Wantagong Farms Pty Ltd as Trustee for the Bulle Family Trust v Bulle

Factual background

1. As I have said, Robert was still in primary school when the family moved to Ardrossan. It is apparent that Mr and Mrs Bulle worked very hard at improving the Properties and establishing a successful farming business on them, as did Michael and Robert when he was not at school. Even in his early years, Robert exhibited a particular interest in and aptitude with livestock.
2. In late 1984 or early 1985, the family acquired Kurrawamby, which, as is apparent from the attached map, is adjacent to Ardrossan. Kurrawamby is approximately 440 hectares. The purchase price was $462,094. It was owned as to 50 percent by Michael, 25 percent by Mr Bulle and 25 percent by Robert, who was in year 10 at the time. The purchase price was financed in part by a loan of $200,000 from the ANZ Bank. Robert did not contribute to any part of the purchase price. However, from the end of 1986, after he left school, he contributed the sum of $1,675 per quarter towards the loan repayments. Having regard to interest rates at the time, that was less than 25 percent of the quarterly repayments due on the mortgage. In all, Robert paid approximately $55,000 in respect of the acquisition of Kurrawamby. Following its acquisition, Kurrawamby was, at least until 2006, farmed as a joint enterprise with the Properties.
3. After Robert left school he returned home for a couple of years and worked on the farm. He was not paid a wage during that time, but he lived at home in the main house and his living expenses were paid by his parents or the Trust and he was occasionally given some money by them. He also earned some income off the Properties shearing. In addition, Mr and Mrs Bulle operated a small South Suffolk sheep stud in which Robert had shown a particular interest and which, at some stage, they gave to him. From that time Robert paid some of the expenses of the stud and also earned some income from it. Robert says in his affidavit evidence that, in 1986 his father told him that he should take over responsibility for paying annual registration fees and show expenses in respect of the sheep stud and also said "Later on the sheep and property will be yours". However, Robert gave a different account of the conversation in cross-examination that made no mention of the property being his. In my opinion, it is unlikely that Mr Bulle said the words attributed to him. Robert had just left school. It was not clear what he would do. As will become clear, Mr and Mrs Bulle had not reached any decision by this stage concerning what was to happen to the Properties. I do not accept that there was any mention at this time of the Properties being Robert's at some time in the future.
4. At about the time Robert left school, Mr and Mrs Bulle decided to establish a cattle stud. The cattle stud, which became known as Ardrossan Angus, was established with the assistance of Neil Sanderson, a son in law of Mr and Mrs Bulle who was experienced in genetics and was an embryo transplant technician. The plaintiffs incurred the cost of establishing the business and a significant proportion of the current stud stock can trace its bloodline back to a cow that was purchased by the Trust in those early days.
5. As I have said, in 1988 Robert moved to Queensland where he worked as a Jackaroo. However, not long after he left, his father asked him to return to Ardrossan to help run the farm, which is what Robert did. Initially, Robert lived in the main house and did similar work to the work he had done before he left for Queensland. Again, he was not paid a wage. Subsequently, Robert moved into a cottage on Ardrossan and then into the shearer's quarters. He started going out with Sally in 1989 and, as their relationship developed, she assisted Robert around the farm with stock work, mustering and assisting in the cattle yards and the shearing shed, drenching and marking. At that time, she lived at home with her parents and would also help her family on their property. In 1990, she commenced a Bachelor of Education at Charles Sturt University in Wagga Wagga.
6. On returning home, Robert soon developed an interest in the cattle stud business. He started researching genetics and pedigrees. He read numerous catalogues and journals. In 1989, he travelled to New Zealand and spent about six weeks researching Angus herds and bloodlines. As a result of that trip, he also decided in April 1989 to import a second South Suffolk stud ram from New Zealand. He raised that idea with his father who Robert says said to him "You can pay all the importation fees and the costs involved in importing the ram as the sheep and property will be yours in the future anyway". Again, however, Robert gives a different account of this conversation in cross-examination which makes no mention of the Properties. Again, I do not accept that the Properties were mentioned. Mr and Mrs Bulle had made no decision on that topic. Robert had only recently returned home. The subject matter of the conversation was the sheep stud. It is unlikely in that context that Mr Bulle would have said anything about the Properties.
7. Robert continued working on the Properties and assisting with improvements, including the building of a stone entrance. He also continued his research in relation to breeding Angus stud cattle and Sally began to share that interest. They went on a trip to New Zealand together to do further research.
8. Neil Sanderson's involvement in the Ardrossan Angus business ceased in 1993, when he returned to live permanently in New Zealand. At that time, Robert suggested that the family import semen from a bull known as "Koiro Massive 267", that they start breeding a different style of stud cattle and that they cull 80 percent of their existing stud herd. His father agreed. They also used semen from another bull known "Kaharau Zulu 605". The results were a success and the stud gradually began to grow. It started conducting Annual Beef Week Field Days that attracted substantial interest. A great deal of preparation was done by both Robert and Sally for those days.
9. Robert gives evidence that in about 1994, he was working with his father. During the course of an argument concerning fly blown sheep, his father said to him: If you leave the property you will get nothing. It is difficult, however, to make anything of this statement. On Robert's own evidence, it was said in the heat of the moment. As will become apparent, it is completely inconsistent with the way Mr and Mrs Bulle have treated their other children who have not worked on the farm.
10. On 2 December 1994 there was a family meeting. It was attended by Mr and Mrs Bulle, Michael, Robert and most of the other children, Mr Graham Fuller, an accountant and Messrs Bill Thompson and John Dillon, solicitors. The purpose of the meeting was to come up with a plan for what would happen to the farm if Mr and Mrs Bulle should die in the foreseeable future. Detailed minutes were kept of the meeting. The minutes record the following among other things: (6) The aims of [Mr and Mrs Bulle] are to be considered on the basis as to what would happen with the various Assets referred to above [the various parcels of land and trading entities owned or controlled by Mr and Mrs Bulle] if [they] were to die in the foreseeable future. It was agreed that as time goes by and circumstances change that the Wills and Business structure will have to be further adjusted. … (7) A key aim of [Mr and Mrs Bulle] was to recognise each family member and give acknowledgement to the different family members contribution such as the fact that Michael has worked on the farm for 19 years and Robert has been working on the farm for a number of years. Various options were discussed including a continuation of the Trust, which would employ Michael and Robert and any other family member who wanted to work on the farm or which would lease some or all of the land to Michael and Robert. Nothing, however, was resolved.
