible ways in which you could be compensated, wasn't it? A. No, it wasn't. It was, it was two parts. It was the a.m., my understanding and recollection, it was related to the divorce and that's why I wasn't invited to that, and then I was there in the p.m. session to discuss the succession planning aspect. Q. And the nature of that discussion was a discussion about possible ways in which you could be included? A. Yes. Q. Without any final decision being made which you believed bound all of you to commit to any of those ways? A. Well, look, there was a final - there was certainly a final decision made and it, and it was agreed, but it was, it was clear to me in the meeting that it, it was going to mean some big changes and, and we all had some concerns. You don't solve an issue this complex entirely in one meeting, but what I Q. So you A. what I did receive was a commitment from my parents. Q. Well, you say you received a commitment, but the fact is you then arranged another meeting, didn't you? A. I don't, wouldn't say I arranged it. Both my parents spoke to John de Bomford, as did I. So I wouldn't say I instigated the meeting." (Emphasis added.)
16. Leanne's note of the first De Bomford meeting in October 2011 refers to a 50:50 split of assets between her and Ray and does not mention a one-third partnership or any transfer of assets to Blake. Blake and Ray accepted that the note reflected matters agreed at the meeting, but could not explain why it does not record other matters they say were agreed. Further, while Blake received the document after the meeting and made handwritten additions to it (regarding Leanne's share portfolio), his additions make no mention of any promise or agreement to transfer assets to him. Had any agreement been reached (in his favour), his handwritten additions would have referred to it. Leanne's evidence that no agreement was reached is the only evidence supported by a contemporaneous record.
17. Blake says he "wrote down what was discussed … [s]hortly after" the first De Bomford meeting, but he did not produce his notes. Ray says he (Ray) did not take "significant" notes, suggesting he may have made some. It may be inferred these notes would not have assisted Blake's case that promises or assurances were made to him at the meeting: Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8.
18. Mr Curley's record of the meeting on 21 November 2011 notes the parties had "asked what would be the results if this plan [Ray and Blake's succession plan] is implemented", and suggested "the first step is to make contact with a solicitor once you are comfortable about the likely outcome". Plainly, no agreement had been reached: the parties were simply exploring options, and had not even taken the "first step". Blake's assertions to the contrary (and to the effect that what was discussed at the meeting was equal-thirds ownership of all the land) are inconsistent with the clear language of the letter and should be rejected.
19. Blake says he "did take some rough notes" of the second De Bomford meeting in October 2012, but he did not produce them. Again, it may be inferred that these notes would not have assisted Blake's case that promises were made to him at the meeting: Jones v Dunkel.
20. Ray's note of the second De Bomford meeting records the agreed terms of a property settlement with Leanne, then refers to a possible partnership restructure and conditions that would apply "if this [restructure] happens". Thus, even Ray, who was pushing for the restructure, did not record that it was agreed to: this was a case of "if" it happened, not "when". His assertion that an agreement was reached, contrary to the terms of his own note, was not to his credit. Leanne's note of the meeting refers to her property settlement with Ray, but does not mention transferring assets to Blake. Leanne's evidence that no agreement was reached is the only evidence consistent with the contemporaneous records.
21. On 31 October 2012, Leanne's family law solicitors reported that Ray offered, at a conciliation conference, to buy out her share in all land and partnership assets for around $1.5 million. That offer was inconsistent with any promise or agreement that Leanne, Ray and Blake would become equal one-third owners of the land and partnership assets.
22. Blake's "minutes" of the meeting with Andrew Tremain on 16 February 2013 were written after the meeting. To the extent they record any agreement, the horizontal line and arrow (separating property settlement matters from other matters) indicate there was agreement as to Leanne and Ray's property settlement but not to anything else. Had other matters been agreed in Blake's favour, he could easily have circulated and asked the attendees to sign these "minutes". He did not do so.
23. Mr Job's letter of 30 April 2013 in relation to the meeting on 11 April 2013 advises on what would happen "if you [Ray, Leanne and Blake] decide to operate as a partnership". That implies they had not so decided. Consistently with that, the letter notes that if they did so decide then a written partnership agreement would be needed and they would need to consider other matters such as the amount of debt to be transferred to Blake (in the event of any land transfers) and associated loan documents. Mr Job's covering email of 7 May 2013 (attaching his letter of 30 April 2013) further stated: "we will need to discuss this further as every angle cannot be covered in a letter". This is inconsistent with any agreement being reached. No further discussions with him occurred. The registration of an ABN for a proposed partnership between Blake, Ray and Leanne was done at the behest of Mr Job, Ray or Blake, not Leanne, as Mr Job conceded.
24. Finally, several witnesses corroborate Leanne's version of events.
25. Andrew Tremain was present in a meeting between Leanne, Ray and Blake. He says that possibilities for compensating Blake were discussed but "there was no agreement on this point and it was left that each parent would need to come to an agreement with Blake as to how he was to be compensated". In cross-examination, he rejected the suggestion that Leanne agreed to move ahead with the partnership straight away in exchange for Ray giving up his claim in relation to Lynlee.
26. Phillip Leary (a close friend of Leanne) said that Leanne said to him on several occasions that "I would never transfer hard assets to my children while I'm alive. I don't want to end up like my Nanna, who signed her land over to her youngest son. That ended badly for her." In cross-examination, Mr Leary maintained that position. He said "normally she [Leanne] would say 'I had not - never made a promise to transfer assets.'"
27. Peter Maher (a youth officer and Leanne's former de facto partner) said that Leanne told him after several meetings "I won't be in a position to consider any potential succession plan with Blake until the property settlement is over" and "Ray and Blake wanted to talk about a succession plan. They were trying to get me to agree that Blake would take over the farm from me and Ray. I didn't agree to it though" and "I didn't agree to the new partnership they were proposing". Mr Maher answered questions directly under cross-examination. His evidence was unshaken.
28. Elizabeth May Knight (a close friend of Leanne) said that Leanne told her in 2011 that "Blake and I are in firm agreement about the property settlement being 50/50". Between 2011 and 2013, Ms Knight had several discussions with Leanne where she made comments such as "I don't want to sign over my assets to Blake" and "He will have to wait until I die to get a share of the farm". Under cross-examination Ms Knight said "I recall that Leanne said very clearly and consistently she wanted a 50% share in the property and that Blake would have to wait until she died to get his share."
29. Leanne submitted that for those reasons, I would accept Leanne's evidence that during the various meetings, she listened to Ray and Blake's proposals but did not agree to them. Any promises were made by Ray, not Leanne. Absent proper corroboration, I would not be satisfied that Leanne made the alleged promises or assurances. Blake may have hoped, with Ray's encouragement, that he would be given a one-third interest in the land and partnership assets, but Leanne did not promise this or encourage him to believe it would occur.

