Turnbull v Turnbull

The Dispute

1. The dispute in these proceedings concerns the basis upon which Roger and Annette used the route briefly described above to gain access between Roydon and Wallam with their farm machinery and for their road trains. Roger and Annette claim to have a continuing right and entitlement to use the route described under an arrangement alleged by Roger to have been made with Ian and Robeena before he bid at the auction for Roydon in June 2008. Robeena denies that such an arrangement was made before Roger and Annette purchased Roydon.
2. It appears that a dispute had developed between Ian and the Office of Environment and Heritage in relation to the clearing of native vegetation on properties known as Colorado and Strathdoon, which were owned by members of the Turnbull family. On 29 July 2014, Ian was arrested and taken into custody in connection with the killing of Mr Glen Turner, an officer of the Office of Environment and Heritage. Ian was subsequently found guilty of the murder of Mr Turner. He was sentenced to a term of imprisonment and died in prison.
3. It appears that tensions developed within the Turnbull family in connection with the arrest and trial of Ian and his subsequent imprisonment. In addition, it appears that concerns developed within the Turnbull family about the possibility that the dependants of Mr Turner might make some claim on Ian's assets, such as his interests in Yambin and North Yambin. Those concerns appear to have led Roger to ask Robeena to acknowledge rights claimed by him on behalf of his family. In December 2014, Roger called on Robeena at the Yambin homestead and asked her to sign two documents. One was an acknowledgment that part of the grain stored in silos on Yambin belonged to Cory. The other concerned the rights of Roger and Annette to have access over Yambin. The first document was not in evidence.
4. Robeena and Roger signed the second document, which was prepared by Roger and Annette. The document said as follows: "As owner of Yambin property I give permission and full access via western boundary 10 metres width from Croppa creek road through to Marshalls ponds creek. No obstacles created shall be formed." Robeena said in her oral evidence that she signed the document when Roger presented it to her because he became very agitated about it and demanded that she sign it. Roger did not deny the circumstances in which it was signed. Robeena said that she spoke to Roger on the day after she signed the document and asked that he screw it up. She asserted that Roger agreed to do so. However, as will appear below, Roger did not destroy the document.
5. In May 2015, Roger commenced proceedings against Ian and Robeena in the Equity Division, claiming an interest in Yambin and other properties owned by his parents as a result of work said to have been performed by him for his parents without remuneration (the First Proceedings). The First Proceedings had been fixed for hearing in early 2017 but the fixture was vacated following Ian's death.
6. On 27 November 2015, Messrs Cole & Butler, the solicitors acting for Ian and Robeena in the First Proceedings, wrote to Messrs Dormer Stanhope, the solicitors acting for Roger and Annette in the First Proceedings, alleging that Roger had been observed unhinging a "grain vac" belonging to Ian and Robeena in the shed on North Yambin and making a "hurried get away" over North Yambin and Yambin. The letter then said: "… if it has not previously been made clear, your client has no permission or consent to enter or remain on 'Yambin', 'North Yambin' or any of our clients' properties. The grain vac had been the subject of a request by your client's son Cory (on behalf of your client, to borrow the same) however, that request was refused and it was made clear to your client (through his son, Cory) that permission to use that equipment had been denied. However, your client has still seen fit to remove the equipment and use it without our clients' permission and consent. We demand that you inform your client that he is to cease trespassing on our clients' properties with immediate effect and if for any reason the need arises for your client to enter into or remain on our clients' properties than [sic] permission ought to be obtained prior and can be organised through our office. Similarly, our clients, including Mr. Grant Turnbull do not consent nor permit your client to remove or utilise any items of property belonging to them unless their prior consent is obtained. We are instructed that access has previously been granted to your client's son Cory Turnbull along the western side of our clients' property 'Yambin' as a roadway to get to 'Roydon'. That access remains." Notwithstanding the terms of that letter, throughout 2016 Roger and Annette continued to gain access between Roydon and Wallam over Yambin along the route described above. Indeed, Roger said in his oral evidence that he ignored the letter.
7. The dispute between Roger and Annette, on the one hand, and Robeena, Ian and Grant, on the other, came to a head at the beginning of 2017. On 12 January 2017, Cole & Butler wrote to Dormer Stanhope saying as follows: "We are instructed to inform your client that he and his wife, Annette, or their employees, agents or contractors are not to enter or travel through our clients' properties, in particular 'Yambin'. For the avoidance of doubt, the above exclusion does not apply to Cory and Donna Turnbull, Trent Turnbull or Josh Turnbull who are permitted to enter, ride and drive motorbikes, quad bikes or vehicles onto and through 'Yambin', but not farm machinery. Any attempts by Roger Turnbull, Annette Turnbull or their employees, agents or contractors to enter, travel through or utilise any roads, paths or tracks on or through our clients' properties, specifically 'Yambin', will be deemed as trespassing."
8. Dormer Stanhope responded on 18 January 2017 saying that their clients had written permission to travel over Yambin along its western boundary. A copy of the document of December 2014, which had been signed by Robeena and Roger, was attached to Dormer Stanhope's letter.
9. Cole & Butler replied on 20 January 2017, relevantly saying as follows: "Whilst that 'permission' does not identify to whom permission is purportedly given, we are instructed to inform your client that any permission (written, verbal, express or implied) is withdrawn and revoked with immediate effect. Any attempt by Roger Turnbull, Annette Turnbull or their employees, agents or contractors to enter, travel through or utilise any roads, paths or tracks on or through our clients' properties, specifically 'Yambin', will be deemed as trespassing. For the avoidance of doubt, we reiterate that the above exclusion does not apply to Cory and Donna Turnbull, Trent Turnbull or Josh Turnbull, who are permitted to enter, ride and drive motorbikes, quad bikes or vehicles (but not farm machinery) onto and through 'Yambin'."
10. Dormer Stanhope followed the letter of 18 January 2017 with a further letter of 20 January 2017, relevantly saying as follows: "We have reports that our client has been physically barred from using the Yambin Road. We also have reports of the road being damaged or destroyed by a bulldozer. Our clients have an equitable right of way over Yambin. Damage to that road, including prevention of use, is a violation of our clients' property rights. Permission to build that road was given in 2009 by your clients. That permission was recorded and evidenced in writing in 2014. A copy of this record was provided to you enclosed in our letter of 18 January 2017. Our client constructed that road in 2009 at his own expense on the basis of this permission. The road has been used and maintained by our client since that time. The road is of critical importance to our clients' business immediately and in the future. Inability to access the road is costly to our client and his business. Unfettered access to the road is required immediately. Any damage to the road is to be repaired by your clients immediately and at their expense. If access is not restored and damage not ceased and repaired immediately we will be approaching the Supreme Court for urgent injunctive relief and we will rely on this letter in the matter of costs." [emphasis in original]
11. Cole & Butler replied to Dormer Stanhope's letter of 20 January 2017 with a further letter dated 20 January 2017, in which they repudiated the claims made by Dormer Stanhope. Cole & Butler asserted that no permission had been given in 2009 or at any other time for Roger to "build that road" or any type of "road". They asserted that there never was a road "built" or "constructed". The letter also made allegations concerning the circumstances in which the document of December 2014 was signed. Cole & Butler went on to point out that, as at December 2014, Ian was still a registered proprietor of Yambin and his consent or signature did not appear on the "purported permission document". Cole & Butler's letter asserted that their earlier letter made plain that any permission that existed had been withdrawn and revoked.
12. Later on 20 January 2017, Cole & Butler wrote to Dormer Stanhope again, confirming that their clients were not preventing Roger from entering Roydon and that Roger was at liberty to enter Roydon through the River Road access as all the previous owners of Roydon had done. The letter also asserted that there were at least three other ways that Roger could enter Roydon as follows:

• through the main entrance via the Newell Highway and through River Road;
• obtaining permission from the Galls to travel through their property;
• obtaining permission from the Tighes to travel through their property, down the Wongabindi Lane. The letter asserted that any suggestion that revocation and withdrawal of access to Yambin was costing Roger and his business was rejected as he had other appropriate ways of entering Roydon. They asserted that access to Roydon through Yambin was preferred by Roger simply because it was a shortcut and nothing more.

1. On 28 April 2017, Dormer Stanhope caused a caveat to be lodged in respect of Yambin on behalf of Roger and Annette claiming an "easement - right of way along western boundary" by virtue of facts stated in an annexure as follows: "The right of way arises by virtue of prior representations made by [Robeena and Ian]. These representations were to the effect of: if [Roger and Annette] were to buy [Roydon] (the Dominant Tenement), then [Robeena and Ian] would afford them a right of way over [Yambin] to enable access to the Dominant Tenement." It is significant that that is the first occasion on which any suggestion had been made that access over Yambin had been granted before Roger and Annette bid for Roydon at the auction in June 2008.

These Proceedings

1. These proceedings were commenced by summons filed on 2 June 2017. A statement of claim was filed on behalf of Roger and Annette on 31 July 2017 (the Statement of Claim) and a defence was filed on behalf of Robeena and Grant on 18 August 2017. On the same day, a cross-claim was filed on behalf of Robeena against Roger (the Cross-Claim).
2. The Statement of Claim seeks the following relief:

• a declaration that Robeena is bound to give effect to an easement created over Yambin, being an easement for right of carriageway between Wallam and Roydon constituted by a formed dirt and gravel road of two chains' width built between 2008 and 2011 along the western boundary and then across the south west corner of Yambin (described as the Road);
• a declaration that the easement was held on express trust by Robeena and Ian for Roger and Annette;
• an injunction restraining Robeena and/or Grant from interfering with the rights of carriageway over the Road;
• an injunction requiring Robeena and Grant to remove and/or demolish all structures that obstruct or otherwise contravene the rights of carriageway over the Road;
• in the alternative, a declaration that Roger and Annette have an irrevocable licence binding on Robeena, her servants and agents, while Roger and Annette continue to own Roydon, for each of them, their servants and agents to come and go and pass over on the Road on the condition that they maintain the Road;
• a permanent injunction restraining Robeena and Grant from interfering with the exercise by Roger and Annette of the licence while they continue to own Roydon; and
• an order that Robeena and/or Grant pay damages for any loss sustained by Roger and Annette by interference with their right and enjoyment of the licence and destruction of the Road.