11. In 1995, Mr Bulle arranged to purchase Humewood, a property of approximately 113 hectares, which is bordered by Ardrossan on two sides, McMillans on one side and the main road on the fourth side, for $225,588. According to Robert, his father said to him at the time: I'll pay for the block if you take your 25% share out of "Kurrawamby". You will then get "Humewood". When "Humewood's" paid off you can run some stock on an equivalent area within the operation of your own. It makes sense for you to buy it in your name because later on you will have Ardrossan. I don't want the Trust to purchase any more land. Robert agreed to the proposal and Humewood was bought in his name. Following its acquisition, Humewood was integrated into the farming business that was carried out on the Properties and Kurrawamby.
12. The Ardrossan Angus business continued to expand. The day to day work was done by Robert and Sally, although most of the expenses were still borne by the Trust and Robert still required his father's approval to significant business expenses.
13. Robert and Sally married in 1996 and moved into a cottage on Ardrossan. Robert continued to receive sporadic distributions from the Trust. Robert and Sally did not pay rent while they lived in the cottage, but they undertook at their own expense some major improvements to it.
14. In 1997, Robert and Michael travelled to Melbourne to discuss succession plans in respect of the farm with their uncle Hans, who had had earlier discussions with their father in relation to that issue. They had dinner at a restaurant in St Kilda at which time Hans said to both of them: Your father is going to gift his share of "Kurrawamby" to Mick as well as give to Mick machinery and fully stock his property with livestock debt free. He is then going to lock up the value of "Ardrossan" at current market value of $2 million and at a later time Rob you can purchase it for that amount. Robert said: There's no discount for the work I've done. What if they die tomorrow? What if the price goes down? Hans replied: I can't believe you said that. The price won't go down. It will always go up. The discount comes in time as value goes up.
15. Following that conversation, Robert and Sally continued to work on building up the Ardrossan Angus business. They, and Robert alone, went on a number of trips overseas, to further their knowledge. In 1996-97, they moved into selling frozen embryos and in 1997 they began selling pregnant recipients. They hosted over 800 people in November 1997 as part of the World Angus Forum. Mr and Mrs Bulle, Michael, Sally and Robert were all involved in the planning and implementation of that event. They built new yards for the event and, following the event, they began to get clients from overseas. Since that time, Ardrossan Angus has established an international reputation and has clients in New Zealand, South Africa, Brazil, Argentina, Canada, Russia, Kazakhstan, Turkey, China, Japan, the Falkland Islands, and the European Union, including the United Kingdom.
16. In about 1998, the family built a sales arena on Ardrossan to increase on‑farm sales. In late 1997, or early 1998, Robert proposed building laneways into the cattle yards and a cattle weaning yard. His father's response to that suggestion was: I don't want to spend any more money. You can do that when you have the place.
17. In about 2000, a property opposite Ardrossan came up for sale. Robert suggested to his father that they buy it. In response, his father said: I don't want any more land, you buy it. It is you that will end up with "Ardrossan".
18. In late 2001, Mr and Mrs Bulle executed a series of documents, including their wills, to give effect to their succession plan. At about the same time, Mr Bulle gave his interest in Kurrawamby to Michael.
19. The arrangements in relation to the succession plan are complicated. However, in essence, each of Mr and Mrs Bulle by their wills left the other their estate. The survivor then left his or her personal effects to be divided among the 12 children. Robert was left the shares in Wantagong Farms and instructions were left for the executors to appoint him sole director of that company. In addition, testamentary trusts were created in respect of each of the other children except Michael. Each trust was to receive the sum of $200,000, which was to be increased by reference to increases in the Consumer Price Index. To the extent that there was a shortfall in the amount to be received by each trust from Mr and Mrs Bulle's personal estates, that shortfall was to be made up by a capital distribution from the Trust. In addition, one-fifth of the total number of livestock owned by the Trust was to be given to Michael and he would receive half the equipment. The residue (if any) of the estate was to be divided between the 12 children. The practical effect of these arrangements was that, if Robert wanted to keep Ardrossan, he would have to pay out the legacies of $200,000 given to each of his siblings (other than Michael) to the extent that they were not covered by Mr and Mrs Bulle's personal investments.
20. Clause 14 of each will recorded the following: I RECORD that I have not further provided for my sons MICHAEL JAMES BULLE and ROBERT JOSEPH BULLE ("my Sons") for the following reasons:- 14.1 Prior to the making of this my Will, I consulted at length with my Sons and reached certain agreement with them in relation to assets of the "Bulle Family Trust" ("the Trust"). 14.2 Contemporaneously with signature of this my Will I have executed a Memorandum of Wishes in relation to the Trust, as well as other ancillary documents intended to ensure certain provision to each of my Sons from assets of the Trust. 14.3 Each of my Sons acknowledged to me that their entitlements from assets of the Trust were adequate and acceptable to them in satisfaction of any claims they may have for further provision from my estate.
21. At about the time Mr and Mrs Bulle made their wills the Primary Industy Bank of Australia Limited, in connection with an application for finance for working capital, valued Ardrossan at $2,596,450.
22. Robert was not shown a copy of any of the documents signed by his parents. However, he deposes to a number of conversations he had with his parents concerning their succession plans, which are not disputed. In one, which he says occurred in about 1999, his father said to him: We want "Ardrossan" to go ahead and we want you and Sally to develop the business and take it forward and we want you to have it with your family and children. In another, Mr Bulle said: You're going to have to pay $200,000.00 to your 10 siblings after the last survivor of your mother and I. You will have two years to come up with the money. Robert replied: Why don't we pay them off on the drip. We could start paying them now so that they can educate their kids etc. We could pay them $10,000.00 each a year for the next 10 years, $100,000.00 in total per year. In response, his father said: You won't have to come up with the money all at once. Most of them don't need it and won't want it and will be happy to leave all their money and you just pay them the interest.
23. In his affidavit in chief, Robert said that this conversation occurred in about 1999, but when cross-examined, he gave inconsistent evidence concerning when the conversation occurred and at one point he accepted that it occurred at the end of 2001 or in early 2002, when his father told him about his succession plan. Although in final submissions Mr Roberts SC, who appeared for Robert and Sally, submitted that Robert's recollection in his affidavit was correct, it is more likely that the conversation occurred at the end of 2001 or in early 2002. Robert accepts that his father told him about his succession plan and discussed it with him. It is likely that that discussion occurred shortly after the plan was put in place; and the conversation Robert says occurred in 1999 is consistent with a conversation in which Robert was told about the succession plan.
24. Robert says that that was the first occasion his parents mentioned that he would have to pay his siblings (other than Michael) $200,000 each. He says that there was no mention of interest at the time.