Blake's cross-examination

1. The conversations that Blake relies upon as assurances made or given by Leanne to him are specifically dealt with by her in the following paragraphs of her affidavit dated 7 March 2018: "124. (60) I deny making any promises the type of which are alleged by Blake in this paragraph ('Hang in there', 'It will be worth it for you', 'The sacrifices will be worth it down the track'). I do not know what Ray may have said to him but I did not make any such promises. … 134. (70) I have no recollection of ever telling Blake the things attributed to me in this paragraph ('The farming business will be yours one day', 'You are working for yourself', 'The sacrifices you are making will be worth it down the track'). I have never said or thought such things. By the time Blake alleges these conversations were occurring (throughout 2009), Ray and I were separated and did not like each other very much. Jordan was battling cancer and my focus was on his treatment and care. I did not discuss any property settlement issues whilst Jordan was alive. I always thought it would be best if Blake pursued an off-farm career. … 137. (73) I deny saying the words attributed to me by Blake in this paragraph ('You are working for yourself', 'This will be yours', 'Hang in there'). I have never said anything of the sort or thought it. … 154. (89) I deny ever uttering words attributed to me in paragraph 89 of Blake's affidavit ('you'll be included in the partnership and the land so you can stay on the property and it will provide a future for you'). I had always recommended to Blake that he take the position originally offered to him as I considered the farms in Peak Hill not big enough to support everyone and that they were carrying too much debt. Jordan was still alive and working on the farm. I did not have this conversation. … 156. (91) In relation to the words deposed to in paragraph 91 of Blake's affidavit, the expression 'what is mine is yours' is one I use quite commonly, towards both friends and family?. I deny ever saying the words thereafter attributed to me ('it will be you who benefits from our properties at Peak Hill and West Timbie' etc). The expression 'what is mine is yours' is an expression that I use with lots of people, and in my mind it has a similar meaning 'make yourself at home'. In other words it means 'please feel free to borrow my car if you need to, please feel free to take food out of my fridge if you are hungry'. Blake knows the meaning I attribute to this phrase because I have used it in his presence (towards both friends and family) many times over the years? He is taking it completely out of context in paragraph 91 of his affidavit."
2. Leanne's denials are the important denials as Ray was sympathetic to Blake's claim.
3. Blake was cross-examined about his understanding following or during discussions at the meeting with John Curley in 2011 that he was to be brought into the partnership on the terms that he now asserts: "Q. You say, do you, that the promise made to you was that you would have a one third interest in all of the farming properties? A. In each three property, that's what I'm saying. Q. In each of the three? A. Yeah. Yeah. Q. You'd been a one third equal owner of all of Lindley? A. Yes. Q. One third equal owner of all of Westray? A. Yes. Q. And a one third equal owner of all of Bulgandramine? A. Yes. Q. How many acres is all of Bulgandramine? A. Look, the - my understanding is the Bulgandramine property itself is about 2,200 acres and then the woolshed block I think is about 160 odd acres. Q. You say that the commitment made to you was that you would have a one third share of all of the 2,200 acres? A. Well, and the, and the woolshed. Q. Yes. A. Yeah, that was my understanding definitely. Q. What's proposed here is not that you have a one third share of all of the 2,200 acres, that you're an equal one third own of all the 2,200 acres. Rather what's proposed is that you have a 100% of 800 acres only? A. That's what's proposed here but, look, my understanding at the time was 800 acres was approximately one third of the property. Q. What I want to suggest to you is that your understanding of what you were told back in 2011 is incorrect? A. I'd disagree. Q. In fact, the proposals were constantly changing as to what you might get? A. The commitment I received from both my parents to be brought in didn't waver. The mechanics of how it occurred was something we had to, we had to go through the process of. Q. At each of these meetings possibilities were discussed of compensating you but nothing was finally agreed? A. I had a clear commitment I was being brought in, but this was - keep in mind this was one of the earlier meetings, so we were working through the implication to that occurring."
4. Blake was further cross-examined about the outcome of the John Curley meeting to the following effect: "Q. You were annoyed with Leanne that she wasn't agreeing to transfer the land to you? A. When, during that meeting? Q. After that meeting? A. Or what are you referring to? Q. After that meeting? A. No she - I didn't, I did - I wasn't annoyed with her at that meeting, after that meeting. Q. By this time Ray had agreed to transfer some land to you but it wasn't clear what that land would be, was it? A. I had a commitment off both of them that I was going to receive one third. Q. At this meeting you told Leanne - or after this meeting sorry you told Leanne you were upset that no agreement had been reached. A. I was upset that that meeting wasn't as productive as I thought it could've been 'cause in that meeting Leanne had a problem for every solution John had. Q. Did you think she was stonewalling? A. No, I just thought she was being difficult which is how she is."
5. He went on to elaborate: "Q. Can you explain what you mean by being difficult? A. She had concerns and, and, and some of them I, I had no dramas with, some of them were legitimate and look we had to discuss that but I, I thought she was, I thought she was being difficult. I thought - John made it fairly clear early on in the rollover provisions that what we wanted to do could be achieved and I, I felt that she was complicating things perhaps is a better way of describing it to you or, or just being, being a bit hard. Q. You said before I think proposing problems rather than solutions, maybe you didn't use that phrase but is that how you saw it? She was putting it A. I said - what I said was she had a problem for every solution. Q. Right, and so after that meeting you told her that you didn't want to waste farm money paying for Mr Curley's time? A. Yes, that is what I said yes. Q. You thought it was a waste of Mr Curley's time because she proposed a problem for every solution rather than get on with documenting the agreement? A. I thought she, I thought she could've been more productive during that meeting."
6. Blake was then cross-examined about the John De Bomford meeting: "Let's move onto a meeting you had with Ray and Leanne and John de Bomford in October 2012. Do you recall having a meeting with those people on that occasion? A. Yes. Q. You and Ray arranged that meeting? A. No, I didn't arrange the meeting. The meeting came about because John came to the ram sale in late September of that year and he spoke to all three of us individually about progress and suggested that we meet again. Q. You weren't happy with the outcome of the previous meeting with Mr Curley, were you? A. I, I wasn't entirely happy, no. Q. You were happy to agree to another meeting? A. Yeah, I think all of us thought it was an important step given the amount of time that elapsed. Q. At that time Leanne and Ray still had not finalised their property settlement, had they? A. No. Q. Leanne told you her purpose in attending the meeting was to try to do that, finalise the property settlement? A. Look, she'd, she'd told me that we needed to, as dad had said the same, that we needed to have another meeting to, to clear up some of the issues we were unsure about from the previous meeting." (Emphasis added.)