1. In the course of oral argument, counsel for Roger and Annette abandoned any claim to an easement and confirmed that the relief sought was a declaration as to the existence of the licence claimed and an injunction restraining interference with their exercise of the licence. Initially, Roger and Annette also claimed rights over North Yambin. However, at the beginning of the hearing, that claim was also abandoned. Notwithstanding that the claim pleaded is limited to the time when Robeena remains as owner of Yambin, Roger and Annette now assert that Robeena should be restrained from alienating Yambin without first reserving the licence claimed by them.
2. The allegations made in the relevant paragraphs of the Statement of Claim may be restated as follows:
3. In or about mid-2008, Ian, in the presence of and with the knowledge and express or implied agreement of Robeena, represented to Roger that if Roger were to buy Roydon, Ian and Robeena would give Roger and Annette a right of carriageway over Yambin that would allow vehicles involved in Roger and Annette's commercial farming enterprise, including farm machinery and freight trucks, to travel over Yambin along a 2-chain-wide roadway between Wallam and Roydon (the Representation).
4. Ian attended the auction of Roydon with Roger and Annette and, consistently with the Representation, encouraged Roger and Annette to bid on and purchase Roydon.
5. In reliance upon the Representation, Roger and Annette purchased Roydon at public auction for the sum of $3.9 million in mid-2008.
6. At the time of the purchase of Roydon by Roger and Annette, Robeena and Ian knew or ought to have known that: a. Roger and Annette considered it uneconomic for them to purchase Roydon as a farming enterprise without access across Yambin to reach Roydon from Wallam; b. There was an advantage to Ian and Robeena in the purchase of Roydon by Roger and Annette because they considered Roger and Annette to be good farmers and family and also considered that Roger and Annette were likely to clear Roydon and reduce damage to Yambin by wild pigs and vermin. c. Roger and Annette were, in buying Roydon, acting in reliance upon the Representation and encouraged by it.
7. From winter 2009 to December 2010, Roger and Annette, with the encouragement and assistance of Ian and with the implied encouragement and agreement of Robeena, constructed the Road, being a dirt and gravel road, along the western boundary fence line on Yambin, across the south west corner of Yambin to, and then across, Marshalls Ponds Creek.
8. The path of the Road across Yambin was initially directed by Ian and agreed between Ian and Roger.
9. The Road, once constructed, was capable of withstanding the weight of farm machinery and loaded freight trucks travelling at substantial speeds along the Road.
10. In encouraging Roger and Annette to carry out and pay for the work for the construction of the Road, Robeena and Ian knew that Roger and Annette were doing so in reliance and encouraged by the Representation.
11. It would be unconscientious for Robeena to be allowed to depart from the promise given by her and Ian to Roger and Annette by now refusing to give them a formal written registrable easement over the Road recorded on the titles of Wallam as dominant tenement and Yambin as servient tenement.
12. From the time the Road was constructed until 20 January 2017, Roger and Annette maintained the Road themselves, or paid contractors to maintain the Road once to twice a year, during which period Roger and Annette also paid for all materials and equipment required or utilised to maintain the Road.
13. The further maintenance and expenditure was encouraged by reliance upon the Representation.
14. Robeena has denied access to the Road to Roger and Annette.
15. On 20 January 2017 the Road was damaged and/or destroyed by a bulldozer belonging to Grant or an entity controlled by him pulling a ripper device behind it along the length of the Road.
16. The damage or destruction of the Road was carried out by or at the direction of Grant.
17. Robeena and/or Grant were, either by the licence or equitable easement granted to Roger and Annette over the Road, bound not to impede Roger and Annette's use of the Road by damaging or destroying it.
18. The damage or destruction of the Road by or at the direction of Grant was an unlawful interference by Grant with the rights of licence or easement granted to Roger and Annette by Robeena and Ian.
19. In the Cross-Claim, Robeena alleged that, at approximately 9pm on 4 June 2017, Roger, or a person acting at his direction and with his authority, entered upon Yambin with a spray rig and travelled in a southerly direction on Yambin along the western boundary causing the spray rig to spray herbicide chemical along its path and kill the chickpea crop growing on that area. The Cross-Claim sought an injunction restraining Roger from entering upon or interfering with Yambin. It also claimed damages for trespass and damages for nuisance.
20. The parties have agreed that the outcome of the Cross-Claim will be governed by the outcome of the claims made by Roger and Annette in the Statement of Claim. It is therefore unnecessary to say anything further at this stage about the Cross-Claim.
21. In the Statement of Claim, Roger and Annette also allege that, in 2012, Ian, with the authority or agreement express or implied of Robeena, expressly assured Roger of his enduring entitlement to cross Yambin in order to travel between Wallam and Roydon. They allege that, in those circumstances, the assurance given by Ian on behalf of himself and Robeena constituted an express trust of "the equitable easement" created by the assurance itself or by the Representation.
22. Roger supported that allegation by oral evidence-in-chief to the effect that Ian said to him the following: "If I get in trouble, I will have to sell Yambin. … I'll make sure you've got a road. I'll call the solicitors, I'll get a surveyor, we'll peg out your two chain road. ... I can't pay for it now, I haven't got that cash. … When it comes up for sale, we'll do something about it then." No one other than Ian was said to be present. Accordingly, there was no express repudiation of Roger's evidence. However, it is significant that the "assurance" was asserted for the first time after commencement of these proceedings and not on any of the earlier occasions when it might have been expected that Roger would have mentioned the alleged Representation or the assurance allegedly given in 2012. In any event, it is difficult to see how any equitable interest could arise from the mere "assurance". By 2012, Roydon had been purchased and the Road, so called, had been constructed. There was no suggestion of any reliance on the alleged assurance after it was made. There is good reason why Roger and Annette do not press a case based on the alleged assurance.
23. The essence of the case advanced on behalf of Roger and Annette is that they bought Roydon in reliance upon the Representation, which is alleged to have been made by Ian, in the presence of Robeena, before the auction at which Roger and Annette bought Roydon. Orders have been made that any question of damages for wrongful interference with the licence or any damages for trespass or nuisance under the Cross-Claim be heard separately from and after the determination of all other questions in the proceedings.
24. Before addressing the question of the Representation, I shall summarise the evidence given by the witnesses. I shall then say something about the credibility of those witnesses.

Roger's Evidence

1. In his oral evidence-in-chief, Roger said that, in mid-2008, Ian asked him to come over to Yambin where he had a discussion with Ian and Robeena sitting at the kitchen table in the homestead. He said that Ian had told him that he had seen, in "The Land" newspaper, that Roydon was for sale. Roger asserted that Ian said to him, in relation to Roydon: "I think you should buy it. I insist you buy it." Roger said that he responded that he would need access to Roydon because the economics in buying Roydon would not work out going around the highway. He said that his father responded: "No worries, you can use the western boundary as your road." Roger said that he asked why he could not use the front road of Yambin and pointed out that that road is gravelled and formed. Roger said that Ian responded: "No, I don't want you to drive down my road and come around the house and sheds with your machinery day and night with noise and lights. … You can have a 2 chain road … along the western boundary for access." Roger's evidence was that he said to Ian that, if he drove on the western boundary, he would be driving over Ian's crop. He said that Ian responded: "Yes, you have to drive down there." and that Robeena said: "Don't be silly, of course you can drive on the crop." Roger also said that Ian told him "you can develop it", referring to the proposed two-chain road.
2. Annette was not privy to the conversation alleged by Roger to have taken place prior to the auction at which she and Roger bought Roydon. In his account, in his oral examination-in-chief, of his conversation with Annette after his alleged conversation with Ian and Robeena, Roger made no mention of having told Annette anything concerning access to Roydon over Yambin. However, in cross-examination, Roger initially asserted that he discussed with Annette the alleged conversation in which access was mentioned. When confronted with his omission to mention that in his examination-in-chief, Roger insisted that he had told Annette about the conversation and that he had said in chief all that he could remember at the time. Given the opportunity to recount his alleged conversation with Annette in full, he recounted what he said was the gist of it, including saying to Annette: "We can go through Yambin down the western boundary". He said that he told Annette that it was "economical" to buy Roydon and that she replied: "Yes, it's economical as well if we can go through there." When asked whether he was sure, he said he was not quite sure about the bit about "economics". When it was put to him that he said nothing to Annette about having access down the western boundary of Yambin, Roger said: "I think I did tell her. … I'm pretty sure I did. … I can't recall whether we spoke about it definitely or not. I'm pretty sure that I did talk to my wife about it. … I'm nearly certain I would have spoken to her about it."
3. In the course of cross-examination, it was suggested to Roger that it was not until after the purchase of Roydon that he approached Ian and Robeena and asked if he could drive down the main Yambin driveway past the house and along what was referred to as "the old mail track". He responded as follows: "We spoke of that when I was told that Roydon was for sale." It was suggested to Roger that, after the purchase of Roydon he asked Ian and Robeena, when they were both present at the same time, whether he could drive down the main driveway of Yambin, past the house, around the woolshed and across the creek on the old mail road. He denied that he said that. It was then suggested to him that Ian responded by saying that he did not want Roger coming past the house with machines at all hours of the day and night and that Ian said: "Maybe you could go down the track on the western boundary." It was then suggested to Roger that that was how his use of the track down the western boundary came about. He responded: "If that was the conversation at the table, that's what it was."
4. Even if one accepts Roger's evidence as to such a conversation taking place before the auction for Roydon, the terms of any licence are somewhat vague. Further, there was no mention of the route of the proposed access south of the give and take fence.