25. Robert understood that the arrangements his parents had put in place did not give him any certainty. He gave the following evidence: Q. You wanted something in writing? A. Yeah, we did. Q. And you never got it, did you? A. No. Q. And the reason you wanted something in writing was because you knew [your father] would change his mind? A. He always did. Always - always ‑ yeah, well, he always ‑ he'd never commit to anything. Q. You were also concerned throughout this whole period that wills can be challenged by other family members? A. Correct. Q. Insofar as the succession plan concerning Ardrossan was in [your father's] will, you were concerned that one day one of your brothers or sisters might challenge [the] will? A. I was concerned about notional estate later on.
26. Robert says that he raised his concerns in a discussion with his parents around the kitchen table in about 2002. He says that during that conversation he said: Our own assets have always been income producing for the Trust and no lease or adjustment [sic] has ever been paid. Who are we working for? Sally and I or the rest of the family? We need some security. His father replied: I have locked up the value of the land so that the ones who worked the farm don't have to pay for all the capital growth and can see the fruits of their labour. Your Mother and I are looking at doing a lease arrangement and the stud cattle will be yours and then eventually the property will be yours. A Lease will be the first step.
27. Robert, however, accepts that he never got an assurance during that meeting. He gave the following evidence: Q. You in 2002 you were at the main house with mum and dad, sitting at the kitchen table, attempting to discuss the concerns that you and Sally had for the future. We wanted some confirmation in writing as to what had been agreed. A. Yep. Q. Do you say that you asked for something in writing? A. Well, we want ‑ yeah, we did. Q. You did? A. We did. Q. You didn't get it, did you? A. No. No. Q. They refused to give it to you? A. Well, [my father] would agree at the time, but he would never follow through. Many times we had the discussion with the machinery and other things since, and he would agree and mum would say, "Yes. Yes, [Reis (Mr Bulle)], it's a good idea. We should do this". But he'd never follow through into it. Q. You knew he could change his mind, didn't you? A. The same as 1994. We discussed it and he never followed through. Q. You knew that [your father] was leaving to himself the right to change his mind, wasn't it? A. Well, perhaps. Yeah. Q. That's what you understood. That's why you were concerned, isn't it. Don't read it out. Just answer my question, if you would. A. Yeah. Well, we were concerned about our future. We wanted some security. We were working hard. Q. You didn't have any security, did you? A. No. Q. You agree with me? A. Yeah.
28. There were further discussions between 2002 and 2006 concerning Mr and Mrs Bulle's succession plans. In 2003, Mr Bulle told Robert that he planned to give Robert the Ardrossan Angus Stud and on a number of occasions during that period, they had a discussion in which Robert's father said to him: We want $200,000.00 to lease the place plus GST and it will just roll-on after that.
29. Following a trip to the United States in 2003, Robert told his father that he would like to import some embryos of some very elite cows. His father replied "I think you should buy them. Soon it will be your herd, not ours". Robert says that on that basis, "We invested some $100,000.00 of borrowed funds to invest in these elite genetics", although the actual costs of the embryos, which was approximately $42,000, was paid by Wantagong Farms.
30. There were further discussions in 2004 and 2005 about the terms of a proposed lease, and the division of stock and machinery between Michael and Robert.
31. In 2005, Robert and Sally bought a property known as "Glenville", using Humewood as security. Previously a partnership between them and Michael and his wife leased that property and another one known as "Silverhills", where they carried on a farming business. Robert and Sally leased Glenville back to the partnership, which continued to carry on the farming business on Glenville and Silverhills.
32. Mr and Mrs Bulle made new wills in 2005. The principal change made in the wills was that the survivor of them left their personal savings and investments to be divided between the children other than Robert in equal shares. The result was that Robert became liable to contribute the whole amount of the ten testamentary trusts if he wanted to keep Ardrossan, which was consistent with the discussions he had had with his parents. The statement previously in cl 14 of each will concerning the provisions made for Michael and Robert were re-stated in cl 13 of the new wills, except that the statements were now confined to Robert.
33. It is apparent that from at least about 2000, Robert took over responsibility from his father for running the farm, although his father retained control of the finances. It is not easy, however, to determine just what that involved. Robert and Sally submit that the lion's share of the profits derived from the farm during this period, which was largely generated by their efforts, was funnelled back into the Trust and distributed to Mr and Mrs Bulle for their own use or to be paid into their superannuation funds. Certainly, much of the profit of the farm was distributed to Mr and Mrs Bulle. The financial statements for the trust show that during the period 2001-2005, $846,989 was distributed to Mrs Bulle and $665,980 was distributed to Mr Bulle. In the same period, $141,500 was distributed to Robert and Sally and $145,289 was distributed to Michael and his wife. However, that gives an incomplete picture. It is apparent that the farming activities on the Properties were run in conjunction with the farming activities carried on by the partnership between Robert and Sally and Michael and his wife and that the Trust made payments to that partnership in connection with those activities. In addition, it is apparent that Michael contributed to the farming activities on the Properties and it is not possible on the evidence to determine the relative contributions of him and Robert. The likelihood is that they both continued to work hard to make the farm a success.
34. A draft lease of the Properties to Robert and Sally was prepared in early 2006, which Robert discussed with his parents. During those discussions, Robert suggested that the value of capital improvements should come off the rent. His father replied: There will be no lease credits. I have locked up the value of the property at 2 million dollars and you will be paying for all improvements.
35. On 1 April 2006, the lease was executed. At the same time, Mr and Mrs Bulle gave the Ardrossan Angus stud business to Robert and Sally. The gift included the stud cattle, the stud records and intellectual property associated with the business, including the name of the business, although the stud cattle are still recorded in the Trust's financial records as being owned by it, and at one point the solicitors for the plaintiffs incorrectly denied that the gift had been made.
36. As I have said, the initial rent under the lease was $200,000 plus GST per annum. One half was to be paid on or before 31 December 2006, and the other half was to be paid on or before 31 March 2007. After that time, rent was payable quarterly in advance and was to be adjusted in accordance with increases in the Consumer Price Index on each anniversary date of the lease.
37. Clause 20 of the lease was relevantly in the following terms: 20. Livestock (as per the list attached and marked "Y") 20.1 The lessee shall lease the lessors herd as it stands now. 20.2 All natural increases in the herd is the property of the lessee's. 20.3 At the expiration of the lease the lessee shall deliver a similar number, age, quality and quantity and type of livestock as stands now. ... There was no attachment to the lease. However, it is accepted that a list of the livestock was set out in a letter dated 26 April 2006 from Brian Unthank Rodwell addressed to Mr and Mrs Bulle, Robert and Sally. Consistently with the gift of the stud livestock to Robert and Sally, the letter only listed the commercial herd, which was valued at $1,458,500.