7. Blake was then asked about the note, attached to his affidavit, that was prepared by Leanne after the second John De Bomford meeting on 2 October 2012. He gave the following evidence about this: "Q. There's nothing in this note about transferring anything to you, was there? A. Not in this note, no. Q. There was no agreement reached to transfer any part of Westray or Lindley to you, at that meeting, was there? A. Yes, there was. Q. You sat in at the meeting, you believed that part of the agreement you reached was that one of you would speak with a solicitor? A. Immediately after the meeting, do you mean? Q. You say part of the agreement you reached at the meeting was that one of you would speak with a solicitor? A. We're in the second de Bomford meeting you're referring to? Q. Yes? A. Yeah, John had mentioned that we need to speak to a solicitor, yes. Q. But you didn't speak to a solicitor at that time about transferring any assets to you? A. Not at that time, no. Q. The truth is no agreement had been made about transferring assets to you? A. Incorrect. Q. Both Ray and Leanne told you they were focussed on finalising a property settlement, not transferring assets to you? A. Incorrect."
8. Attached to Leanne's third affidavit dated 7 June 2018 is the letter to Leanne from her family law solicitor dated 2 November 2012, notably just one month after the meeting with John De Bomford. It is in the following relevant terms: "We confirm we attended with you at the Federal Magistrates Court of Australia at Parramatta on 31 October 2012 for a Conciliation Conference. We met you at 9.30am and 11:00am for Conciliation Conference. We note that you and your husband had discussed an agreement where you would put all the properties in a Trust and operate it as a farming business. We confirm we explained to you that simply was not a viable alternative. Your husband was clearly very, very angry when he attended the conference. Registrar Kimorley, although late in commencing the conference, spent a considerable amount of time with both you and your husband and the Lawyers. The end result of the conference was that your husband was proposing an equal division of assets. We did not agree that your bank accounts, shares and your superannuation should be included as they were after acquired assets. Your husband proposed that he would pay you a sum somewhere around $1.5 million (although in doing a careful appraisal of the assets and liabilities it would appear that sum is more like $1,438,000.00) and you would transfer all of the properties and your interest in the farming partnership to the husband and he would refinance all the debt into his sole name. You and I both agreed that this was not a financial proposal that would end well for the husband but nonetheless that is what he wished to do. Apparently his family are going to help him to do this. He doesn't have final approvals for the monies to pay you and the refinance. I pointed out the default provisions, if that was the agreement, would result in the immediate sale of all partnership assets if he did not pay the money on time so that the debt could be reduced to nil and then a more leisurely sale of the real property. The other alternative put was for the sale of all property and the partnership assets, the paying out of liabilities and an equal division of the net proceeds. The third option put was that you would take Westray and Lynlee and half the debt and your husband would receive Bulgandramine and take half of the debt and you would split the assets of the partnership equally. Your husband, having been finally forced into a position where he has to do things he does not want to do did not behave well in a joint conference with the Registrar, the Solicitors and you and your husband. You were clearly very distressed but your husband basically indicated he did not want to be there, people were making him do things he did not want to do and he didn't see why you wouldn't just hand over all of your interest in the assets to him and your son. This is not untypical of all farming cases that I have ever been involved in. I had lengthy discussions with the Solicitor for the husband. The matter is before Federal Magistrate Henderson on 16 November 2012 for mention. The husband will need to confirm he has monies available to pay you the sum that we have spoken about, agree to one of the other two options or decide to run a Hearing. I do not think that running a Hearing would end well for your husband. His personality would certainly come out in the witness box and I do not think Federal Magistrate Henderson would appreciate his view on the role of women. We have forwarded you a letter written to the husband's Solicitors setting out our understanding of the positions. We are waiting to hear back from them. We thank you for your instructions and enclose our account to date for your kind attention. We reiterate our comments to you that you should stop listening to your husband and refuse to discuss the property settlement matter with him. If he wishes to negotiate he has a Solicitor and he should speak to that Solicitor who can then speak to me."
9. Blake was asked about what was referred to in that letter as follows: "Q. I want to show you a letter written after that conference, go to tab 23 page 479 of the second volume? A. 479? Q. Yes? A. Yes. Q. That's a letter written to Leanne after the conference. I expect you haven't seen it before. You may've seen it now, but you wouldn't have seen it at the time. I just want to use it to refresh your memory. Can you see halfway down that first page, there's a reference to $1.5 million? A. Yes. Q. The letter states that 'Ray proposed he would pay Leanne $1.5 million and Leanne would transfer all the properties and her interest in the farming land to Ray', can you see that? A. Yeah, I can see that, yes. Q. Ray told you about that proposal at the time? A. No, I wasn't there. Q. I appreciate you weren't at the meeting? A. Yep. Q. But Ray told you about the proposal around about that time? A. After the fact, they both told me about the proposal. Q. After the meeting? A. Yep. Q. Did Ray tell you about the proposal before he had the meeting? A. No, I was shocked to hear that there was any proposals, because it wasn't my understanding of how it was going. Q. If you look at the next paragraph, you can see another alternative was put to sell all the property and divide the proceeds between Ray and Leanne, can you see that? A. Yes. Q. Ray and Leanne told you about that proposal as well, after the meeting? A. They told me it was discussed afterwards, yes. Q. You knew, didn't you, from that time that there was a real possibility from at least that time that the farm would be sold altogether? A. No, I didn't believe it was and I - look I - once I heard about what went on in this matter, I rang both of them, because it was - it was different to what we had in the de Bomford meeting shortly prior to it. And had discussions with both of them. So yeah, look I-- Q. They told you, didn't they, that if they couldn't reach an agreement this is what would happen? A. I was under the understanding we had reached an agreement. Q. This made you think again, didn't it, about having an agreement with them once you heard about this? A. Look I wondered what, what had transpired, and it was hard for me because I wasn't there. So I was hearing each individual's perception of it, rather than being there and seeing it for yourself. Q. But both of them told you that the possibility was discussed of selling the farm? A. Well, the possibility was also discussed of dad buying her out-- Q. They told you both possibilities were discussed? A. Both of them had told me there were both possibilities discussed. I recall ringing Leanne, discussing it with her, and I was - I was somewhat frustrated, because I was at home running the farm and this was deviating away from the direction I thought we were all heading. And she hung up on me, which I found disrespectful, given I was working on the farm. So, I, I do recall that. I also spoke to dad and wanted to know why, why he was looking to buy her out. He said he thought it would simplify it. Q. He thought it would simplify it? A. Yep. Q. From this time you were having real doubts, weren't you, that the farm would proceed, that the farm would remain in the family's ownership? A. No, I didn't have doubts that it was going to be sold. I didn't think - I didn't think that that was realistic. I didn't think it was - even though it had been discussed, I didn't - I knew deep down neither of them wanted that, so. Q. Although they were telling you it was both a possibility? A. Well it's documented here as a possibility. But it's not what they were telling me. Q. They told you the possibility was discussed at the meeting? A. Yeah, they said the possibility was discussed at the meeting. But they never - I knew - I knew they didn't want that. And they never discussed that with me around this time about selling the assets. Q. I want to suggest to you you're saying that now, but at the time, you thought there was a real possibility the land would be sold? A. Incorrect."