Annette's Evidence

1. Annette gave oral evidence-in-chief to the effect that, when she and Roger were farming Wilga Warrina and Ivanhoe, she and Roger would come down from Toowoomba and live at Wallam while they were sowing or harvesting. She said that, when they decided to sell Wilga Warrina and give up the option in relation to Ivanhoe, she and Roger wanted something a lot closer to Wallam.
2. Annette said that she heard through Roger that Roydon was for sale. She said that Roger told her that Ian, to whom he referred as "the Old Man", had told him that Roydon was for sale and she said that Roger had asked her whether they should get it or not. Annette gave evidence that Roger said it would be good because it is in close proximity and that he said "we have to do it because of the tax implications". Annette said that she responded that it sounded like a good idea since "it ticks all the boxes".
3. Annette said that she went to the auction with Roger, Ian and their banker. She said that they strategically sat where they could watch what the Maughns were doing. Annette said that when Peter Maughn was bidding higher, Ian would nudge Roger and say "Go mate". Annette confirmed that she and Roger were the successful bidders at the auction and that they both signed the contract as purchasers.
4. It was not suggested that Annette left matters of business entirely to Roger. Indeed, when asked who was responsible for working out the financial viability of the project, Annette said that she and Roger worked that out together. There was no elaboration of the "working out" process. Annette gave evidence that, after the auction of Roydon, Roger told her that "the Old Man sort of said that we can get through there". That appears to be a reference to Yambin. Although initially hesitant, Annette confirmed that the conversation was after the auction.

Robeena's Evidence

1. Robeena gave evidence-in-chief that Ian told her that Roydon was on the market in 2008. She and Ian discussed the property, including whether there might be any interest in buying it because it was next door. Robeena said that Ian did not think very much of Roydon and they were not interested in buying it. She said that Ian said that he thought Roydon would go cheaply and that they did not want it.
2. Robeena's evidence was that, on the day before the auction, Ian told her that Roger was going to go to the auction and that he would go as well. Robeena did not know that Roger was going until Ian told her so. She did not have any knowledge that Roger and Annette were interested in buying Roydon and that they might bid at the auction. Robeena did not go to the auction.
3. Ian came home on the day of the auction and said that Roger had bought Roydon. Robeena said that she was surprised because she and Ian had talked about it as not being a particularly good farm. Ian said that the bidding was fairly slow to start with and then Roger jumped ahead and that seemed to seal it.
4. Robeena gave evidence that she could not recall any conversation prior to the auction on the subject of access to Roydon from Wallam. However, she said that about 12-14 months after completion of the purchase of Roydon, Roger asked Ian if he might be able to drive down the Yambin driveway to access Roydon. She said that Ian said: "No, I don't want you to be driving machines and going past our house at all hours of the day and night, but maybe you could go on the western boundary." Robeena was not certain as to when that discussion occurred. She said that she did not think it occurred until Roger was wanting to go to Roydon after the lease expired. At one point she said she thought it was in 2009.
5. In cross-examination, it was suggested to Robeena that Ian found an advertisement for Roydon in "The Land" newspaper and asked Roger to come over to talk to them about it and that Robeena was present when that happened. Robeena denied what was put to her. She denied that there was any discussion about access over Yambin in her presence before the auction. Robeena also denied that Ian used the phrase "you can have a 2-chain road along the western boundary" and asserted that the phrase that was used, in the conversation that she said occurred well after the auction, was: "Perhaps you can go down the dirt track on the western boundary."
6. Thus, it is common ground that a conversation occurred concerning access along the western boundary of Yambin and that Ian, Robeena and Roger were involved in the conversation, which took place in the Yambin homestead. While there are differences about the language that was used in describing the access as "a track" or "a road", the substance is much the same. The critical difference is the time at which the conversation took place.