38. Clause 21 of the lease provided: The lessee shall not erect or build any improvements without the lessor's consent.
39. Clause 23 of the lease gave Robert and Sally an option to buy the small parcel of land that formed part of Ardrossan which was owned by Mr and Mrs Bulle personally.
40. A replacement lease was entered into on 1 January 2008. The replacement lease was in substantially the same terms as the lease signed on 1 April 2006, except that it confirmed that rent for the first year had been waived. There is a dispute concerning why the first year's rent was waived. Robert says that it was because shortly before the lease was entered into Wantagong Farms had sold all the saleable cattle and consequently there was nothing for Robert and Sally to sell. A letter from Mr and Mrs Bulle's solicitor suggests that rent was waived because of a severe drought in the year, and that is consistent with evidence given by Sally. The latter explanation seems more plausible. If the former explanation were correct, it is to be expected that the adjustment would have been included in the lease itself. Nothing, however, turns on the issue.
41. Robert and Sally operated Ardrossan Angus throughout the term of the lease. They also ran commercial cattle and sheep on Ardrossan. Although the stud business was clearly separate from the farming activities carried out on the Properties, it would have been difficult for Robert and Sally to re-locate the stud business at that time. It required the infrastructure on the Properties and the evidence is that it would be difficult to run a successful stud business separately from a commercial herd. Each business supported the other. It is doubtful that at that time Robert and Sally had the financial resources to buy or lease a suitable property and commercial herd to enable them to operate the cattle stud business successfully at another location.
42. During the term of the first lease, Robert and Sally made a number of improvements to the Properties which, according to Robert, were discussed with his parents. They also continued to make improvements to the cottage in which they lived. However, the cost, let alone the value, of those improvements is unclear. The evidence of the costs incurred by Robert and Sally is incomplete. Many of the costs they say they incurred appear to be operating expenses or were costs that they were required to incur under the lease.
43. On 3 February 2009, Robert and Sally exercised the lease option.
44. Mr and Mrs Bulle adopted a new succession plan in May 2010. Their wills, both dated 21 May 2010, were in substantially the same terms as their earlier wills except, under the terms of the wills, the survivor of the two left McMillans to Joanne, one of their daughters, and the small parcel of land owned by Mr and Mrs Bulle that formed part of Ardrossan was left to Robert.
45. According to Robert, things continued to go smoothly until about 2011, when Joanne returned home to live with her parents. She had recently been made redundant from her job and was suffering problems with her health. From that time, Robert says that his relationship with his parents began to change and to become more difficult. They argued about how the farm was being operated.
46. By the time the term of the second lease had expired, relations were very tense. On 23 February 2012, Fleming Muntz, the solicitors for the plaintiffs, wrote to Robert and Sally proposing a new lease for a further term of three years with a three year option. The proposed lease contained a number of amendments, principally dealing with how the Properties were to be operated. The option to purchase the small block owned by Mr and Mrs Bulle that formed part of Ardrossan was removed, since that property was now to pass to Robert under the wills. The letter enclosing the proposed lease specifically asked that Robert and Sally not make contact with Mr and Mrs Bulle in relation to the proposed lease and requested that all communications regarding the lease be made through Fleming Muntz.
47. On 29 March 2012, Kent McRae, Lawyers, responded to that letter on Robert and Sally's behalf. The response said: I have advised my clients that an arrangement whereby they agreed to purchase "Ardrossan" from your clients for $2,000,000 would be more appropriate than a continued lease of the property. The purchase of the property would give to my clients certainty of title which would allow them more confidence about the continued development of the property.
48. There was further correspondence between the parties and their solicitors. However, neither side changed its position. It was Robert and Sally's position that something should be done to give them certainty in relation to what they understood was their entitlement to purchase the Properties at the "locked-in" price of $2,000,000. On the other hand, it was Mr and Mrs Bulle's position that they were not prepared to give the certainty sought.
49. There was a meeting between Mr and Mrs Bulle, Robert and Sally and Graeme Edwards, who is married to Cathryn, one of Mr and Mrs Bulle's daughters, at the Commercial Club in Albury in June 2012 in an attempt to reach a resolution. The meeting lasted three hours and various issues were discussed, including the terms of a new lease and the fact that the plan that had been put in place by Mr and Mrs Bulle was open to challenge by one of their children on the basis that Ardrossan formed part of their notional estate for the purposes of a family provision claim. During that part of the discussion, Mr Bulle produced what he called his "black bible" which was a folder containing the documents giving effect to his and his wife's succession plan. He said: There it is, you have seen it. I spent over $20,000 preparing this estate plan and I [sic] not going to change it. You are getting the place for $2 million and that is it. Robert replied: That's very good but the problem is that it can be challenged at a later date or changed. His father replied: That's not my problem. That's your problem. No agreement was reached at the meeting, which was left on the basis that both sides would consider different proposals and consult with their solicitors.
50. That, however, did not happen. On 26 June 2012, Mr and Mrs Bulle altered the documents giving effect to their succession plan. The effect of those amendments is to provide that their 12 children share equally in the estate of the last to survive of Mr and Mrs Bulle and the income and capital of the Trust. In about January 2013 Robert, Sally and their children moved from the cottage on Ardrossan first to Sally's parents and then, in about April 2013, to a property they bought known as "Noonameena", which consists of 71 hectares. Robert and Sally were requested to vacate McMillans by 30 June 2013, which they did. However, Mr and Mrs Bulle agreed to extend the lease over Ardrossan until 31 December 2013 on certain conditions. In late 2013, the lease over Ardrossan was extended for a further six months. However, on 23 May 2014, the lawyers for Wantagong Farms demanded vacant possession and a return of the livestock by 30 June 2014. Robert and Sally have refused to comply with that request and have not paid rent in respect of the period after 30 June 2014.
51. It is apparent that, since Robert and Sally were given the Ardrossan Angus business and took a lease of the Properties, they have developed a very successful farming business. Before 2006, they had very few assets of their own. In contrast, according to records prepared by their accountants for the financial year ended 30 June 2014, they and their associated entities, including superannuation funds, had net assets at that time of $7,683,821. It is not possible to tell from the records what proportion of those assets relates to Ardrossan Angus. Since that time, they have bought Talmalmo Station for $4.2 million using borrowed funds.
52. The evidence is that Ardrossan is now valued between $7.1 million and $7.65 million. The parties agree that the value of McMillans is between $550,000 and $580,000.