10. Blake was next asked about the February 2013 meeting with Andrew Tremain: "Q…I just want to ask you about your recollection of the meeting. Do you agree that at the meeting Leanne said she'd have Westray and Lindley, Ray would have Bulgandramine and the debt would be split 50/50? A. That was said in the context of the divorce, yes. Dad went into that meeting with 50% of Lindley, I think it's important to document. Q. Do you agree that there was no agreement as to how you would be compensated, at that meeting? A. Disagree. Q. What Leanne said was, some arrangement would need to be made to make it fair and equitable, but nothing was agreed? A. Disagree. Q. You told everybody you wanted a share of the land and the partnership? A. I, I - look, I probably did mention that. But Leanne made it clear to me that she was still happy to give me one-third of her assets in that meeting. Q. Leanne told you she wasn't happy with that, that she was not prepared to be in a position whereby if Blake and Danielle separated, if Danielle would have a claim over the farm assets? A. Look that was - that was a genuine concern of hers. But it, it had been dealt with in the discussions, the way we were going to get around that. Q. She told you her concern remained though, didn't she? A. In that meeting, look she - I, I think she did say that that was a concern. And I, I think I did mention that Danielle was happy to sign a pre-nup if required. Q. She also told you that she didn't want to be put in the same position as her grandmother who gave the farm to her son and eventually ended up with no money and no house? A. That would be Andrew's father. Q Yes, do you remember her saying that? A. That was said, yes."
11. It was at this stage of the proceedings that there was a short exchange between me and Mr Balafoutis, which was provoked by some of Blake's cross-examination. That portion of the transcript is as follows: "BALAFOUTIS: At the end of the six hours, there was no agreement as to how you were to be compensated, isn't that right? A. There was a definite agreement. That's what my father conceded, the property Lindley that he went into that meeting with, his, his 50% share of that property. Q. After this meeting-- HIS HONOUR: Mr Balafoutis, I know that Mr Tremain the deponent of the affidavit is not here, and he's not being cross-examined, and I'm talking about his words. But just from your point of view, what do you understand Mr Tremain's references to Blake being compensated to be a reference to? BALAFOUTIS: Compensation for the work that he'd done in the previous years. HIS HONOUR: Again, I haven't read this. Does it say that, does it? BALAFOUTIS: It does not. But I'm taking it in the context of the matter, and so on, and compensation is generally talked about. It was certainly a live issue at all times that Blake had worked for previous years and not received a large income. HIS HONOUR: I was just wondering if it extended? I'll just put the parties on notice that I'll want to have some argument in due course, and Mr Tremain might be cross-examined about whether that, on any view, can be a reference to compensation for his change of position, that's all. Could the parties flag that as something that I want some help with?"
12. Blake was next questioned about the meeting with Mark Job in April 2013: "Q. She continued to raise concerns with the proposal of transferring a third of the land to you. A. She had some concerns with the mechanics of doing it, not with the agreement itself. Q. And she made it clear to you that she didn't even agree to transferring a third of the land to you. A. Incorrect. Q. In this meeting - and I'll just ask you to go to page 249. A. Of volume 1? Q. Yes, on the same folder you're looking at, 249. Now look at this letter, which would sent shortly after the meeting. A. Yes. Q. In the fourth paragraph it says, "If you decide to operate as a partnership, a partnership agreement should be drawn up." Can you see that? A. Yes. Q. You never instructed a solicitor to write a partnership agreement, did you? A. No. Q. As far as you're aware neither Ray nor Leanne instructed a solicitor to write a partnership agreement? A. No. Q. That because Leanne made it clear to you that she wouldn't operate a partnership with Ray? A. Incorrect. Q. In the final paragraph there's a reference to the amount of debt that will need to be transferred; can you see that? A. The final paragraph o 249? Q. Yes. A. Yes, there is a reference to the debt. Q. There was never any agreement about how much debt should be transferred, was there? A. Yes, there was. It was discussed that I would get a third of the, a third of the asset and a third of the debt. Q. That's nowhere in this letter, is it? A. Not in this particular letter. Q. It's nowhere in your first affidavit? A. No, I don't believe it is. Q. In the next sentence there's a reference to loan documents that need to be drawn up? A. Sorry, on the next page are you saying? Q. No, the next sentence of page 249? A. Yes. Q. There was never any loan agreement drawn up? A. No. Q. You never saw a solicitor to resolve that issue either, did you? A. To resolve the issue of the loan? Q. The loan agreement. A. No. Q. Again, by April 2013 there were a series of issues that needed to be resolved before any transfer of land was to occur, weren't there? A. Yes. Q. You couldn't resolve these issues because Leanne refused to transfer any assets to you? A. Incorrect."
13. Blake agreed that after the meeting with Mark Job, he commenced to take a wage of $250 per week from the partnership account. He was further cross-examined a little later in these terms: "Q. Leanne told you she did not want to be financially tied to anyone, including you while she was alive? A. Incorrect. Q. She told you she didn't want to end up like her grandmother who had nearly lost her home? A. She'd, she'd made references to what had happened to her grandmother, but she certainly didn't consider me to be what - at the time what she considers Paul Tremain to be, I knew that. Q. She told you she didn't like your wife, Danielle? A. I knew that, yes. Q. She told you she didn't want Danielle to get her hands on the farming land? A. That was one of her concerns that was discussed at length in the meetings, yes. Q. After these Federal Circuit Court orders were made in July 2013 and for all of 2013 you still made no attempt to see a lawyer to document a transfer of land to you? A. I didn't get independent legal advice. Q. You didn't ask Ray or Leanne to see a lawyer to document any transfer of land to you? A. Yeah, I didn't get independent legal advice. Q. You knew for a transfer of land to happen there would need to be a document that's signed; correct? A. Yeah, I guess at the time I trusted my parents and I had, I had a verbal commitment in, in front of a number of independent professionals and I, I thought we were all on the same page and, and we had trust in the family. Q. The truth of the matter is that you didn't ask a lawyer to document the transfer because you knew that Leanne would not agree? A. Incorrect."
14. Blake agreed that he was told by Mark Job in about October 2014 that Leanne had cancelled the new partnership ABN that he had secured.
15. Blake agreed that since about the time of the meeting with Robert McGorman in July 2015 that he realised Leanne had no intention of transferring any land to him: "Q. Do you agree with me that from this date, at least, you were in no doubt as to Leanne's position? A. This made it clear to me that she had no intention of honouring our family agreement, yes. Q. Any work you've done on the property since this time has been in the knowledge that Leanne does not wish to transfer any property or partnership asset to you? A. Yes, I would say so, yes."