Grant's Evidence

1. Grant gave evidence that, prior to the auction of Roydon, Ian mentioned to him that Roger and Annette might be interested in buying the property. He said that the conversation was only several days before the auction. Grant said in cross-examination that he did not discuss with Ian the farming practices of the Maughns or whether or not they were effective farmers. He said that Ian did not tell him that he thought Roydon was under-developed and had no discussion whatsoever with Ian about Roydon prior to its purchase by Roger and Annette.
2. Grant also said that he had a conversation with Ian on the subject of Roger having access over Yambin between Wallam and Roydon. However, he said that the conversation took place in approximately 2010, although it may have been a bit before that. Grant said that the conversation took place at about the time when Roger was taking over Roydon and it was around the time when the lease was about to run out because Roger would then need regular access.
3. Grant's evidence was that, in a general conversation with his father, the question of Roger having access to Roydon through Yambin came up. Grant said that Ian told him that he did not want Roger to go through the main entrance of Yambin because there could be anybody going along there any time through the day or night and he did not want that because the road was very close to the house and his bedroom. Grant also said that Ian might have added something about dust on Robeena's washing. Grant said that Ian mentioned that he told Roger that he could use the western fence. Grant said that at the time of the conversation with Ian, there was a track along the western boundary of Yambin, which was "a farmed field". He said that, from time to time, he took a vehicle down the western boundary, but said that it was not very often that he did so.
4. Grant said that, after the conversation with Ian, he observed Roger using the track and saw him coming and going. Grant said that he did not see any work with a bulldozer or tractor along the western boundary and did not see Roger operating a grader or using graders to prepare a roadway on that site. Grant said that the track became very hard because the more traffic the harder it got. He described it as becoming more of a well-used track and what may be considered a "road". In cross-examination, Grant agreed that the firmer and harder road on the western boundary was about 10 metres wide. He said that cultivation went up to the edge of the western boundary but there were vehicle tracks over the cultivation. Grant said that in about July 2015 he installed a gate at the northern boundary of Yambin where the fence had been cut for Roger to obtain access to the western boundary.
5. Grant agreed in cross-examination that he worked in conjunction with Roger in a cordial relationship for a number a years and was in partnership with Ian, Robeena and his three brothers for a number a years. He was not aware of any written partnership agreement for any of those arrangements. He agreed that Ian would tell his sons how things were going to be and they would do it and certainly did not require a piece of paper to record what the agreements were. He agreed that written agreements were not something that the Turnbull family were in the habit of creating between themselves, even in relation to relatively large amounts of money.
6. Grant also agreed that a primary practice that the Turnbull family had engaged in was to identify a cheaper property that was not being cultivated effectively and then acquire the property at the best price possible. They would try to identify underdeveloped farming properties that had either been poorly developed or had a mixture of grazing and farming, then acquire such properties and try to increase the level of cultivation.
7. Grant said in cross-examination that, following Ian's arrest, he managed Yambin on Robeena's behalf and that that involved giving instructions to the farm workers and making decisions about cultivation and crop. He agreed that he made those sorts of decisions in the same way that Ian had previously made them and that he did not need to discuss them with anyone. He said that he would inform Robeena in general terms what his plans were. He said that he did the day-to-day operations "as normal".
8. Grant confirmed that there was a give and take fence on Yambin which divided the cultivated part of the "number 1 paddock" of Yambin from a part that was uncultivated. The part of Yambin that was south of the give and take fence, which was covered with trees and scrub, was treated as part of Roydon. In return, part of Roydon on the other side of Marshalls Ponds Creek was treated as part of Yambin and was cultivated by Ian and Robeena.
9. Grant agreed that, at some stage, Ian decided to cultivate the area of Yambin south of the give and take fence and that Ian and Roger agreed to set aside the give and take arrangement, although he could not recall when that agreement was made. Grant agreed that the trees and scrub on Yambin south of the give and take fence were removed but could not remember when. He thought that it was around the time when Roger started farming Roydon. He agreed that Ian cleared the area south of the give and take fence but the track from the western boundary to the south eastern boundary at the crossing over Marshalls Ponds Creek remained.
10. Roger agreed in cross-examination that he and Grant "have never been close" and Grant agreed in cross-examination that he and Roger "don't get on" now. Grant said that it was his view that Roger did not give any support to Ian following his arrest and that he, Grant, had a strong view about that matter, which he conveyed to Robeena. However, he denied that he had given Robeena any advice as to how to deal with Roger.
11. Grant agreed in cross-examination that it was his decision to tear up the "road" along the western boundary. Grant also agreed that the decision to cultivate over the access road from the western boundary to the crossing over Marshalls Ponds Creek was made by him. He agreed that he cultivated over the road. While he did not remember the letter sent by Cole & Butler in November 2015, he did recall giving instructions about Roger having access to his equipment and machinery.
12. Grant also accepted in cross-examination that he is aware of the First Proceedings, in which Roger and Annette are suing Robeena, and agreed that it is his view that Roger should not be allowed to use the access over Yambin while he is suing Robeena. He said that he has told Robeena that that is his view. However, he said in cross-examination that the decision to terminate access over Yambin was not made by him or by Robeena but was made by Ian before he died. He said that an instruction was given by Ian in early 2016. Nevertheless, Grant did nothing about preventing Roger from having access over Yambin during the whole of 2016 and the first time anything active was done was when a letter was sent in January 2017 by Cole & Butler. Grant confirmed that he gave instructions to Cole & Butler to write that letter.

Credibility of the Witnesses

1. My assessment of Annette in the witness box is that she was endeavouring to give honest evidence of her recollection. While, as I have said, she was slightly confused as to the time when Roger told her about access over Yambin, she ultimately confirmed that he did not tell her until after the auction. That was directly contrary to her own interest and supports the conclusion that she was endeavouring to give evidence to the best of her recollection.
2. Robeena gave her evidence in a forthright and firm manner, although there were occasions when she gave the impression of endeavouring not to co-operate in cross-examination, for example, by answering unresponsively saying that something was none of her business. However, notwithstanding that impression, I accept her evidence that she was not a party to a conversation prior to the auction of Roydon in which access over Yambin was allegedly discussed between Ian and Roger.
3. Grant's evidence does not bear directly on the question of when the alleged statements about access were made. To the extent that his evidence is relevant, I consider that it is reliable. There is, in fact, little disagreement with Roger's evidence, insofar as Grant accepted that he was not on Yambin at all times.
4. The reliability of Roger's evidence is affected by the fact that Roger knowingly sought to mislead the Court in the course of preparation for the hearing. In a letter of 31 July 2017, Cole & Butler requested that Dormer Stanhope obtain their clients' instructions as to whether they, or someone authorised by them, drove their spray rig and sprayed herbicide over the chickpea crop on Yambin along the western boundary. Roger initially instructed Dormer Stanhope to deny having done so and he admitted in the course of cross-examination that he lied to Dormer Stanhope in giving those instructions, knowing that his denial was going to be set out in an affidavit sworn on his behalf. He accepted that he knew that Dormer Stanhope would be informing the Court of his position based on what he knew to be a lie.
5. Further, Roger acknowledged that he was prepared to provide false information for the purpose of obtaining finance. In late 2010, Roger informed his broker, Mr Justin Barnes, for the purposes of a finance application to Suncorp, that he was committed to selling Roydon at the end of 2011. He said that he was willing to provide whatever form of commitment Suncorp would like in order to give it confidence that Roydon would be sold. However, he did not at the time intend to sell Roydon at the end of 2011 but, as he said, he made the representation as "bait" to induce Suncorp to lend him money. He said that "sometimes you bend it to try and get a loan" and "sometimes you bend your figures to make it work".
6. On the other hand, those concessions, made when Roger was under oath in the witness box, tend to suggest that, when giving his evidence, Roger may have been endeavouring to give what he then believed to be truthful evidence. Nevertheless, there were occasions when his evidence changed when confronted with the untenability of a particular position that he adopted. That indicates that, at best, Roger's evidence may have been a sub-conscious construction. At worst, it was a deliberate fabrication.