Relevant legal principles

1. It is well recognised that a court may grant relief to make good an equity founded on "an assumption as to the future acquisition of ownership of property which had been induced by representations upon which there had been detrimental reliance": Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101 at 112 per Gleeson CJ, McHugh, Gummow and Callinan JJ. The relevant equitable doctrine on which relief of this nature is founded is generally termed "estoppel by encouragement" and is identified as a type of proprietary estoppel: K Handley, Estoppel by Conduct and Election (2006, Sweet and Maxwell) at p 163; J D Heydon, M J Leeming, P G Turner, Meagher, Gummow and Lehane's Equity Doctrines and Remedies (5th ed, 2015, LexisNexis Butterworths) at p 519; Milling v Hardie [2014] NSWCA 163 at [36] per Macfarlan JA.
2. Handley AJA explained the doctrine in these terms in Delaforce v Simpson-Cook [2010] NSWCA 84; (2010) 78 NSWLR 483 at [21]: [An estoppel by encouragement] comes into existence when an owner of property has encouraged another to alter his or her position in the expectation of obtaining a proprietary interest and that other, in reliance on the expectation created or encouraged by the property owner, has changed his or her position to their detriment. If these matters are established equity may compel the owner to give effect to that expectation in whole or in part. See also Milling v Hardie [2014] NSWCA 163 at [50] and Van Dyke v Sidhu [2013] NSWCA 198; (2013) 301 ALR 769 at [38].
3. The doctrine includes the following elements: 1. the party alleged to be estopped has encouraged or induced an expectation of a future transfer of an interest in property; 2. there has been reliance on that expectation in the form of a change of position by the party seeking to establish the estoppel; and 3. there has been (or will be) an identifiable detriment to the recipient of the assurance as a result of the change of position, where the expectation is not fulfilled. However, these elements often overlap to a significant extent. As Robert Walker LJ noted in Gillett v Holt [2001] Ch 210 at 225, "the doctrine of proprietary estoppel cannot be treated as subdivided into three or four watertight compartments". The various aspects of the doctrine are ultimately concerned with the overarching question whether it would be unconscionable in all the circumstances of the particular case to permit a departure from the encouraged expectation: ibid. See also Delaforce v Simpson-Cook at [3] per Allsop P.
4. The assurance or encouragement which engenders the expectation of the party asserting the estoppel must possess some level of clarity. In Thorner v Major [2009] UKHL 18; 3 All ER 945 at [56], Lord Walker of Gestingthorpe, adopting the formulation of Hoffman LJ in Walton v Walton (Court of Appeal of England and Wales, 14 April 1994, unreported), put the requirement in these terms: The promise must be unambiguous and must appear to have been intended to be taken seriously. Taken in its context, it must have been a promise which one might reasonably expect to be relied upon by the person to whom it was made. However, the representation or assurance need not be at the level of certainty or specificity that would be required to establish a contractual obligation: Sullivan v Sullivan [2006] NSWCA 312; (2006) 13 BPR 24,755 at [84]; DHJPM Pty Ltd v Blackthorn Resources Ltd [2011] NSWCA 348; (2011) 83 NSWLR 728 at [54] per Meagher JA. As Brooking JA said in Flinn v Flinn [1999] VSCA 109; [1999] 3 VR 712 at [80], "a promise may be definite in the sense that there is a clear promise to do something even though the something promised is not precisely defined, and this has always been recognised in the cases". This is a corollary of the fact that "what attracts the principle is not the promise itself but the expectation which it creates": per McPherson J in Riches v Hogben [1985] 2 Qd R 292 at 301 (cited with approval by the majority in Giumelli at [35]). The certainty can be found in the reasonableness of the representee's interpretation of the assurance and his or her reliance on it: Sullivan v Sullivan at [85] per Hodgson JA.
5. As was explained by Robert Walker LJ in Gillett v Holt at 227-8, "the inherent revocability of testamentary dispositions" is not necessarily a bar to finding that statements of testamentary intention are capable of serving as a basis for a proprietary estoppel as "[e]ven when the promise or assurance is in terms linked to the making of a will [...] the circumstances may make clear that the assurance is more than a mere statement of present (revocable) intention, and is tantamount to a promise" (cited by Handley AJA in Delaforce v Simpson-Cook at [36]). His Lordship acknowledged that "in the generality of cases" it would not be reasonable to rely on a living person's representations as to their testamentary intentions. However, in that case his Lordship found that the expectation was reasonable because the "assurances were repeated over a long period, usually before the assembled company on special family occasions, and some of them [...] were completely unambiguous" (at 228). In Flinn v Flinn, Brookings JA made a distinction (at [75]) between "a promise to leave property by will" as sufficient to found an estoppel on the one hand and an insufficient "intimation of intention to make a will coupled with a disclaimer of an intention not to revoke it". In Barnes v Alderton [2008] NSWSC 107; (2008) 13 BPR 25,281, Young CJ in Eq, following Gillett v Holt and Flinn v Flinn, stated that, in cases involving a representation as to testamentary intention, what is required are "circumstances that the promise was given and understood to be irrevocable. That may be shown by circumstances short of an explicit statement that the promise is irrevocable." (at [58]) The question is whether the person incurring the detriment understood that the maker of the will may change his or her mind, not whether they would do so: ibid, at [51].