Consideration

1. In my opinion, all of this evidence establishes that Blake neither returned to, nor remained living and working upon, the family farm as the result of representations or assurances or promises given or made to him by Leanne and Ray or either of them. That is primarily for the dual reasons that the assurances upon which Blake says he relied were insufficiently settled or certain in the first place and that Blake did not in fact remain at Peak Hill in reliance upon them in the second place.
2. I understand that Blake says that he relied upon what he was promised, that his decisions were based upon what he was assured and I also accept that he believes it now to be so. However, in my estimation, Blake's view or understanding of the circumstances that led him to leave Newcastle and return to Peak Hill has developed and evolved over time in response to what might now be characterised as his disappointment, perhaps more accurately described as his dissatisfaction, with the fact that he presently has no proprietary interest in or share of his parents' farming and grazing partnership or the several parcels of land from which it is conducted. In essence, he has no tenure.
3. It is important that I indicate, before proceeding further, that the context in which I have formed this view, is one of a family effectively in crisis. That comment should be explained.
4. Blake returned to Peak Hill with his partner when it became evident that his younger (and only) brother was ill and that it was apparent or extremely likely that he would not survive. Jordan's death followed some time later and left in its wake his distraught and grieving parents and a brother whose loss was as great as theirs. The emotional ramifications for this family are difficult to overstate.
5. Then, not because of, but undoubtedly not assisted by, Jordan's death, the already failing relationship between Leanne and Ray deteriorated further. I am not suggesting that there was any direct causal connection between Jordan's death and the disharmony, which became enmity, between Leanne and Ray or that it was not well before then significantly entrenched and incapable of salvation. But the death of a child is a terrible thing and few relationships survive it even in the best of circumstances.
6. Leanne was also in the difficult situation of being shackled to her former spouse by the bonds of a failing or at least marginal business enterprise, compromised by drought and her own perception that Ray was not up to the task of ever returning it by himself to its former profitability or reducing the disproportionate burden of debt that had built up over the years. Leanne's prospects of extricating herself from this situation to my observation created conflicting calls upon her, among which she found it impossible to choose. She wanted to farm. She did not want to do it with Ray. She wanted to teach which she could not do in Peak Hill. She wanted the best for Blake but was not prepared to forsake her heritage.
7. Blake for his part, by his own account, grew up feeling closer to his mother than to his father but has lived to see that situation, for better or worse, change dramatically in the last decade. Blake is now somewhat awkwardly aligned with his father against his mother in expensive proceedings from which possibly no one will emerge unscathed. Blake has referred to his mother as a person with a problem for every solution, a description undoubtedly borne of the frustrations that have generated this litigation. However, his relationship with Leanne has also suffered considerably from his not unreasonable perception that Leanne does not like his wife, whether because of her indigenous heritage or for any other reason, and the relationship between Leanne and Blake's children, if it can be said to exist at all, has suffered accordingly.
8. The somewhat curious irony in these proceedings derives from the fact that, unlike what so often causes disharmony in landed rural families, Leanne and Ray have (now) only one child who might be considered to be the natural and obvious object of their testamentary bounty, a son who has ably demonstrated a dedicated and energetic, not to say skilful, interest in reviving the prosperity and success of their erstwhile successful rural enterprise. This is not, as it is so often, a case of children in bitter competition for a valuable business that cannot support them all but which cannot survive if divided.
9. As difficult as it will be for Blake to hear me say so, I think the evidence in this case clearly supports the fact that he did not return to Peak Hill or decide to stay there because of his parents' entreaties or assurances. I consider that the evidence supports the proposition that Blake did so for reasons personal to him, including an unsolicited wish to assist his parents, but that this litigation has been inspired by an easily understandable desire on his part to establish or secure a reason why he should not now have to leave. Quite apart from the separate question of whether Blake suffered any detriment by doing so, I am satisfied that Blake's decision to return to the family farm was made without reference to anything his parents said or did at the time or anything they have said or done since. In particular, I consider that Blake's decision to stay is one that he has made in his own best interests, having regard to the way in which the business has thrived under his management and direction, and having regard to the financial benefits that he has been able to derive from both the partnership business and his other endeavours, including his separate partnership with his father and the stud business that he inherited from his brother.
10. It is clear from the cross-examination of Blake concerning the financial benefits that he received from working on the family farm that the business has done reasonably well since his return and clearly because of it. Blake is clearly an intelligent, well-organised and resourceful individual and the partnership is now in better shape than when he first arrived from Newcastle. I have not included a reference to all of the material in evidence that would tend to support these conclusions. However, taking into account the detailed analysis of the evidence in Leanne's written submissions, and noting Blake's response to those submissions, it is clearly arguable that Blake has received annual average benefits in money terms since 2011 of approximately $100,000 per annum. Leanne has contended that, far from suffering a detriment in reliance upon his parents' representations or assurances, Blake is at least no worse off than he would have been had he stayed on the coast.
11. In the context of a family dispute, and having regard to the prospect that Blake might hopefully be able continue to work on the family farm in one capacity or another, I have intentionally not referred to all of the matters that Leanne has emphasised should operate to disentitle Blake to relief. If there is a prospect of reconciliation among the parties, notwithstanding my conclusions, I would prefer not to put that in jeopardy.
12. The fact that Blake craved certainty about his future does not without more convert that desire into an obligation enforceable in equity binding his parents in good conscience to fulfil it. I do not accept that Leanne ever encouraged Blake to believe that she would give or sell or in any other way transfer her interest in the lands she owned outright or with Ray to Blake during his lifetime. I do not accept that Leanne ever encouraged Blake to believe that she would bring him into any ongoing business relationship that included Ray as a partner.
13. Blake has made much of the fact that Leanne appears never in terms to have said to him that it was not part of her thinking to part with her assets during her lifetime, whereas she maintains that to be her position now. Blake has consistently emphasised that Leanne is a strong and intelligent woman and that it is unlikely that she would not have communicated her views to this effect to Blake if it were true. I agree with the former but I disagree with the latter.
14. There is no doubt, whatever might be the fact, that Leanne considered Ray to be an aggressive and overbearing man who was used to getting his way. I perceive that she felt he had bullied her in the family law context and that his behaviour there was not uncharacteristic. The family law settlement that she reached with Ray meant that she emerged from that struggle with her property interests relatively undiminished. It would have been inconsistent for Leanne shortly thereafter to have relinquished what she was able to salvage from the wreck of her marriage. It is unremarkable that Leanne did not say to Blake that she was not interested in parting with the property she had fought hard to retain.
15. Leanne made detailed submissions to the effect that anything said or done by her did not clearly and unambiguously amount to an assurance, far less a promise, upon which Blake could have been expected reasonably to rely; nor did he suffer any detriment. Those submissions should be noted as follows.

Certainty of the assurances alleged

1. Leanne's starting point is that she denies the promises and assurances alleged to have been given by her to Blake. However, even if they had been given, Leanne maintains that they were in all cases too vague to found an estoppel.
2. For example, the alleged 2008 assurances were to "hang in there", "[i]t will be worth it for you", and "[t]he sacrifices will be worth it down the track". Leanne submitted that these words are so vague as to be meaningless. The alleged 2009 assurances included that "[t]he farming business will be yours one day", "[t]hings will get easier in the future", "[y]ou are working for yourself", "[t]he sacrifices you are making will be worth it down the track", "[w]hat's mine is yours", and "[i]t will be you who benefits from our properties at Peak Hill and West Timbie". Leanne submitted that these were "virtually meaningless", and "at best expressions of hope or of Leanne's testamentary intentions at the time". Leanne also gave evidence that the expression "what's mine is yours" when used by her was as a statement of familial cohesion and inclusion, not a statement that carried any inference of proprietary disposition.
3. A further assurance allegedly given by Leanne in 2009 was "you'll be included in the partnership and the land so you can stay on the property and it will provide a future for you." No time for being "included" was specified. The statement does not mean only that Blake would be taken into a partnership with his parents or that some unspecified share or interest in their land would be transferred to him. Even if the reference to being included in the partnership could only be construed as the creation of a new partnership with his parents, such a statement does not carry with it the necessary implication that Blake would receive a proprietary interest in the land from which it was to be conducted.
4. Leanne also denies Blake's subsequent promises or assurances that he would be made an "equal partner" or "included as a one-third partner in the business and land". However, even if made, those proposals did not simply mean that Blake and his parents would become tenants-in-common in equal shares of the land and partnership assets. That is because these discussions continued to evolve as the several meetings already referred to make clear.
5. As an example, the Rural Biz proposal on 2 August 2011 was that Blake should "get the trading assets and all the debt and half of Westray". That is, Blake would co-own Westray with Leanne.
6. At the meeting in October 2011, according to John De Bomford's oral evidence, the parties only discussed transferring Lynlee. In cross-examination, John De Bomford said "Lynlee was [the] property that was the one that was sort of discussed as the simplest, easiest transaction, it was a separate title, he was living there, so that was the property that was, was discussed for transfer". John De Bomford said he did not recall any discussion about Ray and Leanne transferring a third of Westray, Bulgandramine or Lynlee.
7. During the meeting with Mr Curley on 21 November 2011, Ray said for the first time that he was "happy to give [Blake] a third of Bulgandramine", meaning Blake would co-own Bulgandramine with Ray, although it is unclear what the remaining division of property would be. According to Mr Curley's letter sent after the meeting, Ray was to transfer his half-share in Westray to Blake and to transfer 800 acres of Bulgandramine land to Blake.
8. At the meeting in October 2012, according to John De Bomford's oral evidence, the only property that was discussed as being transferred to Blake was Lynlee. Shortly following the second De Bomford meeting, Blake suggested transferring Lynlee to him rather than it being owned by Leanne and Ray as tenants-in-common. Leanne did not agree with this. The issue of Lynlee was never resolved.
9. At the meeting on 16 February 2013 with Andrew Tremain, the possibility of Blake having a third share of the partnership and land was discussed, but the proposed form of his ownership was not clarified. Leanne's concerns about the prospect of her property passing to Danielle as part of a divorce settlement if that occurred were also not finalised. Under cross-examination, Andrew Tremain rejected the suggestion that Leanne agreed to move ahead with the partnership straight away in exchange for Ray giving up his claim in relation to Lynlee.
10. Finally, Mark Job's letter following the meeting of 11 April 2013 refers to "[i]tems to be considered with regards to any land transfers", but does not specify what land, if any, would be transferred to Blake.
11. For an estoppel to be found, the representation must be sufficiently clear and unambiguous. In Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26 at [35] and [147]-[157], the High Court held that a landlord's statement to tenants that they would be "looked after at renewal time" was too ambiguous to create an estoppel requiring renewal of the lease. Similarly, in Palagiano v Mankarios [2011] NSWSC 61, White J held at [10] and [43] that the deceased's statement to his son that "It's all been worth it" and "You will own this home one day with [your brother and sister]" were insufficiently clear to found an estoppel, but were merely statements of the deceased's testamentary intentions at the time. A representation may, however, be sufficiently clear "if it is reasonable for the representee to have interpreted the representation in a particular way being a meaning which it is clearly capable of bearing and upon which it is reasonable for the representee to rely": Galaxidis v Galaxidis [2004] NSWCA 111 at [93]. The quality or specificity of the assurances may bear on questions of reasonable reliance and detriment: Delaforce at [55].
12. I have no doubt that Blake was led to believe that the family farming business and the lands from which it operated would one day be his. Several references in the evidence make that clear. Many conversations refer to the future. Blake referred to one of them quite early in the piece: "As a result of what Ray and Leanne said to me, I stayed and worked on the farm because I was led to believe that I would be included in the partnership and land or paid a wage as the family farm would eventually be mine." (My emphasis) However, that statement and statements to the same effect are in my view clearly insufficient to found the estoppel upon which Blake relies.