No Representation before the Auction

1. It is significant that there is no evidence that Roger mentioned or alleged to anyone before 28 April 2017 that he had a right of access over Yambin founded upon a representation made to him before he and Annette bid for Roydon at the auction. The first occasion on which such an assertion or allegation was made was in the caveat dated 28 April 2017. However, there were several occasions before that when one might have expected Roger to have referred to the alleged Representation, upon which he claimed that he relied in deciding to buy Roydon for $3.9 million.
2. Roger accepted in cross-examination that he did not make any mention of having access to Roydon over Yambin when he applied to Rabobank for finance for part of the purchase price for Roydon. He did not mention it to Mr Roger Butler, the solicitor who acted for Roger and Annette on the purchase of Roydon. He did not mention access to Mr Barnes, his mortgage broker, who prepared the application for re-finance of the purchase with Suncorp. Valuations of Roydon were carried out in connection with the initial finance in 2008 and in connection with the re-financing in 2013. No mention of access was made to the valuers. Roger accepted that he took no steps to document or formalise the alleged arrangement for access.
3. Those omissions must be considered against the assertions made by Roger in his oral evidence that having access to Roydon through Yambin was "vital" to Roydon being profitable and that it was "paramount" for him to have that access. He also described the access as being "critical" or "essential" to the decision to buy Roydon. It is indeed curious, if that was Roger's state of mind and if he truly relied on having an enduring access right of that kind in deciding to buy Roydon, that he would fail to mention it to Annette, fail to mention it to the solicitors acting in connection with the purchase, fail to mention it to the bank who was financing the purchase and fail to take any steps to have the right documented in some way. Roger advanced various explanations for those failures.
4. First, he asserted that he trusted his parents. Indeed, there was evidence that arrangements between members of the Turnbull family were made over the years without formal documentation. For the most part, the family relied upon Ian to do the right thing. Roger suggested that he did not need to tell his solicitor because "it was a family done deal".
5. Secondly, Roger asserted, in response to a question as to why he did not seek to formalise the arrangements through Robeena after Ian was arrested, that it was "hardly the time to go through solicitors and lawyers when we're all in a - a different frame of mind". On the other hand, Roger sought the acknowledgement from Robeena in December 2014 and, in May 2015, commenced the First Proceedings against Robeena and Ian alleging that they had failed to honour other obligations to him. The commencement of such proceedings contradicts any professed trust of Roger in Ian and Robeena as his parents. It also evidences an indifference to the difficult circumstances of his parents at that time.
6. Thirdly, Roger asserted, by way of explanation for his failures, that his alleged access to Roydon through Yambin was irrelevant to the value of Wallam and Roydon. He asserted in re-examination that his understanding had been that if two properties were being valued, it was an independent value for each of the properties. However, if access between Roydon and Wallam over Yambin was "vital" and "paramount" for Roydon's profitability to Roger, it is difficult to see why the asserted access right could not have been relevant to Roger's ability to service a loan and to the value of Roydon as security when coupled with Wallam, whether or not access might have had an effect on the value of the properties if sold separately.
7. The language of the document signed in December 2014 by Roger and Robeena is inconsistent with Roger's assertion that he had been given a right of access before the auction. The December 2014 document is expressed as a present giving of permission. One would have expected that, if Roger believed that permission had been given in 2008, the document would have purported to confirm the permission. Further, the permission purports only to grant a path of access 10 metres in width, in circumstances where Roger's oral evidence was that Ian had referred to access of two chains' width, which is about 40 metres. Roger's explanation for the discrepancy was that: "…we were all under a lot of pressure. I just wanted a road."
8. That is inconsistent with the suggestion advanced by Roger that he did not seek Robeena's signature on the document to assert his rights against her but to protect himself against the demands of a third party. The suggestion was that he was concerned that the family of Mr Turner, who had been murdered by Ian, may take steps against the property of Ian. One might expect that, if Roger was truly seeking to protect his rights from third party claims, he would have started with an assertion of what he believed to be his full entitlement, rather than beginning with a compromise.
9. When Cole & Butler wrote on 27 November 2015, demanding that Roger cease trespassing on the properties of Ian and Robeena, Roger said that he ignored the letter. Cole & Butler specifically said that Roger had no permission or consent to enter or remain on any of the properties of Ian and Robeena. It might be seen as curious that Roger would choose to ignore such a demand if he truly believed that he had been given the right of access over Yambin before he bought Roydon.
10. When Cole & Butler wrote again to Dormer Stanhope on 12 January 2017 informing him and Annette that they had no permission to enter on or traverse Yambin, the initial response from Dormer Stanhope, provided on 20 January 2017, was that Roger and Annette had permission to travel over Yambin by reason of the document of December 2014. Later on the same day, Dormer Stanhope contended that the December 2014 document recorded a permission given by Ian and Robeena in 2009 to build "the Road". No suggestion was made in the correspondence that access had been granted prior to the auction in 2008. The letter is, on the other hand, consistent with the evidence given by Robeena that permission for access over Yambin was given well after the purchase of Roydon was completed.
11. Whether Roger's evidence is a deliberate falsehood and recent invention or whether it is a sub-conscious construction from a mere vague memory or impression of what was in fact said or what may have been generally discussed on prior unrelated occasions is not clear. However, the objective evidence summarised above points firmly against any representation, as alleged by Roger, having been made by Ian prior to the auction of Roydon.
12. The question of access to Roydon from Wallam was of no immediate significance until the lease on Roydon expired at the end of 2010. It would be logical for Roger to give attention to the question of access as the time for entering into occupation of Roydon drew closer. On the assumption that some preparation was necessary for the western boundary to be used for access, it is reasonable to assume that attention might have been given to that question as the time for expiration of the lease to the Maughns grew closer.
13. There is evidence that gravel was purchased by Roger and Annette in February 2011 and that the gravel was used to make a crossing of Marshalls Ponds Creek within the Crown land. On the assumption that there was no discussion concerning access before the auction, it is reasonable to conclude that the conversation about which Robeena and Roger gave evidence occurred sometime prior to the expiration of the lease over Roydon.
14. I am not persuaded that it is more likely than not that, prior to the auction of Roydon in 2008, Ian made the Representation alleged by Roger. Indeed, I am persuaded that it is more likely than not that no such representation was made prior to the auction. [1] I find that no Representation as alleged by Roger was made by Ian, either in the presence of Robeena or otherwise, prior to the auction in 2008. I am firmly satisfied that, although such a conversation took place subsequently, not earlier than 2009, no such conversation took place before the purchase of Roydon.