6. An essential element of the doctrine is that the party seeking to establish the estoppel has changed his or her position in reliance on the expectation or assumption encouraged by the conduct of the party alleged to be estopped. As McPherson J said in Riches v Hogben, what invites the intervention of equity is "the conduct of the plaintiff in acting upon the expectation to which [the encouragement] gives rise" (at 301).
7. The onus of proving that the encouraged expectation was acted upon on is always on the party seeking to establish the estoppel: Sidhu v Van Dyke [2014] HCA 19; (2014) 251 CLR 505 at 521-3 per French CJ, Kiefel, Bell and Keane JJ.
8. As the majority in Sidhu v Van Dyke said, "it is not necessary that the conduct of the party estopped should be the sole inducement operating on the mind of the party setting up the estoppel" (at 526). Their Honours adopted the approach of the High Court in Newbon v City Mutual Life Assurance Society Ltd (1935) 52 CLR 723, where it was said that where the "supposed belief" was a "contributing cause" of the representee's conduct, that would represent a "sufficient connection between the assumption and the position of detriment" (at 735). In a separate but concurring judgment in Sidhu v Van Dyke, Gageler J said (at 531) that what needed to be established was that "having the belief and taking the belief into account made a difference to [the representee] taking the course of action or inaction: that she would not have so acted or refrained from acting if she did not have the belief."
9. For an estoppel by encouragement to be made out, the party claiming to be entitled to the estoppel also needs to establish that he or she will suffer some detriment if the assumption is departed from: Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 at 674-5 per Dixon J. Handley AJA explained the requirement of detriment in these terms in Delaforce v Simpson-Cook at [42]: "[t]he detriment that makes an estoppel enforceable is that which the party asserting the estoppel would suffer, as a result of his or her original change of position, if the assumption which induced it was repudiated by the party estopped." The relevant detriment is not the loss flowing from the non-fulfilment of the promise. The requirement for proof of detriment "must be approached as part of a broad inquiry as to whether departure from a promise would be unconscionable in all the circumstances": Donis v Donis [2007] VSCA 89; (2007) 19 VR 577 at [20] per Nettle JA.
10. The required detriment must be substantial. Whether the detriment is substantial depends on "whether it would be unjust or inequitable to allow the assurance to be disregarded": per Robert Walker LJ in Gillett v Holt at 232; see also K Handley, Estoppel by Conduct and Election (2006, Sweet and Maxwell) at p 165.
11. Where a proprietary estoppel has been established, the court should prima facie "enforce a reasonable expectation which the party bound created or encouraged": Delaforce v Simpson-Cook at [63]. However, as Macfarlan JA pointed out in Duic v Duic [2013] NSWCA 42 at [20], this does not mean that relief is "limited 'to removing or reversing the detriment suffered by the party entitled to the estoppel' or enforcing 'the minimum equity to do justice to the plaintiff'" ([citing Delaforce v Simpson-Cook] at [56]; and see [3] and [59])."
12. The form of relief that would be appropriate in any given case depends on the circumstances of the particular case. As Handley JA said in Sullivan v Sullivan at [21]: "[t]he relief depends very much on the facts and, as the Privy Council said in Plimmer (1884) 9 App Cas 699, 714: '… the court must look at the circumstances in each case to decide in what way the equity can be satisfied.'" In addition: Relief may be moulded to recognise practical considerations such as the need for a clean break: Pascoe v Turner [1979] 1 WLR 431 at 438-439; Giumelli (at 113-114 and 125); Gillettt (at 237); Jennings (at 115). The Court must also take into account the impact of its orders on relevant third parties and any hardship or injustice they would suffer: Giumelli (at 113-114 and 125); Flinn (at 749 and 750) (Delaforce v Simpson-Cook at [60] per Handley AJA). (at [24])
13. In determining whether a grant of equitable relief is appropriate, it is open to the court to consider circumstances that eventuated after the encouragement or assurance: Delaforce v Simpson-Cook at [61] per Handley AJA. As Macfarlan JA explained in Milling v Hardie [2014] NSWCA 163 at [55], "[t]he court may [...] take account of a supervening circumstance, such as a defendant's unexpected financial reverse, which might justify departure from a promise that has given rise to a proprietary estoppel". It was also said in Duic v Duic [2013] NSWCA 42 at [32] and Milling v Hardie [2014] NSWCA 163 at [55] that the detriment of the party seeking to establish the estoppel could be "amortised" over time as a result of some related benefit accruing to that party.
14. Finally, it was noted by Allsop P in Delaforce v Simpson-Cook that in considering the appropriate form of relief, "[p]roportionality of the claimed interest or remedy to the prejudice or detriment is undeniably a relevant consideration" (at [4]). However, his Honour stressed that proportionality is not to be "transformed into a necessary constitutive element of a cause of action to be pleaded or proved by the party seeking relief", as to do so would be to "elevate one consideration above others" (at [4]). See also Ashton v Pratt [2015] NSWCA 12; (2015) 88 NSWLR 281 at [142] per Bathurst CJ.