Reliance: reasonable reliance

1. Nor am I satisfied that Blake reasonably relied upon anything that Leanne said or did.
2. Blake bears the onus of establishing that he relied on Leanne's alleged representations, otherwise referred to in this case as Leanne's promises or assurances. Reliance is a fact to be found; it is not to be imputed: Sidhu v Van Dyke at [58]. Blake must show that he reasonably acted differently because of the representation or that "but for" the representation he would not have acted as he did: see Miller Heiman Pty Ltd v Sales Principles Pty Ltd [2017] NSWCA 106 at [45]-[59].
3. Leanne referred to Gillett v Holt [2000] EWCA Civ 66; [2001] Ch 210 at 232, cited in Sion v NSW Trustee and Guardian [2012] NSWSC 949 at [108]: "There must be sufficient causal link between the assurance relied on and the detriment asserted. The issue of detriment must be judged at the moment when the person who has given the assurance seeks to go back on it. Whether the detriment is sufficiently substantial is to be tested by whether it would be unjust or inequitable to allow the assurance to be disregarded - that is, again, the essential test of unconscionability."
4. Leanne maintained that Blake did not rely on Leanne's alleged promises and assurances, or if he did, his reliance was unreasonable. Leanne made the following detailed submissions.
5. First, the most significant decision Blake made was to give up a well-paid job in Newcastle, return to the family farm with Danielle and begin working for the partnership for no wage. That life-changing decision happened in May 2008, prior to any of the alleged promises or assurances.
6. Secondly, Blake knew his parents did not get along and could not work together. Rural Biz expressly recommended a proposal that "would mean that Leanne and Ray don't work together". Andrew Tremain told him from about May 2008 that it is impractical to run a family farm as one business with divorced parents. It was unreasonable to rely on any promise or assurance requiring an ongoing business relationship between Leanne and Ray. Making Blake the sole signatory on the partnership chequebook was unlikely to solve the problem when Leanne and Ray would still have to make business decisions together as equal partners.
7. Thirdly, Blake asserts that in 2010 Leanne told him she would "leave everything to [h]im", that Ray was "fucked" and should get an off-farm job, and that Blake should run the farm with his cousin Toby Cannon. If those statements were made (contrary to Leanne's evidence), they strongly suggested Leanne would be keeping "everything" during her lifetime and not transferring it to Blake. Leanne's comments about Ray also show she had no intention of an ongoing partnership with him. Thus, as at 2010, there was no suggestion on the table (if there ever had been) of an equal partnership or of any ongoing business relationship between Leanne and Ray.
8. Fourthly, Blake's primary reliance evidence is set out above at [19] and [234]. Leanne suggested that it suffered from the following difficulties: 1. Any "evidence of what a witness would have done in a hypothetical situation [is] characteristically if unintendedly self-serving and influenced by what has happened in fact, [and so] is rarely of much worth": LCY Pty Ltd v Ma [2017] VSCA 383 at [86]. 2. At the time Blake allegedly changed his position (by continuing to work on the family farm after Jordan died, rather than returning to Newcastle), the 2010 discussions had already occurred and there was no suggestion on foot that land would be transferred to him or that he would be made a partner while Leanne was alive. Objectively, he had no reasonable expectation to that effect. Any reliance in April 2011 or thereafter with respect to an equal-thirds partnership was unreasonable. 3. Blake was not relying on any promise or assurance that he would be given a one-third interest in the land and partnership assets but upon vague assurances of being "included" in the partnership and land in an unspecified sense and at an unspecified time, or that he would be "paid a wage" in an unspecified amount at an unspecified time and that the family farm "would eventually be [his]". References to "eventually" were as consistent with the receipt of benefits after his parents died as with what might happen during their lifetime. Leanne submitted that reliance on such vague assurances was unreasonable, and in any event the assurances were devoid of relevant content such as specified shares of the land and partnership assets. 4. Blake confirmed in cross-examination that he and Danielle "made the call" to stay in Peak Hill prior to the Rural Biz meeting: "Q. Was it at this point you committed to living at Peak Hill, was it? A. Post my brother dying, once, once the funeral and that sort of thing had occurred and somewhat subsided, we'd had family discussions about - I was being contacted from my - from my former employer and, and the Chandler McLeod recruitment agency as well. We had to make a call on whether we stayed in Peak Hill or whether we left. Q. You made the call? A. We made the call because of the assurances I was given from both parents that we were going to progress along, trying to solve their divorce but keep the properties intact, and then from - I had a clear, I guess, pathway forward which with a, a meeting was booked with Rural Biz, and I was told I would be included in the partnership. So, once I got that assurance, Danielle sent that email and we, we changed the direction of where she'd be teaching because of that. Q. You made that call before the meeting at Rural Biz? A. Once I had the assurance the meeting was going to happen, we made that call, because I trusted my parents, yes. Q. There was no assurance to you, at that point, that you would be given a third of the land, was there, at that point? A. The one-third figure wasn't discussed at that point, no. But there was an assurance I'd be brought in, yes. Q. To the partnership, generally? A. Brought into the partnership, yes."
9. This occurred prior to any promise of a one-third interest in the partnership. Leanne submitted that Blake's decision was based on vague "assurances" from Leanne and Ray that he would be "included" or "[b]rought into" the partnership in a general sense.
10. Fifthly, Blake had strong incentives, both financial and sentimental, to ensure the continuation of the partnership on the family farm: 1. In October 2011, Blake told his former boss David Walker: "This farm means a lot to me and my family. I want to be able to pass it on to the next generation." 2. After Ray's heart attack in January 2012, Blake said he increased his workload "to preserve the Family Farm and [his] future based on the promises that had been made to [him]".
11. Leanne submitted that Blake also had other reasons to stay. He was getting by with money from playing rugby league and living rent free on Lynlee with some of his living expenses paid by the partnership. Ray and Leanne had agreed he should be paid for his work on the farm, even though the partnership could not afford to do this until 2013. Moving house back to Newcastle would have been inconvenient.
12. Sixthly, the quality or specificity of assurances may bear on reasonable reliance and detriment: Delaforce at [55]. As already noted, the proposals for ways that Blake might be included in the partnership kept changing, and Leanne's alleged assurances were too vague reasonably to be relied upon.