Reliance and Detriment

1. In the end, the relief claimed by Roger and Annette is no more than a declaration that Robeena is estopped from denying that they have a licence binding Robeena and her servants and agents, for so long as Roger and Annette or either of them own both Wallam and Roydon, for each of them, their servants and agents, to come and go and pass over that part of Yambin described above as "the Road". The basis for the estoppel is that it would be unconscionable for Robeena to deny access over the Road in circumstances where, on the case advanced by Roger and Annette, Ian encouraged Roger and Annette to buy Roydon in the expectation that access would be available over Yambin and either encouraged Roger to construct or stood by while Roger constructed, a crossing over Marshalls Ponds Creek within Crown land and carried out improvements to the track along the western boundary of Yambin and across the southern part of Yambin.
2. I have found that there was no Representation as alleged by Roger. Accordingly, there is no basis for an estoppel. Even if Roger's evidence as to the alleged Representation were to be accepted, in circumstances where Annette does not say that she was aware, prior to the auction, of any arrangement between Ian and Roger for access over Yambin, it must follow that she was not induced by any such arrangement and did not rely upon any such arrangement in deciding to sign the contract for the purchase of Roydon following the successful bid by Roger.
3. More significantly, there is no evidence upon which an inference can be drawn as to whether Roger and Annette may have acted differently in relation to the purchase of Roydon. Roger now asserts that having access over Yambin is "paramount" and "vital" for the profitability of Roydon. In his oral evidence, Roger said that "when you have harvesting equipment and headers working at a certain speed … if the trucks don't match the harvesters … you have a bottleneck". Roger said that he worked out all his figures on his trucks going from Roydon to Wallam and if they did not match up he would not be able to harvest efficiently. He had no infrastructure on Roydon, but on Wallam he currently has a silo complex where the grain is stored and he has sheds where all the machinery is kept.
4. However, there is no evidence as to any financial or economic analysis in relation to Roydon that Roger or Annette undertook before bidding at the auction to determine what difference having access over Yambin would make to the profitability of the farming operations on Roydon. Importantly, it was not suggested that Roger and Annette would not have bought Roydon without access over Yambin. Rather, it is suggested that they may not have paid the same price. However, it is impossible to quantify any detriment that may have been suffered by Roger and Annette as a result of paying $3.9 million for Roydon without having access over Yambin. As I have indicated above, it was never suggested by Roger, when seeking finance, that the access over Yambin was of value to him and Annette in the conduct of their farming operations.
5. Robeena agreed in cross-examination that the proximity of Wallam to Roydon was something that would make a big difference to the ability of Roger to farm those two properties together effectively. However, Roger and Annette accepted that the precise difference that access over Yambin would have made to the price of Roydon is unquantifiable, as is the financial impact that might have flowed from the refusal to grant access prior to the auction. Nevertheless, they asserted that reliance upon the purported Representation that they would have access was a real financial decision, effectively putting their trust in Ian and Robeena.
6. Roger and Annette also rely on the expenditure of effort and money on the construction of the access "road" over Yambin and the crossing over Marshalls Ponds Creek as giving rise to an estoppel. They claim that substantial work was done in reliance upon the expectation that they would continue to have access between Roydon and Wallam over Yambin. Three elements of such work were identified. The first was work done between the old give and take fence on Yambin and the boundary of Yambin with the Crown land surrounding Marshalls Ponds Creek, in country that was originally covered in scrub and trees. The second was a crossing constructed over Marshalls Ponds Creek within the Crown land. The third was upgrading the track along the western boundary from the Croppa Moree Road to the give and take fence.
7. Roger gave evidence that, when the lease to the Maughns expired, Ian said that he wanted to pull down the give and take fence and farm through to Marshalls Ponds Creek. In return, Roger was to get access to the part of Roydon north of the give and take fence that had previously been farmed by Ian as part of Yambin. Roger said that Ian then proceeded to clear the part of Yambin that was south of the give and take fence. He said that, once Yambin had been cleared to the southern boundary, Ian told him to "keep the road where it is". Roger said that Ian thereafter cultivated and farmed down to the "road", jumped the "road" and then cultivated on the southern side down to the boundary. Thus, Roger said, there was cultivation both north and south of the "road" but not on the "road" itself.
8. Roger said that he had eight semitrailer loads of gravel delivered for the construction of the crossing of Marshalls Ponds Creek, each load being about 25 tonnes. He asserted that the building of the crossing was the most expensive part of constructing what he described as "the road" and claimed that the gravel cost $28,000 and that labour and machinery hire cost some $20,000. Annette said that she saw bulldozers in the Marshalls Ponds Creek and trucks emptying rocks. She conceded that she had not seen any grading take place but observed the change in the state of the "road" from which she concluded that it had been graded.
9. Roger said in his evidence-in-chief that he had to make a road down the western boundary to get access and that that involved clearing sticks, briars and wire, smoothing it out, making it straight and making the access "road" accessible by vehicles and machinery. He said that he pushed trees and debris out of the way to make a "road" two chains' wide. He said that Ian assisted him. Roger said that to construct what he described as "the road" from the western boundary of Yambin to the crossing into Roydon he used his tractor to push down whatever trees and bushes he could and that Ian used his bulldozer to push out the bigger trees that Roger could not.