The issue of encouragement

1. Robert gives evidence of a substantial number of representations that were made to him, most of which have been set out above. I do not accept that a number of the earlier representations relied on by Robert were made. In any event, the earlier representations - those said to have been made at least prior to the conversation with Hans - are not relied on specifically but rather are said to be part of the background against which the later and more specific representations are to be understood. According to Robert, those more specific representations, which are put in various ways and were made at various times, encouraged him to believe that the Properties would be his for the payment of $2 million, or possibly $2 million plus increases in the Consumer Price Index since 2001. I do not accept that submission.
2. In my opinion, the proper characterisation of the representations that were made to Robert is that they were representations concerning Mr and Mrs Bulle's current testamentary intentions or representations concerning the effect of their then current wills and the other documents they had executed that embodied their succession plans, and that is the way they were understood by Robert. They were not promises that the Properties would be his sometime in the future for the payment of $2 million.
3. The first serious occasion at which Mr and Mrs Bulle's plans for the Properties was discussed was at the family meeting in 1994. It is apparent from the minutes of that meeting that what Mr and Mrs Bulle were concerned about was what was to happen to the farm after they died. It was also apparent that they had made no decision at that stage, that they wanted to benefit all their children, but that they wanted to give recognition to the fact that both Robert and Michael had worked on the farm for a number of years. It is also clear that they thought that it may be necessary to change any plans that were made as time went by and circumstances changed. That meeting occurred well before many of the representations on which Robert relies were made. But it was obviously an important meeting. It was the first and only meeting at which Mr and Mrs Bulle had gathered the whole family together to discuss their succession plans; and the presence of their lawyers and accountant, and the fact that detailed minutes were taken, suggest that they took it very seriously. Although it took Mr and Mrs Bulle a long time to advance things, that meeting provides part of the context for subsequent discussions concerning the future of the Properties. That context was one in which Mr and Mrs Bulle, in planning for their eventual deaths, were trying to work out how to treat all their children fairly given their different needs and different contributions. It was a context in which they recognised that things may have to change because of changes in circumstances. Those matters were conveyed to the children who attended the meeting, including Robert.
4. The next important meeting was the meeting that Michael and Robert had with Hans some three years later. Again, that was a meeting that was specifically arranged to discuss the future of the Properties. It is hard to see how the meeting could have any other purpose than for Hans to explain to Michael and Robert what their parents' current intentions were in relation to the Properties on their death. It was not for Hans to make promises concerning the Properties. It was apparent from what Hans said that Mr and Mrs Bulle's intention was that Michael should get Kurrawamby and Robert would get the Properties but would have to pay the other members of his family $2 million. It was in that context that, on occasions at around that time, Mr Bulle said that the Properties eventually would be Robert's. He was not making a promise that that was so but rather was stating what he expected to happen consistently with what Robert and Michael had been told by Hans.
5. The next important conversation was when Mr Bulle told Robert about his succession plans shortly after they had been put in place. Robert conceded in cross-examination that his father told him about his succession plan, although he was never shown a copy. Robert understood that what was described to him was a plan that had been put in place but was not one set in stone and was one that was liable to be changed. He explicitly conceded that in cross-examination. Indeed, particularly in later years, a major source of tension was that he wanted certainty that the plan would not change, but he could never get that certainty from his parents. He repeatedly accepted that that was so in cross-examination. Robert's concessions in cross-examination are, in my opinion, fatal to his case.
6. Mr Roberts submitted that the concessions made by Robert were not fatal to his case because they were concessions in relation to the succession plan whereas other promises were made to Robert. I do not accept that submission. Robert conceded that the conversations about which he made the concessions were conversations that occurred in the context of discussing his parents' succession plans with them.
7. Moreover, removed from a discussion of Mr and Mrs Bulle's succession plan, it is more difficult to make sense of what Robert was told. Robert was never shown the succession plan. However, what his parents told him was an important part of it - namely that he would be entitled to the Properites but that he would need to pay the Trust $2 million. In my opinion, it is likely that he was also told that the amount he would have to pay would increase by reference to increases in the Consumer Price Index. That was a feature of the plan and there is no reason why his parents would not have told him that. The conversations occurred a long time ago. Interest was a relatively minor component of what was proposed. It would not be surprising if Robert had put that component out of his mind. Nothing, however, turns on the question whether interest was mentioned or not in the present context. The important point is that if the conversations are divorced from discussion of the succession plan, it is less clear what Robert was being promised. For example, it is not clear what he was paying the $2 million for. Quite apart from the Properties, the Trust owned a valuable commercial cattle herd and the Ardrossan Angus beef stud. If promises were made to Robert that were divorced from his parents' succession plan, it is not clear whether the promises were limited to the land or included the commercial herd and stud business. Similarly, it is not clear when Robert would be entitled to what he says was promised. The relief he seeks in this case suggests that he had an immediate entitlement to whatever was promised on payment of the $2 million (with or without interest). But then what is to happen to his parents? Robert submits that their interests in the homestead on Ardrossan (where they live) could be accommodated by appropriate orders. But in effect, absolute rights that they have in respect of the Properties are being converted into limited rights in relation to the homestead at a time of Robert's choosing. It is difficult to see how that could result from any of the conversations on which he relies.
8. The point of the previous paragraph is reinforced by the fact that Robert and Sally executed the lease. Under the terms of that lease, they undertook various obligations in relation to the Properties. They knew that if they did not comply with those obligations, the lease was liable to be terminated. The lease they signed gave them rights for a period of six years (assuming they exercised the option). At the end of that six year period, they were required to vacate the Properties unless they negotiated a new lease. It is difficult to see how the lease and its terms are consistent with the promises on which Robert relies to found the estoppel he claims.
9. Mr Roberts also relies on the statements made in each of the wills concerning why Mr and Mrs Bulle did not further provide for Robert and, in particular, the statement that they had consulted at length with him and reached certain agreements in relation to the Trust and that he acknowledged those entitlements were adequate and acceptable to him in satisfaction of any claims he may have for further provision from his parents' estates. However, in my opinion, nothing turns on those acknowledgements. Robert was not aware of them so they could not form the basis of any expectation he formed. Nor can they be treated as an admission of the promises on which Robert relies. The agreement was an agreement that, in substitution for any rights that Robert might expect to receive under the will, he was happy to accept what his parents proposed to give to him on the death of the last of them to survive. That agreement operated so long as the wills were in place. But it could not be taken as an admission of an agreement that operated independently of what was provided for in the wills.

Reliance

1. The reliance case has two interrelated aspects. One is whether Robert relied on the promises he said were made for doing what he did. The other is whether he would have acted differently if the promises had not been made. The first aspect of reliance is already answered by the conclusions I have reached. Robert did not rely on the promises because he understood that what he was "promised" could change. He understood that he was taking a risk that that might happen and he decided to take that risk.
2. The second aspect of reliance is tied closely to the issue of detriment. Robert submits that he would have acted differently to avoid the detriment that he now says he will suffer if his parents are permitted to resile from the promises that he says were made to him. I deal below with the detriment that Robert identifies specifically. However, I do not accept that Robert would have acted differently if the promises on which he says he relied were not made.
3. It is necessary to consider what happened as a whole. Robert has no doubt worked hard on the Properties since he was a schoolboy and much was no doubt expected of him for what on occasions may have seemed to be limited rewards, as perhaps might be expected from parents struggling to run a farm and raise and provide for 12 children. However, the fact that Robert was required to work hard, was not paid a significant income by his parents for the work that he did and at times contributed to the costs of the farm and improvements to it tells only half the story. The approach that his parents have taken is to reward Robert over time for the sacrifices he has made. Even before he left school, he was given 25 percent of Kurrawamby without being asked to contribute to 25 percent of its costs. At some stage he was given the sheep stud. He was then given Humewood in exchange for his 25 percent interest in Kurrawamby, and eventually that permitted him to start buying his own properties. In 2006, he was given the Ardrossan Angus business and a lease of the Properties. There is a question of how generous the terms of the lease were. The evidence does not permit that question to be resolved; and little turns on its resolution. The point is that, as a result of the gift of the stud and the lease of the Properties, Robert and Sally have been able to build up substantial assets and a successful farming business of their own. It is not self-evident that that is something they would have been able to do without the assistance that Mr and Mrs Bulle have given them, and they give no evidence themselves of how that could have been achieved.
4. The success of the cattle stud has depended on Robert and Sally's hard work and their natural abilities. But it has also depended on Mr and Mrs Bulle's initial decision to establish a stud, the money the Trust invested in it and the advantages that Ardrossan offered as a location from which to run the stud. There is no reason to suppose that Robert and Sally could have achieved that success independently. Similarly, the gift that was made to Robert of Humewood and the lease of the Properties to Robert and Sally have enabled them to build up substantial assets and a successful farming business. Again, there is no reason to suppose that they would have been able to achieve that success if, instead of remaining on the farm, they had left. In my opinion Robert appreciated those facts. He may have hoped that he would one day inherit the Properties on favourable terms. But whether that happened or not, he appreciated that his best chance of establishing a successful farming business in his own name was by remaining where he was and enjoying the advantages that were offered to him. That is what he chose to do; and, as things have transpired, he was correct in that belief.