13. Seventhly, Blake could not reasonably rely on promises or assurances allegedly made at the six meetings. They took place while the Federal Circuit Court property settlement proceedings were still on foot. Blake was aware of those proceedings, which would determine Leanne and Ray's ownership of assets. Blake could not reasonably rely on any promises or assurances about those assets while the outcome of the proceedings was unknown. Ray accepted that he needed to know how his and Leanne's assets would be divided before they could develop a plan to include Blake.
14. The meetings were also lengthy, with no formal minutes kept, and new details or options continued to emerge and change. Blake could not reasonably rely on what was supposedly promised unless the promises were clearly documented and confirmed. The meetings were patently preliminary: the parties were exploring options and seeking advice as to the consequences, not committing to outcomes. Statements made in that tentative and provisional context could not reasonably be relied upon, particularly given the need to obtain further legal and accounting advice. It could not reasonably be assumed that such advice was a mere formality or that an identifiable proposal would become a reality.
15. Leanne has also said, and I accept, that Ray and Blake were pressuring Leanne during these meetings to agree to their "succession planning" agenda. Blake could not reasonably rely on any assurances apparently given by Leanne unless she otherwise confirmed them. On the contrary, Leanne made it clear in writing what her position was, and it did not conform to Blake's version of what these meetings produced.
16. There was significantly no agreement as to how the mortgages over the farming lands would be discharged, refinanced or otherwise dealt with as part of any proposed transfer to Blake or how the caveats would be dealt with, how much debt Blake would take on, or the terms of any loan agreement. The partnership had a notorious struggle with debt that could not easily or obviously be resolved. This was not a case where the objective circumstances or alleged promises left no room to doubt that matters would proceed.
17. Nothing at any of the meetings reached the stage of an agreement requiring only that the details be committed to writing. The parties never consulted a solicitor to implement any of the alleged promises, even after the consent orders of July 2013, or to seek independent legal advice. The terms of any partnership agreement were never settled and unsurprisingly no written partnership agreement was ever prepared. Effectively none of the suggestions or recommendations of the experts approached for assistance was ever followed or adopted. Anything discussed at the meetings remained preliminary, incomplete and provisional at best. It was unreasonable for Blake to place any reliance upon such a high level of uncertainty.
18. Significantly, shortly following Leanne and Ray's conciliation conference on 31 October 2012, they both told Blake of Ray's offer to buy out Leanne's interest in all land and partnership assets for around $1.5 million. Blake says he was "shocked" to hear of this proposal as it contradicted earlier proposals. Leanne submitted that any earlier proposals could not, at this point, reasonably be relied upon unless they were again discussed and confirmed.
19. Blake conceded that after the final meeting with Mark Job in April 2013, there was still a series of issues that needed to be resolved before any transfer of land was to occur.
20. Blake says that after the meeting with John Curley on 21 November 2011, he "continued to believe that [he] will be included in the partnership". That was at best a hope, not a reasonable belief. There is no evidence he relied upon that belief.
21. Leanne made the point that there is no documentary evidence to support Blake's reliance case. Even though Blake wrote to his mother in the terms earlier recorded, he did not say that anything he did or refrained from doing was as the result of his reliance upon Leanne's assurance that he would be given one-third of the land and an equal interest in a partnership.
22. Finally, Leanne emphasised that there was certainly no reliance on promises of a one-third interest in the partnership and the land after July 2015. At that time, Mr McGorman sent an email setting out the parties' respective positions, including Leanne's position that the property be split in accordance with the consent orders and that no transfer be made to Blake. In cross-examination, Blake acknowledged that any work he did on the farm since he received the email was in the knowledge that Leanne did not wish to transfer any property or partnership asset to him.
23. Blake submitted, in response to Leanne's assertion that her promise was not the sole inducement to him to stay on the property and that this must undermine any claim that he relied on the promise, that was made, that it is sufficient if the representation played a part in the decision: Sidhu v Van Dyke at [71]. Blake maintains that that is clearly what occurred here.
24. In my opinion, it was not reasonable for Blake to have expected, based upon anything said or done by his mother at any time, that she would give him a significant share of her land holdings and partnership assets. Blake's return to Peak Hill was understandable in the highly emotionally charged atmosphere that attended his brother's fateful diagnosis. I have no doubt that Blake reasonably felt a strong familial obligation to assist his parents with their business and their marriage at a time of significant stress, and with their son suffering from a terminal illness.
25. As years passed, two things appear to me to have occurred. First, Blake became more and more involved in working on and indeed managing the family farm. He invested significant time and energy for little initial reward in attempting to resurrect a business from what might neutrally be described as a difficult position. He saw his efforts bear fruit and his financial position correspondingly improved.
26. Secondly, Blake's successes in reinvigorating the family farm have brought his relatively uncertain and undocumented status into sharp focus. It was apparent to me, having observed Blake in the witness box and having listened closely to his evidence, that he felt that his efforts were both underappreciated by his mother and deserving of some greater recognition. A review of the several meetings that have figured so prominently in these proceedings bears witness at the very least to Blake's concern to put in place some formally structured arrangement with immediate effect, as opposed to what was likely to have been (and what in my uninstructed estimation probably remains) the certain albeit distant prospect of inheriting the family farm.
27. Blake has throughout these proceedings consistently emphasised his mother's intelligence and strength and independence. These things were evident when Leanne gave evidence. I believe her denials that she promised or assured Blake that she would take steps to transfer land that she owned to him during her lifetime if he came back to the family farm or, more likely from Blake's point of view, if he stayed there and helped. I am satisfied that it was unreasonable for Blake to treat anything his mother said as an assurance or promise or representation that she would do so. Indeed, Blake's own evidence was that Leanne said to him in 2010, "The only person that does well in farming is the person who gets to sell it. That will be you and not me as I will leave everything to you." (Emphasis added.) Without intending to be unnecessarily critical or pejorative, I consider that Blake stayed and worked on the farm because it suited him to do so. I am satisfied that nothing to which Leanne gave even grudging support ever amounted to a plan or scheme or proposal that was sufficiently certain or concrete to have permitted Blake reasonably to have assumed it was going to occur.