10. Farm workers employed by Robeena and Grant denied that any part of the access "road" had been formed, graded or gravelled. The farm workers said that the track was a non-wet weather, black soil dirt track and had none of the usual indications of having been graded, smoothed and flattened, which is usually evidenced by mounds of dirt built up along the edge of it, sometimes referred to as "rills". In his statement, Mr Ivan Maas said that "the track" could not be driven over in wet weather. Mr Mitchell Jensen, a commercial truck driver employed by Roger and Annette to drive road trains carrying harvested crop from Roydon to Wallam, said that there was a compacted, black soil road that ran along the western side of Yambin. He did not suggest that the "road" was formed with gravel or any other construction materials.
11. The evidence was generally consistent with the "road" consisting of a pre-existing dirt track along the western boundary and cutting across the south west part of Yambin to Roydon which, over time, by reason of the passage and re-passage of heavy vehicles, was compacted to a harder surface. The evidence supports a finding that there was a gravel crossing over Marshalls Ponds Creek.
12. The evidence as to the cost of the work was unsatisfactory. Accounting material was tendered on behalf of Roger and Annette, which was misleadingly described as relating to the cost of gravel in January 2011. Accounts for the partnership carried on by Roger and Annette showed little expenditure at the relevant time. On the basis of the evidence presently before me, I would conclude that money was spent by Roger and Annette on gravel that was used to construct a crossing over Marshalls Ponds Creek. It is not possible to form any view as to any other expenditure that might have been incurred in constructing an access road or track along the western boundary and across the south western part of Yambin to the crossing.
13. The only documentary evidence concerning expenditure for construction and maintenance relates to the construction of the creek crossing on the Crown land. That evidence is fairly characterised as scant and the relationship of the evidence to the construction work alleged by Roger was demonstrably exaggerated. The accounting evidence was originally asserted by Roger to be records of expenditure incurred "in relation to the access road". In cross-examination, Roger conceded that the grader that was the subject of an invoice had been used on Strathdoon as well as on Wallam and Roydon. Roger also conceded that an invoice from a transport company included work done on Roydon in June 2015. Roger's evidence in relation to the invoices for gravel was contradictory and not credible.
14. Annette's evidence in relation to accounting records was also unsatisfactory. She was responsible for book-keeping, although she did not prepare accounts for the partnership. In her oral evidence-in-chief, Annette suggested that she had not had sufficient time to collate all of the relevant records regarding the construction of the access "road". However, she conceded in cross-examination that she had been back to Wallam on five occasions since January 2017 when she could have extracted accounting records to support a claim for expenditure. Annette's evidence was inconsistent and lacking in credibility. Her evidence about expenditure on the "road", including the creek crossing, was totally unreliable.
15. The evidence does not support a finding that Roger and Annette expended any more than $3000 in relation to the construction of the creek crossing on the Crown land. There is no basis for concluding that they would not have expended any money if they had not believed that any right of access over Yambin was permanent. Further, it is difficult to see why it would be unconscionable for Robeena to revoke any licence for access that Roger and Annette may have had in circumstances where Roger and Annette had the benefit of access over Yambin from the beginning of 2011 until the end of 2016, a period of some six years. Although it is not possible to quantify that benefit in terms of the savings in transport achieved by reason of access through Yambin rather than by public roadways, it is more likely than not that the savings over that period exceeded the cost of any work carried out either on Yambin or on the Crown land.
16. On 1 September 2008, Roger and Annette were offered a licence by the Minister for Lands authorising the use and occupation of the Crown land bordering Roydon through which Marshalls Ponds Creek passes. The licence conferred the right to occupy the Crown land for the purpose of grazing but the holder of the licence was not permitted to use the land or allow it to be used for any purpose other than grazing. It did not confer exclusive possession on the holder. The licence could be revoked at any time in the absolute discretion of the Minister by giving notice in writing and revocation was to take effect on the date specified in the notice. The holder of the licence acknowledged and agreed that the holder would not be entitled to any compensation, costs or damages in respect of revocation. Clause 40 of the licence provided that the holder would not construct, effect, erect or undertake any building, structure, facility, work or pontoon on the land to which the licence relates.
17. Some reference was made in the course of addresses to Sch 5 to the Water Management (General) Regulation 2011, cl 21 of which contains an access licence exemption for any activity carried out in connection with the construction or use of a vehicular crossing or an access track that does not impound water, being activity carried out in, on or under waterfront land relating to a minor stream. It is by no means clear how that exemption applies to the licence granted by the Minister to Roger and Annette in respect of Marshalls Ponds Creek.

Conclusion

1. In light of the conclusions reached above, Roger and Annette cannot succeed in their claims for relief. They have not established facts that would justify a conclusion that they were entitled to anything other than a licence at will or, at best, a licence that was terminable on reasonable notice. It has not been suggested that there was a lack of reasonable notice given by Robeena in revoking any licence that had been given by Ian and Robeena. Certainly, there was no pleading to that effect.
2. There is no basis for concluding that Robeena is estopped from denying that any licence granted by Robeena and Ian was irrevocable so long as Roger and Annette or Roger alone had ownership of Roydon and Wallam. Accordingly, all claims for relief by Roger and Annette should be dismissed. On the other hand, Robeena may be entitled to succeed on her cross-claim for damages. However, I do not propose to make any orders at this stage. Rather, I will direct Robeena to bring in short minutes of directions for the further conduct of the proceedings insofar as issues of damages and costs remain to be resolved.

Endnote

1. See Watson v Foxman (1995) 49 NSWLR 315 at 319 and Clifford v Vegas Enterprises Pty Ltd (No 5) [2010] FCA 916 at [132].

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: 29 September 2017