Detriment

1. Robert submits that he and Sally suffered the following detriment as a result of relying on the representations made to him: 1. They remained on Ardrossan throughout their working lives and developed the Ardrossan Angus business that bears its name; 2. They developed a well-known and well-recognised Angus stud business that promoted the Ardrossan property; 3. They undertook capital improvements to the Properties both to improve the stud and farming infrastructure as well as significant work to refurbish the cottage; 4. They did not leave to pursue the development of Ardrossan or any stud business on their own property; 5. They changed the capital structures on Humewood so it could be used to benefit the other properties rather than leave the improvements in place so it could be worked as a stand alone property; 6. They did not pursue the purchase of a comparable property at then current prices on which to develop the stud business; 7. They did those things up until the lease for little if any financial reward but to the benefit of the Bulle Family Trust, controlled exclusively by Mr and Mrs Bulle. In doing that they funded the contributions to Mr and Mrs Bulle's superannuation fund while drawing very little funds themselves; 8. Following the commencement of the lease they continued to undertake capital improvements on the property beyond what the lease required them to do. Having regard to the relatively short term of the lease it could not be said that they were able to be amortized over the term of the lease.
2. The first two points can be taken together. It is true that Robert and Sally have remained on Ardrossan developing the Ardrossan Angus business. The likelihood is that they would not have been able to develop that business without the assistance of the Trust and Mr and Mrs Bulle and without remaining on Ardrossan. The business is now theirs. The likelihood is that up to and at the time the business was given to them, they would not have been able to take it elsewhere, even assuming that they had a right to do so. However, in a joint report prepared by Mr Anthony Dowe and Mr Jim Bruce, the stud experts called by both parties, the experts agree that the business would not suffer any significant detriment if moved to another property provided that it remained under the ownership and management of Robert and Sally and provided a suitable property could be found. A suitable property could be up to 150 km or more from Ardrossan. It would need to be large enough to accommodate the animals, of similar quality land as Ardrossan, enjoy a similar climate, have adequate facilities and be accessible in all weather and not be geographically isolated. Robert and Sally gave evidence that none of the properties they now own would be suitable for the business. But the requirements for a suitable property do not appear to be particularly difficult to satisfy; and, in contrast to the position they would have been in had they not entered the lease, they have now built up sufficient assets that the likelihood is that they will be able to acquire a suitable property. Moreover, they were offered a further lease of the Properties, which they refused to accept. If they had accepted that lease, they could have continued to operate the cattle stud at Ardrossan, while looking for a suitable alternative. To the extent that Robert will now suffer a detriment because no alternative property is immediately available, that detriment arises from his own conduct.
3. Points (c) and (h) can be taken together. I accept that Robert and Sally made capital improvements to the cottage. However, they also lived in the cottage rent free. They had the benefits of the improvements while they lived there. In those circumstances, I do not regard the capital improvements to the cottage as a substantial detriment. Robert and Sally may also have made some capital improvements to the Properties, although, as I have said, the value of those improvements have been exaggerated, and it is not clear how much of the amount that they spent is properly treated as capital expenditure. Moreover, they have had the benefit of that capital expenditure from the time it was incurred up until today. The capital expenditure they did incur must be seen in the context of what they obtained as a whole. Again, I am not satisfied that the capital expenditure that they did incur can be regarded as a substantial detriment.
4. Points (d) and (f) can also be taken together. Implicit in them is the contention that Robert and Sally would have been better off at some stage leaving Ardrossan and pursuing a stud business on their own. However, as I have said, it is difficult to see how that could have been the case. The Ardrossan Angus business was not theirs before 2006. Prior to entry into the lease, they did not have sufficient resources to buy their own property and establish a stud cattle business. Now they do. Far from suffering a detriment by remaining at Ardrossan, their position has been improved substantially.
5. As to (e), the evidence is that some changes were made to Humewood in the expectation that it would be run as an integrated whole with the Properties. There is no evidence concerning the costs of those changes. Robert and Sally have obtained the benefit of those changes during the course of the lease. There is no evidence concerning what would need to be done now to operate Humewood in conjunction with the other properties that they own. Again, it is necessary to consider what happened as a whole. Taking those matters into account, in my opinion, the changes to Humewood were not a substantial detriment.
6. As to (g), again it takes into account only one part of the picture. What is necessary is to consider whether taking the circumstances as a whole, Robert suffered a substantial detriment. For the reasons I have given, I do not think that he did.

Conclusion

1. One other point should be made, which is implicit in what I have already said. At the time that Mr and Mrs Bulle put in place their original succession plan at the end of 2001 and told Robert that that is what they had done, what they sought to do was to give Robert the opportunity of acquiring the family farm from his siblings at a price that represented what at that time they must have thought was a generous but not overly large discount to its actual value. It was uncertain for how long Mr and Mrs Bulle would continue to live. But in part they sought to protect future investment by Robert in the Properties by "locking in" the price that he would have to pay; and in part they sought to protect his siblings against the effects of inflation by adjusting the price Robert would have to pay by reference to increases in the Consumer Price Index. Since that time, Robert has benefitted from the Properties (together with his own hard work), in ways that almost certainly were not anticipated at the time Mr and Mrs Bulle put their succession plan in place. In particular, he has been given a valuable business and he has enjoyed the benefits of the family farm for a period close to ten years and has built up substantial assets of his own over that period. On the other hand, the value of the Properties has increased to a degree that no doubt was not anticipated at that time, with the result that if the plan remained in place Robert would be benefitted at the expense of his siblings in a way that was neither anticipated nor intended when his parents sought to achieve a just distribution of the assets that they had accumulated. In my opinion, it would not be unconscionable to permit Mr and Mrs Bulle to depart from the plans that Robert seeks to enforce in the circumstances that have arisen.

The claim for mesne profits

1. Mr and Mrs Bulle claim mesne profits calculated by reference to the rent that was payable in respect of Ardrossan at the time the lease in respect of McMillans was terminated. That amount is $51,006.17 per quarter including GST from 1 July 2014 until the date Ardrossan is vacated. It was not suggested that that method of calculating mesne profits was inappropriate. There is no reason why the defendants should not pay interest on the overdue amounts at court rates.

Orders and costs

1. The plaintiffs have been successful in the proceedings. They are entitled to possession of Ardrossan and to rent from 1 July 2014 until the date the defendants vacate Ardrossan. The defendants' cross claim should be dismissed. There appears to be no reason why the defendants should not pay the plaintiffs' costs of the proceedings, but before making an order to that effect I will give the parties an opportunity to be heard on costs if they wish to be.
2. The parties should bring in short minutes of order to give effect to these reasons for judgment within 14 days of today's date. If they cannot agree on the terms of the short minutes of order, the matter should be relisted by contacting my Associate.

Amendments 08 March 2016 - Typographical errors [70] and [72] change "[2013] NSWSC 42" to "[2013] NSWCA 42" 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: 08 March 2016