Detriment

1. As Blake's submissions uncontroversially assert, for his estoppel case to succeed he must also show detriment. His pleaded detriment is "that he did not return to his career and did not receive an income similar to that which he would have received had he [done so]". Leanne submits, and I accept, that this requires a comparison between Blake's hypothetical salary away from the family farm if he had pursued his original career and the actual income and financial benefits he received as a consequence of his decision to continue working on the family farm. Leanne emphasised that the benefits Blake received because of his decision to stay on the family farm include: 1. wages, bonuses and other financial benefits received from the partnership, and, since 2016, received from a new partnership with Ray which operates partly on the family farm; 2. wages for agricultural work in and around Peak Hill (such as at his maternal grandparents' property and casual work for Elders), which he would not have received but for his decision to stay on the family farm; 3. money received from renting out the cottage on Westray, and rent and electricity contributions from Peter Maher (Leanne's former partner) when he was living on the family farm; and 4. money received from playing rugby league in or around Peak Hill, bearing in mind that Blake would also have played for a team if he had remained in Newcastle.
2. Leanne summarised these benefits in a series of tables, ultimately reduced to incorporate some of Blake's criticisms, to the following: Year Income Other benefits Total 2011-2012 $42,086.00 $17,200 $59,286.00 2012-2013 $13,982.13 $17,200 $31,182.13 2013-2014 $18,100.00 $17,200 $35,300.00 2014-2015 $20,000.00 $25,000 $45,000.00 2015-2016 $118,934.22 $25,000 $143,934.22 2016-2017 $89,955.80 $25,000 $114,955.80 2017-2018 $92,458.03 $25,000 $117,458.03 2018-2019 $118,147.18 $25,000 $143,147.18 2019-2020 $145,123.89 $12,500 $157,623.89 (half year) TOTAL $658,787.25 $189,100 $847,887.25 AVERAGE (8.5 YEARS) $77,504.38 $22,247 $99,751.44

1. Blake contended, in response to Leanne's submission that detriment can be evaluated by comparing the amount of income that Blake might have earned in an alternative career with the amount of income that he has obtained from any source since 2011, as "contrary to principle". He similarly characterised Leanne's contention (relying on the same figures) that the relief he claimed is disproportionate to any detriment he may have suffered or that the detriment has been diminished by reason of these payments.
2. In the first place, the question of detriment involves the position as at 2015, when Leanne resiled from the agreement, not the position today. The question is whether, as at 2015, when the cause of action, if any, arose, Blake had suffered detriment by acting on the assumption induced by Leanne. Blake submitted that he had plainly suffered detriment. At the most basic level, there was a clear disparity between what Blake could have earned in an alternative career, plus additional income in his spare time from playing football (on a broad estimate, hundreds of thousands of dollars) and the amount he had earned in the period from 2011 to 2015 from the partnership (which would be less than $100,000). But secondly, and more importantly, the question of detriment is not restricted to this arithmetical comparison: Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 at [21]-[22], [26]-[27]. Here, the detriment included not only the monetary loss but Blake's loss of the opportunity to pursue an alternative career, to build his own life and acquire his own property.
3. The figures contained in Leanne's tables for the period after July 2015 are simply irrelevant to the estoppel claim. In Giumelli, the detriment was the detriment suffered by Robert up to the point at which the defendants resiled from their promise. This was the period during which Robert continued with the partnership. Once the defendants resiled from the promise, Robert left the farm and any income obtained by him from any source thereafter was simply irrelevant. Here, Blake has remained on the farm notwithstanding that Leanne has resiled from her promise. However, according to Blake, any benefits received by him from the partnership after July 2015 are irrelevant to the estoppel claim.
4. In any event, according to Blake, the figures put forward by Leanne in the tables in Section H of her closing written submissions do not accurately represent benefits obtained by him from the partnership. Blake dealt with these matters in a Schedule attached to his final written submissions.
5. In my opinion, the key to resolving this aspect of the dispute is the fact that after Leanne, according to Blake, resiled from her promise, Blake, unlike Robert in Giumelli, did not leave the farm and return to Newcastle but instead remained where he was and continued on with his work, ultimately in his role as the manager of the family farm. He remained living where he was enjoying the same advantages, such as rent free accommodation, that he had enjoyed from the start. Blake also did so from 2015 until the hearing of the proceedings and he conspicuously continues to do so. Even if it is technically correct to say that the benefits in the post-2015 period are irrelevant, which I doubt having regard to the fact that they are derived from the same or similar endeavours, the very fact that Blake did not leave Peak Hill is itself a reliable indicator that he was not sustaining or suffering any detriment in fact. It is difficult for me to accept that Blake's position is detrimentally different than it would have been but for Leanne's alleged assurances or representations having regard to the fact that he has not sought physically to extricate or remove himself from the position in which he finds himself. Any suggestion that Blake may have chosen to remain where he is so as not to frustrate any possible order in his favour that may have required Leanne to comply with or make good upon her alleged assurances is not to the point.
6. As Blake has submitted, reliance and detriment are matters to be determined by reference to inferences to be drawn from the whole of the evidence. I consider that the calculation of any detriment Blake may have suffered requires a comparison between his hypothetical off-farm income, for example, if he had stayed and worked in Newcastle, with the actual income he has received as a result of his decision to stay on the farm.
7. The 2015-2019 period generated the highest annual income at Peak Hill for Blake. It is very important in the present case to draw a distinction between a disappointed expectation, which I have instead found to be a disappointed hope, and the sustaining or incurring of a detriment caused by the disappointment. Blake's so-called detriment does not flow from Leanne's failure to fulfil his alleged expectation, even though fulfilling it may be one way of compensating him for it. Blake bears the onus of demonstrating that he altered his position to his detriment so that he has been and is now measurably worse off than if he had stayed working in Newcastle. In my view, the evidence does not support that contention. Blake has suffered disappointment according to his own lights, but has not relevantly suffered any detriment.
8. Although my conclusions will by now be apparent with respect to Blake's estoppel claim, I should note specifically with respect to the issues identified at [146], that I find as follows: 1. Did Leanne and Ray, on any of the relevant occasions, induce Blake to believe that he would receive an interest in the partnership and the family farm or that Leanne and Ray would transfer a one-third interest in the partnership and family farm to him? No. 2. Were the alleged inducements sufficiently clear and unambiguous to support an estoppel? No. 3. Did Blake rely on the alleged inducements to his detriment? Blake neither relied upon the inducements, nor did he do so to his detriment. 4. If so, was such reliance reasonable? On the assumption, contrary to my finding, that Blake relied upon the inducements, such reliance would not have been reasonable. 5. Is it unconscionable in all the circumstances for Leanne to resile from the inducements (if made)? No.

Other matters

1. Leanne has raised other matters in response to Blake's claim. These include the contention that the relief claimed is disproportionate to the detriment alleged, that specific performance of a promise to include him as a partner amounted to a collateral attack upon orders made by the Federal Circuit Court, which require a dissolution of the Cannon-Tremain partnership through an equal division of assets, and an allegation that Blake is disentitled to equitable relief by reason of his own improper conduct in the observance and discharge of fiduciary obligations imposed upon him in his control and use of the partnership's funds. Having regard to the conclusions I have reached, it is unnecessary, and in the case of the alleged improper conduct preferable not, to consider these matters further.

Conclusion

1. It follows that the proceedings must be dismissed with costs.

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: 03 June 2020